People v. Combs, Docket No. 88394

• Decision Date: 17 July 1987
• Docket Number: Docket No. 88394
• Citation: 160 Mich.App. 666,408 N.W.2d 420
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lane E. COMBS, Defendant-Appellant. 160 Mich.App. 666, 408 N.W.2d 420
• Court: Court of Appeal of Michigan — District of US

Page 420

408 N.W.2d 420

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lane E. COMBS, Defendant-Appellant.

Docket No. 88394.

160 Mich.App. 666, 408 N.W.2d 420

Court of Appeals of Michigan.

Submitted Feb. 12, 1987.

Decided April 13, 1987.

Released for Publication July 17, 1987.

[160 MICHAPP 667] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div. and Graham K. Crabtree, Asst. Pros. Atty., for the People.

Robert M. Lustig, Southfield, for defendant-appellant.

Before HOOD, P.J., and MacKENZIE and PAJTAS ^*, JJ.

PER CURIAM.

Following a bench trial, defendant was convicted of carrying a concealed weapon in a [160 MICHAPP 668] vehicle, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424. He was sentenced to pay a $500 fine and $500 in costs or serve six months in the Oakland County jail. Defendant appeals his conviction, alleging first that the weapon which served as the basis for his conviction was acquired by the police during a search and seizure conducted in violation of his right to post interim bond and, secondly, that the trial court erred by not requiring the prosecutor to prove that defendant knew he did not have a valid license to carry the weapon. We find both arguments to be without merit and accordingly affirm.

On June 22, 1984, at approximately 10:45 p.m., Michigan State Police Officers Randall Schnotala and Herta Hopton were patrolling I-696 when they observed a 1984 Corvette parked in a median area designated as a turnaround for emergency vehicles. After Officer Schnotala approached defendant and advised him that he was going to issue him a citation for improper use of a freeway turnaround, the officer returned to the patrol car to write the citation and to run a LEIN check on defendant and the Corvette. The LEIN check revealed that defendant's driver's license had expired and that there was a bench warrant with bond set at $50 for defendant's arrest on a misdemeanor charge of having illegally stored a junk vehicle.

Upon approaching defendant again, Officer Schnotala found him "pacing back and forth next to his Corvette" and appearing "very agitated." The officer advised defendant that there was a warrant for his arrest and began to conduct a pat-down search of defendant. Schnotala testified that, as he reached forward to pat down defendant, he observed a bulge in defendant's waistband and felt what appeared to be a weapon. He removed a loaded .44 caliber revolver from defendant's waistband. Officer Schnotala said that he fully intended [160 MICHAPP 669] to afford defendant the opportunity to post bond on the misdemeanor at the scene, but not until after defendant had been placed in custody.

Defendant first contends that under interim bond provisions of the release of misdemeanor prisoners act, M.C.L. Sec. 780.581 et seq.; M.S.A. Sec. 28.872(1) et seq., as amended, Officer Schnotala was required to inform defendant of his right to post bond on the outstanding misdemeanor warrant before conducting a pat-down search for weapons. According to defendant, the fruits of the pat-down search must be suppressed because he was not given the opportunity to post bond and go on his way before the officer searched him.

Section 2 of the act, M.C.L. Sec. 780.582; M.S.A. Sec. 28.872(2), provides that, when any person is arrested with a warrant for a misdemeanor, the interim bond statute shall apply. At the time of defendant's arrest, the interim bond statute, M.C.L. Sec. 780.581; M.S.A. Sec. 28.872(1), as amended, provided in relevant part:

"(1) If any person is arrested without a warrant for a misdemeanor or a violation of a city, village, or township ordinance, which misdemeanor or violation is punishable by imprisonment for not more than 1 year, or by a fine, or both, the officer making the arrest shall take, without unnecessary delay, the person arrested before the most convenient magistrate of the county in which the offense was committed to answer to the complaint.

"(2) If a magistrate is not available or immediate trial cannot be had, the person arrested may leave with the arresting officer or the direct supervisor of the arresting officer or department, or with the sheriff or a deputy in charge of the county jail if the person arrested is lodged in the county jail, as a bond to guarantee his or her appearance, a sum of money, as determined by whoever accepts the bond, not to exceed the amount of the maximum [160 MICHAPP 670] possible fine but not less than 20% of the amount of the minimum possible fine that may be imposed for the offense for which the person was arrested. The person shall be given a receipt as provided in section 3."

That portion of the above-quoted statute providing that bond may be posted with the arresting officer became effective March 29, 1984. 1983 P.A. 61, Sec. 1.

Defendant asserts that suppression of his weapon was mandated by People v. Dixon, 392 Mich. 691, 222 N.W.2d 749 (1974), and its progeny. In Dixon, the defendant was arrested for a traffic offense and was searched at the scene for a weapon. Nothing else was found. After processing at the station house, an inventory search of the defendant was undertaken while he was detained. That search turned up a small packet containing heroin. Dixon was later convicted of unlawful possession of a narcotic drug. The Supreme Court in Dixon ruled that under M.C.L. Sec. 780.581; M.S.A. Sec. 28.872(1) (prior to the 1983 amendment) the arresting officer was under a duty to inform a person who has been processed following arrest and is about to be jailed on a misdemeanor charge of the right to post interim bond and that "[a]ny evidence gained in derogation of this statutory right [was] to be suppressed." 392 Mich. 705, 222 N.W.2d 749. "[N]o other remedy" said the Dixon Court, "is as likely to assure its full enforcement in the protection of the citizenry at large from unwarranted and unnecessary inconvenience, embarrassment and risk attendant incarceration for a minor offense." Id., pp. 705-706, 222 N.W.2d 749. Following Dixon, several panels of this Court upheld suppression of evidence from searches incident to an arrest for a traffic offense where the defendant was not informed of his right to post interim bail. See People v. Cavitt, 86 Mich.App. 59, [160 MICHAPP 671] 272 N.W.2d 196 (1978); People v. Siegel, 95 Mich.App. 594, 606, 291 N.W.2d 134 (1980), lv. den. 414 Mich. 900 (1982); People v. Garcia, 81 Mich.App. 260, 265 N.W.2d 115 (1978) (Gillis, J, dissenting).

Recently, however, in People v. Chapman, 425 Mich. 245, 387 N.W.2d 835 (1986), our Supreme Court preempted the expansion of Dixon to searches incident to lawful custodial arrest. In Chapman, as here, the defendant was stopped for a traffic offense and a check by police disclosed that defendant was wanted on an outstanding misdemeanor warrant. The officers in Chapman placed defendant under arrest and conducted a pat-down search, which revealed a vial containing a controlled substance in the waistband of defendant's trousers. The Supreme Court ruled that Dixon did not apply to these facts, stating:

"The legislative policy underlying the interim bail statute--avoiding the 'unwarranted and unnecessary inconvenience, embarrassment and risk attendant incarceration for a minor traffic offense'...