People v. Eastway

• Decision Date: 26 February 1976
• Docket Number: Docket No. 21916
• Citation: 67 Mich.App. 464,241 N.W.2d 249
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald R. EASTWAY, Defendant-Appellant. 67 Mich.App. 464, 241 N.W.2d 249
• Court: Court of Appeal of Michigan — District of US

Page 249

241 N.W.2d 249

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald R. EASTWAY, Defendant-Appellant.

Docket No. 21916.

67 Mich.App. 464, 241 N.W.2d 249

Court of Appeals of Michigan.

Feb. 26, 1976.

Released for Publication May 5, 1976.

[67 MICHAPP 465] David A. Dodge, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston III, Chief App. Atty., Grand Rapids, for plaintiff-appellee.

Before T. M. BURNS, P.J., and V. J. BRENNAN and CAVANAGH, JJ.

T. M. BURNS, Presiding Judge.

Defendant was convicted of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. He was sentenced to 5 to 15 years in prison and appeals as of right.

On May 12, 1974, an armed robbery occurred at a restaurant in Grand Rapids. One robber was wearing a ski mask and carried a chrome-plated handgun, another robber wore an army-type baseball cap and carried a black handgun. Approximately, $2,200 was stolen.

[67 MICHAPP 466] On May 15, 1974, two security guards at a shopping mall in Kent County, while patrolling the mall parking lot, saw Marla Reider sitting in a car with defendant smoking a marijuana cigarette. The guards approached the automobile and confronted the occupants with what they had seen. One of the security guards asked if there was any more marijuana, and defendant showed him two bags full of the substance. Defendant was then frisked and the Kent County Sheriff's Department was summoned by radio.

While waiting for the police, one of the security guards suggested that the police would search the automobile and asked defendant if there was any contraband inside. Defendant suggested that the guard look in the glove compartment. Miss Reider gave the keys to the guard and he unlocked the compartment, discovering a .22 caliber chrome-plated revolver and three bundles of money. The guard seized the gun, frisked defendant again, and handcuffed him. Upon arrival of the police, defendant was arrested for possession of marijuana.

A subsequent search of defendant's apartment produced a ski maski, army-type cap, and money wrappers like those used by the restaurant which was robbed. Defendant was then charged with armed robbery.

Prior to trial, defendant made a motion to suppress the evidence found in the glove compartment of Miss Reider's automobile, claiming such evidence to be the fruit of an unreasonable search and seizure. The trial court denied the motion.

On appeal, defendant makes several allegations of error, none of which mandates reversal.

Whether the evidence seized by the private security guards should have been suppressed?

Defendant argues that the gun and money found [67 MICHAPP 467] in Miss Reider's automobile was discovered in an unreasonable search contrary to the United States and Michigan Constitutions, and hence, should have been suppressed as evidence under the exclusionary rule. The prosecutor contends that the exclusionary rule does not apply to unreasonable searches and seizures conducted by private individuals.

The search and seizure in this case was conducted by private security guards licensed by the state. By statute, any such licensed private security officer in Michigan has the authority to arrest without a warrant in the same manner as a public police officer. M.C.L.A. § 338.1080; M.S.A. § 18.185(30). We are inclined to agree with defendant that his constitutional rights of due process and freedom from unreasonable searches and seizures should be no less when arrested or searched by a private security guard with police powers than when he is arrested or searched by a public police officer. The degree to which private security guards today supplement public police protection and the fact that they are permitted to carry deadly weapons and exercise broad powers of arrest, supports the argument that their conduct should be subject to the same limitations as public officers. There is ample authority for the proposition that the exclusionary rule does and should apply to evidence discovered as the result of an unreasonable search and seizure conducted by private security guards. ¹ We need not reach that question, however, as the search and seizure complained of in this case was not unreasonable.

A warrantless search and seizure is unreasonable[67 MICHAPP 468] per se unless shown to be within one of the exceptions to the rule. People v. Reed, 393 Mich. 342, 362, 224 N.W.2d 867 (1975). One such exception, of course, is when the party consents to the search. Our reading of the record persuades us that not only did defendant and Miss Reider consent to the search of the automobile, but defendant virtually volunteered very incriminating information with little or no prompting and clearly without coercion or duress. Defendant cannot complain of a search which he invited. The motion to suppress was properly denied.

Was defendant denied a fair trial because evidence was presented that defendant remained silent in the face of questioning after his...