People v. Cook

• Decision Date: 22 June 1970
• Docket Number: Docket No. 6034,No. 2,2
• Citation: 24 Mich.App. 401,180 N.W.2d 354
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul COOK, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 354

180 N.W.2d 354

24 Mich.App. 401

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul COOK, Defendant-Appellant.

Docket No. 6034.

Court of Appeals of Michigan, Division No. 2.

June 22, 1970.

Released for Publication Oct. 26, 1970.

Ivan E. Barris, Louisell & Barris, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and DANHOF and O'HARA, ^* JJ.

J. H. GILLIS, Presiding Judge.

On June 4, 1968, defendant Paul Cook was tried by a jury and convicted of kidnapping, M.C.L.A. § 750.349 (Stat.Ann.1954 Rev. § 28.581). He was sentenced to prison for a term of 20 to 40 years. On appeal, defendant alleges an illegal search and seizure and trial error.

The proofs adduced at trial depict a familiar scene: While on her way to Holy Family school, Grand Blanc, on the morning of February 8, 1968, Polly Farney, a 9-year-old, was told by a stranger that her classes had been cancelled for the day. The stranger, identified by Polly at trial as defendant Cook, was seated in a car parked near the school. He offered to drive Polly home; he also offered her a candy bar. Polly entered the car; she was not taken home, however. At one point, Polly opened the car door and ran from the defendant. She was caught by the arm, taken back to the car, and instructed by defendant to keep her eyes shut. According to Polly's testimony at trial, defendant Cook unzipped his clothes and began pulling on Polly's leotard. Polly testified that the stranger eventually returned to the school and released her.

After Polly's return to school, the state police were called. Trooper Robert Kelly interviewed Polly and she described the man who had picked her up. Polly also described the car driven by the stranger. It was a white vehicle with a black interior and bucket seats. The car was smaller than a full-sized car--a compact model.

Unknown to defendant, a passing motorist, one James Britz, had observed defendant's 'unusual' presence at the school on the morning of February 8th. Mr. Britz had taken his children to Holy Family school on the morning of the offense. He thought it strange to see a car parked near the school with an unfamiliar male occupant. Britz observed the car's color and make; he also jotted down the car's license number, KF 1863. Later that day, Britz discovered from his children that a stranger had picked up a little girl in his car and had taken her from school. He immediately called the police and informed them of the license number of the car seen earlier. A police registration check revealed that the car was registered in the name of Paul Cook.

On February 10, 1968, state police troopers Kelly and James Collins went to defendant's home to arrest him. Upon arrival, they observed a white compact car bearing license number KF 1863 located in the garage adjacent to defendant's house. The car was seen through an open garage door.

The troopers learned from Mrs. Cook that her husband was not at home. Trooper Collins informed Mrs. Cook that the state police were investigating a kidnapping and that her husband was a suspect. Mrs. Cook was told that the car would be taken as evidence. A police wrecker was called and the car was towed to a state police garage where it was secured and marked, 'protect for prints.'

Defendant Cook was located at his place of business on the afternoon of February 10, 1968. He voluntarily accompanied state troopers to the Flint police station where both Polly Farney and James Britz identified defendant Cook in a lineup. Cook was then arrested.

Cook's automobile remained secured in the state police garage until February 12, 1968. On that date, 2 days after defendant's arrest, fingerprint experts from the state crime laboratory unlocked the car and dusted its interior for latent prints. Fingerprints were found inside the car which matched those of Polly Farney.

Defendant filed a pretrial motion to suppress people's exhibit 7, an enlargement of a print found on the right front inside door handle of defendant's car, on the ground that such evidence was the product of an unlawful search and seizure. Defendant relied principally on Preston v. United States (1964), 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. The trial court denied defendant's motion following an evidentiary hearing. At trial, an expert witness testified for the people that exhibit 7 matched prints made by the right little finger of Polly Farney.

I

Defendant contends that admission of people's exhibit 7 as evidence against him was constitutional error. He alleges that the warrantless search of his car for latent fingerprints violated his rights under the Fourth Amendment, as applied to the States through the Fourteenth Amendment, of the United States Constitution. See Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933. Defendant reiterates reliance on Preston v. United States, Supra.

The people contend that under Cooper v. California (1967), 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, the taking of defendant's car and the subsequent search of the car for latent fingerprints was valid without a warrant.

The basic question we must answer is whether the actions of the police were reasonable under all the circumstances. As noted in People v. McDonald (1968), 13 Mich.App. 226, 232, 163 N.W.2d 796, 799:

'Where a warrant has not been obtained, the validity of the search depends on the law's appraisal of the reasonableness of the search, only unreasonable warrantless searches and seizures being barred.'

And see, People v. Gonzales (1959), 356 Mich. 247, 253, 97 N.W.2d 16; People v. Zeigler (1960), 358 Mich. 355, 375, 100 N.W.2d 456; People v. Herrera (1969), 19 Mich.App. 216, 229, 172 N.W.2d 529. For reasons which follow, we hold that the warrantless conduct of the police in taking defendant's car and subsequently dusting it for fingerprints was reasonable in constitutional terms.

The facts presented at the evidentiary hearing on defendant's motion to suppress support the trial court's finding that the police had probable cause to arrest defendant Cook for the kidnapping of Polly Farney. This finding is not contested by defendant on appeal. Having probable cause to arrest defendant, the police were entitled to go to defendant's residence to arrest him; they were lawfully on defendant's premises. M.C.L.A. § 764.15(d) (Stat.Ann.1954 Rev. § 28.874(d)). People v. Eddington (1970), 23 Mich.App. 210, 178 N.W.2d 686. Once lawfully on the premises, Troopers Kelly and Collins were not required to disregard objects falling in plain view, including defendant's car.

'It has long been settled that objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.' Harris v. United States (1968), 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069.

Accord, People v. Orlando (1943), 305 Mich. 686, 9 N.W.2d 893; People v. Kuntze (1963), 371 Mich. 419, 124 N.W.2d 269; People v. Tetts (1967), 6 Mich.App. 254, 148 N.W.2d 877; People v. Hopper (1970), 21 Mich.App. 276, 175 N.W.2d 889; People v. McDonald, Supra.

It is undisputed that defendant's car was in plain view; it was parked in an open garage. Moreover, the car observed in defendant's garage matched descriptions of the vehicle used by the kidnapper given by both Polly Farney and James Britz. Under these circumstances, the state police had reasonable cause to believe that the car had been used to effectuate the crime. The car itself was evidence of defendant's guilt. It was an instrumentality of the crime. Since the police had good reason to believe that the car seen parked in defendant's open garage was used as an instrumentality of the kidnapping, they were justified in preserving the car itself as evidence of defendant's guilt. Being in plain sight, no search was required for its discovery. Harris v. United States, Supra. And, once seen, the car was subject to warrantless seizure. Cooper v. California, Supra; State v. McCoy (1968), 249 Or. 160 437 P.2d 734; People v. Nugara (1968), 39 Ill.2d 482, 236 N.W.2d 693, cert. den. 393 U.S. 925, 89 S.Ct. 257, 21 L.Ed.2d 261; State v. McKnight (1968), 52 N.J. 35, 243 A.2d 240; State v. Russell (1969), 282 Minn. 223, 164 N.W.2d 65; People v. Teale (1969), 70 Cal.2d 497, 75 Cal.Rptr. 172, 450 P.2d 564; State v. Carter (1969), 54 N.J. 436, 255 A.2d 746; State v. Thompson (1970), Minn., 173 N.W.2d 459.

We agree with the trial court's determination that Preston v. United States, Supra, is distinguishable. In Preston, defendant had been arrested on a charge of vagrancy. The warrantless search of his automobile while he was in custody produced evidence used to convict defendant of conspiring to rob a federally insured bank. It was held that the evidence was inadmissible because the warrantless search was too remote in time or place to have been incidental to the arrest and therefore made in violation of the test of reasonableness under the Fourth Amendment.

The later decision of the United States Supreme Court in Cooper v. California, Supra, however, makes it clear that not every warrantless search of an automobile made after a defendant's arrest is unlawful. In Cooper, it was held that the search of an automobile is reasonable within the meaning of the Fourth Amendment if it is closely related to the reason the accused is arrested and the reason the car is impounded and being retained. Mr. Justice Black noted, 386 U.S. at 61, 87 S.Ct. at 790--791, 17 L.Ed.2d at 733:

'While it is true, as the lower court said, that 'lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it.' ibid., The reason for and nature of the custody may constitutionally justify the search. Preston was arrested for...