People v. Dunlap

• Decision Date: 08 February 1978
• Docket Number: Docket No. 29571
• Citation: 82 Mich.App. 171,266 N.W.2d 637
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Wayne DUNLAP, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 637

266 N.W.2d 637

82 Mich.App. 171

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Wayne DUNLAP, Defendant-Appellant.

Docket No. 29571.

Court of Appeals of Michigan.

Feb. 8, 1978.

Released for Publication June 14, 1978.

Charles E. Miller, Ann Arbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., Lynwood E. Noah, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and WALSH and HEADING, ^* JJ.

PER CURIAM.

Defendant Robert Wayne Dunlap was convicted by a jury of armed robbery, contrary to M.C.L.A. § 750.529; M.S.A. § 28.797, and assault with intent to do great bodily harm less than murder, contrary to M.C.L.A. § 750.84; M.S.A. § 28.279. Defendant first assigns as error the trial court's denial of a defense motion to suppress evidence and statements.

This Court will not overturn a trial court's ruling at a suppression hearing unless that ruling is found to be clearly erroneous. People v. Triplett, 68 Mich.App. 531, 535, 243 N.W.2d 665 (1976); lv. den., 397 Mich. 842 (1976); People v. Bunker, 22 Mich.App. 396, 404, 177 N.W.2d 644 (1970); People v. Smith, 19 Mich.App. 359, 367, 172 N.W.2d 902 (1969); People v. Stewart, 25 Mich.App. 204, 206, 181 N.W.2d 14 (1970); People v. Terrell, 77 Mich. App. 676, 679, 259 N.W.2d 187 (1977). The suppression hearing in the instant case was addressed both to certain physical evidence which was seized from an automobile in which the defendant was riding, and certain statements made by the defendant and his companion, the driver of the automobile.

To justify a warrantless automobile search, there must be probable cause to believe that a felony has been or is being committed. People v. Iverson, 34 Mich.App. 519, 191 N.W.2d 745 (1971); People v. Strong, 77 Mich.App. 281, 284, 258 N.W.2d 205 (1977). In passing upon the reasonableness of the search, only those facts known to the officers at the time of the search may be considered; events subsequent to the seizure may not. People v. White,46 Mich.App. 195, 198, 207 N.W.2d 921 (1973).

In the instant case, the police officers involved made a routine stop of the vehicle in which the defendant was riding for a traffic violation. They discovered the defendant, a passenger in the back seat, with a severe gunshot wound to the leg. They arranged to have an ambulance meet them, and upon arriving at the rendezvous point proceeded to ask the pair what had happened. The driver first indicated that the defendant had a gun in the back seat. One officer asked the defendant what had happened and he stated that he shot himself accidentally. The officer then inquired where the gun was and the defendant told him. The officer seized the gun as well as a bag of money and checks and a knife from the glove compartment.

The circumstances justified the police officers' belief that "criminal activity was afoot", and they had probable cause, therefore, to conduct the search. People v. LaGrange, 40 Mich.App. 342, 198 N.W.2d 736 (1972); People v. Lillis, 64 Mich.App. 64, 235 N.W.2d 65 (1975); People v. Parisi, 393 Mich. 31, 222 N.W.2d 757 (1974); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Any statements made on the scene at that particular moment were not taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Rather, the circumstances represented "a situation of an officer reacting naturally and spontaneously to the scene before him. It was a routine means of commencing an investigation and not an inquiry made pursuant to an already-launched investigation. The defendant had not as yet been placed under arrest; neither was he in foreign surroundings nor in a 'police-dominated atmosphere' as stressed in Miranda." People v. Jackson, 37 Mich.App. 664, 669, 195 N.W.2d 312, 314 (1972). General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by the holding of Miranda. Miranda v. Arizona, supra, 384 U.S. at 477-478, 86 S.Ct. 1602. Therefore, both the statements taken at that time and the search and seizure of contraband was proper.

Further, the statement made by defendant while in an ambulance on the way to Ann Arbor, though the defendant was likely in custody at that time, was a volunteered statement and therefore not taken in violation of Miranda.

A more difficult situation is presented by defendant's confession made to police officers in his hospital room some days after being arrested. Defendant had been at Ann Arbor Hospital for several days with 24-hour police guard at his door. His wound was quite serious and he was receiving shots of morphine and phenergan for several days. Late one night, after the defendant had been receiving these shots for approximately 4 days, an officer came in to speak with the defendant at defendant's request. He proceeded to take a full confession from the defendant and also had the defendant sign a waiver card. The police officer who took the statement testified that defendant told him he wanted to confess so that his brother-in-law, the driver of the car, could get out of jail. The defendant asserts that the amount of medication he was receiving as well as the pain and suffering of the wound preclude the possibility that he exercised a knowing and intelligent waiver of his rights. The police officer testified on the contrary that ...