People v. Dogans
| Decision Date | 28 September 1970 |
| Docket Number | No. 1,Docket No. 1287,1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest DOGANS, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James A. Sullivan, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Leonard Meyers, Asst. Pros. Atty., for plaintiff-appellee.
Before V. J. BRENNAN, P.J., and LEVIN and BORRADAILE, * JJ.
The defendant, Ernest Dogans, appeals his conviction of possession of 43.25 grains of heroin. 1 A tinfoil packet of heroin was found in his pocket during a search following his arrest in connection with an investigation of the theft of a stereo phonograph. 2 No formal motion to suppress the seized narcotics was filed, 3 but the issue was considered both during the preliminary examination and the trial. 4
In People v. DeGraffenreid (1969), 19 Mich.App. 702, 173 N.W.2d 317, we recently discussed the responsibility of an appellate court to consider a search and seizure issue not properly preserved at the trial level. We held that although the Fourth Amendment right to have illegally-seized evidence suppressed is a constitutional right, it may be waived by the failure of a defendant's lawyer to preserve and assert it. We added however, that if the defendant's conviction could properly be attributed to the failure to assert that right we may, and in some cases are obliged to, consider the issue so that an accused person is not convicted as a result of serious lawyer error (p. 716, 173 N.W.2d p. 324):
'Where the lawyer's mistake is of such serious proportion that it may have been decisive, where but for the lawyer's mistake the defendant might not have been convicted, the court may, despite failure to have preserved the error by timely objection, grant a new trial.'
We affirmed DeGraffenreid's conviction because after considering the other evidence against him we concluded that even if the seized evidence were suppressed he would assuredly be convicted upon a new trial. Since his conviction was not attributable to his lawyer's mistake and the issue was not properly preserved for appeal, we saw no need to order a new trial.
In this case we cannot so readily dispose of the search and seizure issue. 5 The only evidence offered at the trial to support the charge that Dogans possessed 43.25 grains of heroin was the testimony concerning the packet of heroin found on his person when he was arrested. It is, therefore, perfectly clear that the seized evidence contributed to his conviction. In such a case we are obliged to consider the issue even if not properly preserved at the trial level. 6
Although no formal motion seeking the suppression of the seized heroin was filed, as previously indicated both at the preliminary examination and at the trial witnesses testified concerning the circumstances preceding and at the time of Dogans' arrest.
Harry Bolling testified that when he returned home from work his wife informed him that at about 6:00 p.m. she had discovered that their 8-foot stereo phonograph was missing. He concluded that Patrick Pattilo, his brother-in-law and Bedford Dillard and Nathaniel McLaughlin had taken it and called the police. When the police arrived at 10:00 p.m. Bolling told them of his conclusions and that he thought they had removed the stolen stereo to a two-story apartment building at 5171 Iroquois, Detroit, Michigan, 'to get junked.' The police left immediately for that address with Bolling in their cruiser.
When they arrived, Bolling pointed out his brother-in-law who was a short distance from the apartment building. Nathan Beasley was then leaving the building. The police arrested Beasley. The record does not show why Beasley, who was not one of the culprits named by Bolling, was arrested.
One of the officers testified that the defendant Dogans was at a doorway of the building and had observed the arrival of the police and the arrest of Beasley, and that Dogans then closed the door and ran up the stairs. The officer said he kicked in the door and pursued Dogans to the top of the stairs where Dogans was arrested for breaking and entering a dwelling. He also said that before arresting Dogans he asked him whether he lived in the building and Dogans replied that he did not, and that he observed Dogans throw something away. When asked what it was that Dogans threw away, the officer responded that it was a nail clipper. 7
After Dogans was arrested the police conducted a general search of the building, found more narcotics, 8 and arrested all the occupants, some nine persons. The stereo was not found.
At the conclusion of the preliminary examination the magistrate ruled that the arrest was valid largely because of the testimony regarding the defendant's flight up the stairs when he saw the officers. He also ruled that the search and seizure of the heroin were valid as an incident of the arrest and the heroin was, therefore, admissible in evidence.
Dogans did not testify at the examination, but he did testify at the trial. He said that he was not downstairs at a door, did not observe the arrival of the police, and that they broke down the door of the apartment of a lady friend whom he was visiting and arrested him. He also denied that he had any narcotics in his possession.
The case was tried before a judge sitting without a jury. It does not appear from the record to what extent the trial was directed to the search and seizure issue. 9 The judge was, however, aware, of made aware of the record of the importance of the question. After the conclusion of the trial and after hearing argument of counsel he declared that the defendant did not have standing to complain of the search and seizure of his person because it occurred on premises which he did not own. That is manifestly an erroneous statement of the law. Whether the defendant had standing to complain of a search of his friend's apartment or of other apartments in the building, he most assuredly had the right to have suppressed any heroin taken from his person without probable cause. 10
The judge did not resolve the factual dispute of whether the defendant was arrested at the top of the stairs after first having fled from the police or in his friend's apartment. And, even if it were to be decided that he did flee and he was arrested in the hallway, there would still remain a substantial question as to whether there was probable cause to arrest him.
There is probable cause to arrest without a warrant if the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy knowledge warrant a prudent man in believing that the accused person has committed or was committing an offense. 11 The reliability and particularity requirements applicable where a search warrant is sought 12 also govern the issuance of arrest warrants. 13 And since an arrest without a warrant bypasses an objective predetermination of probable cause by an independent magistrate, 'the requirements of reliability and particularity of the information on which an officer may act' are at least as stringent where a defendant is arrested without a warrant as where an arrest warrant is obtained. 14
We have recently reviewed these requirements in People v. Zoder (1968), 15 Mich.App. 118, 121, 166 N.W.2d 289. We observed that in Aguilar v. Texas (1964), 378 U.S. 108, 113, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723, the United States Supreme Court held deficient an affidavit upon which a search warrant had issued because it stated a (p. 113, 84 S.Ct. 1509) 'mere conclusion' and did not inform the magistrate (p. 114, 84 S.Ct. p. 1514) 'of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed (citation omitted) was 'credible' or his information 'reliable." Aguilar's requirement that the 'underlying circumstances' be adequately stated was recently reaffirmed in Spinelli v. United States (1968), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. These requirements have been consistently applied by the United States Supreme Court in warrantless arrest cases. 15
That Court has also held that the people have the burden of establishing that a warrantless arrest is supported by probable cause. 16 In this case the record shows no more than that Bolling told the officers that his brother-in-law and two other men had stolen his stereo and removed it to the apartment building where the defendant was later arrested. There is nothing that would support a finding that Bolling related any of the underlying circumstances that led him to that conclusion or what they were. When asked at the trial why he thought his brother-in-law stole the stereo, he said that After the police left he discovered a wood chisel belonging to his wife's grandfather and that this incriminated his brother-in-law. Since this discovery occurred after the defendant's arrest and, therefore, could not have been related to the police before the arrest, they could not have acted on that information. 17
When making an authorized felony arrest a police oficer may, indeed, break open an inner or outer door of any building in which the person to be arrested is or is reasonably believed to be if, after he has announced his purpose, he is refused admittance. 18 But, for reasons already stated, it has not yet been shown that the police had probable cause to arrest anyone, including the brother-in-law and the two other men, let alone the defendant Dogans.
Pertinent is the recent decision of the United States Supreme Court in Recznik v. City of Lorain (1968), 393 U.S. 166, 89 S.Ct. 342, 21 L.Ed.2d 317. The police had been informed that a...
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