People v. Dorner, Docket No. 23156

• Decision Date: 10 December 1975
• Docket Number: Docket No. 23156
• Citation: 66 Mich.App. 298,238 N.W.2d 845
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Alden DORNER, Defendant-Appellee. 66 Mich.App. 298, 238 N.W.2d 845
• Court: Court of Appeal of Michigan — District of US

Page 845

238 N.W.2d 845

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Alden DORNER, Defendant-Appellee.

Docket No. 23156.

66 Mich.App. 298, 238 N.W.2d 845

Court of Appeals of Michigan.

Dec. 10, 1975.

Released for Publication March 2, 1976.

[66 MICHAPP 300] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Elmer L. Radka, Pros. Atty., for plaintiff-appellant.

Hile & Livo, by Robert C. Livo, Cheboygan, for defendant-appellee.

Before DANHOF, P.J., and McGREGOR and KAUFMAN, JJ.

McGREGOR, Judge.

The defendant was charged with breaking and entering a building with the intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. The defendant's arrest arose when the automobile that he was driving was stopped by Trooper Rupert L. Boynton of the Michigan State Police. At the time of the stop, Trooper Boynton observed some evidence in the defendant's car and certain statements were made to Trooper Boynton by the defendant. Defendant filed both a motion to suppress[66 MICHAPP 301] the evidence and a motion for a Walker ¹ hearing to suppress the statements. Both motions were granted by the trial court in an opinion dated October 2, 1974. The people sought and were granted leave to appeal from these adverse rulings. ²

Before reaching the issues raised, it is necessary to set forth facts surrounding defendant's arrest. On March 9, 1973, at approximately 3:30 in the afternoon, Trooper Boynton was on duty and proceeding east on M--32. At this time, he observed the defendant's vehicle proceeding west on M--32 and, as he passed the defendant's vehicle, Trooper Boynton noticed that the vehicle did not have an outside rear view mirror, contrary to M.C.L.A. § 257.708; M.S.A. § 9.2408. Trooper Boynton then turned his police vehicle around in order to stop the defendant's vehicle for the violation and to make a vehicle safety check. As he was turning, Trooper Boynton noticed that the defendant had pulled his vehicle off to the right side of the road, but that in making the turn, the defendant failed to use his turn signal indicator, contrary to M.C.L.A. § 257.648; M.S.A. § 9.2348.

Trooper Boynton proceeded to the point where the defendant's vehicle was stopped, pulled up behind the vehicle and exited his car. At the same time, defendant exited from his car and met Trooper Boynton midway between the two vehicles. Trooper Boynton asked the defendant for identification, which was produced. Trooper Boynton then informed the defendant that the reason he was being stopped was because his vehicle did [66 MICHAPP 302] not have an outside rear view mirror and that he (Trooper Boynton) wished to check the turn signal indicators on the defendant's vehicle. Trooper Boynton testified that as he and the defendant were approaching the defendant's vehicle, he observed a large cardboard box containing a number of cigarettes, wrenches with price markings, watches, and other various goods on the rear seat.

Trooper Boynton then entered the defendant's vehicle, checked the turn signal indicators, and also tried the brakes. Trooper Boynton testified that it was his normal procedure to enter a vehicle when he checked the turn signal indicators since, once inside, he could then check the brakes. He further testified that as he was entering the car, he noticed othe goods on the floor of the back compartment, as well as a long dagger-type knife protruding out from beneath the front seat. There was no testimony presented to indicate whether the trooper requested permission to enter the defendant's vehicle, or if the trooper used his authority to gain access to the vehicle. After exiting the defendant's vehicle, Trooper Boynton asked the defendant where he had acquired the property that was on the rear seat. The defendant responded that he had bought the goods at a junior college in Traverse City and further stated that the goods were 'selling like hotcakes'. Following this reply, it is not clear whether Trooper Boynton then asked the defendant what was meant by that statement or whether Trooper Boynton asked the defendant whether he thought the goods were stolen. Whatever the case, the defendant responded. 'Well, I think they're stolen, that's why I'm taking them back'.

After the defendant finished making the above statement, Trooper Boynton advised him that he [66 MICHAPP 303] and the occupant of the car were under arrest. The officer then removed the property from the back seat of the defendant's vehicle and placed it in his car. At this point, the defendant was advised of his constitutional rights by Trooper Boynton and instructed to say nothing further.

The first inquiry that must be made is whether Trooper Boynton was in a place where he had a right to be when he first observed the goods in question. People v. Whalen, 390 Mich 672, 213 N.W.2d 116 (1973). If Trooper Boynton was not, then the trial court ruled correctly, since the subsequent statements of the defendant and the subsequent seizure of the goods would have been tainted by the primary illegality of the officer's unauthorized view. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and People v. Walker, 27 Mich.App. 609, 183 N.W.2d 871 (1970). If, on the other hand, Trooper Boynton was rightfully positioned, then he had a right to observe whatever fell within his view and to utilize whatever information he so obtained. Whalen, supra, People v. Goodman, 58 Mich.App. 220, 227 N.W.2d 261 (1975).

In the present case, it is not disputed that Trooper Boynton clearly had a right to be near the defendant's automobile, having lawfully stopped the defendant for a traffic violation. What is disputed, however, is whether Trooper Boynton first observed the goods in question from within or without the defendant's vehicle. While the trial court's opinion is ambiguous on this point, our own independent examination of the record convinces us that Trooper Boynton did originally view the goods resting on the back seat from without the car. The only evidence presented on this issue was the uncontradicted testimony of Trooper [66 MICHAPP 304] Boynton that he observed the goods as he walked by the defendant's vehicle prior to entering it. If the trial court did conclude otherwise, its conclusion would not have been supported by the record and, therefore, would have been clearly erroneous.

Furthermore, it is not unreasonable for a police officer to view the interior of an automobile which has been lawfully stopped for a traffic violation, regardless of whether or not the officer ever intended to enter the vehicle. Such an observation in the present case would have undoubtedly disclosed both the presence and the contents of the large box on defendant's rear seat. Thus, since Trooper Boynton had a right to be near the defendant's vehicle and also had a right to observe the vehicle's interior, his observation of the large box and its contents was proper under the present circumstances. This being the case, we need not consider whether the goods would have been properly viewed by Officer Boynton, had they not been observed until after he entered the defendant's vehicle. We will assume, however, that such a view would have been illegal and that, consequently, Officer Boynton's view of the remaining articles on the floor and his view of the knife protruding from under the front seat were improper. See People v. Lee, 371 Mich. 563, 124 N.W.2d 736 (1963); Cf. People v. Smith, 39 Mich.App. 337, 197 N.W.2d 528 (1972). Thus whatever additional information was gained in this manner could not have been properly used by Trooper Boynton.

We are also of the opinion that the view of the large box and its contents did not, without more, provide Trooper Boynton with probable cause either to arrest the defendant or to seize the goods. We reach this conclusion under both the 'contraband' test of People v. White, 46 Mich.App. 195, [66 MICHAPP 305] 207 N.W.2d 921 (1973), and the 'mere evidence' test of People v. Goodman, supra. In either case, the mere observation of the goods in question did not furnish Trooper Boynton with either sufficient cause to believe that the defendant had committed a crime, or sufficient cause to believe that the goods in question were the fruits of a crime.

Having so decided, we must make a second inquiry. Had a criminal investigation so focused on the defendant that, under the totality of the circumstances, Trooper Boynton should have given a Miranda ³ warning to the defendant before asking either the first or second question? People v. Reed, 393 Mich. 342, 224 N.W.2d 867 (1975). If the defendant was entitled to a Miranda warning before either question, then the trial court would have also ruled correctly since the statements would have been improperly obtained and the subsequent seizure of the goods would have been illegally tainted thereby. This result would follow since the statements could not have been properly used to overcome the absence of probable cause, either for defendant's arrest or the seizure of the goods. If, however, Trooper Boynton was not required to give warnings, then the trial court's suppression of the defendant's statements would have been error. Additionally, the statements then could also have been used to aid in the establishment of probable cause.

Under the totality of the circumstances, we find that a criminal investigation had not so focused on the defendant, either before the first or second question, as to require the giving of a Miranda warning.

As stated previously, at the time of the asking of [66 MICHAPP 306] the first question, Trooper Boynton did not have probable cause either to arrest the defendant or to seize the goods. In fact, Trooper Boynton had no knowledge that the goods were stolen, nor did he have any knowledge of the alleged breaking and entering from which the goods were allegedly taken. At most, he had only a suspicion that the goods had been stolen somewhere. In People v....