People v. Eichenberg
| Decision Date | 18 June 1981 |
| Docket Number | Docket No. 46294 |
| Citation | 310 N.W.2d 800,108 Mich.App. 578 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Richard EICHENBERG, Defendant-Appellant. 108 Mich.App. 578, 310 N.W.2d 800 |
| Court | Court of Appeal of Michigan — District of US |
[108 MICHAPP 579] Janice M. Joyce, Detroit, for plaintiff-appellee.
Philip J. Doherty, Royal Oak, for defendant-appellant.
Before HOLBROOK, P. J., and BRONSON and WALSH, JJ.
Defendant and two codefendants were jointly tried on three charges: possession of dangerous explosive material with the intent to use it unlawfully against the person or property of another, M.C.L. § 750.211; M.S.A. § 28.408; carrying a weapon in an automobile, M.C.L. § 750.227; M.S.A. § 28.424; and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant was convicted on the second count, carrying a weapon in an automobile, and a mistrial was declared on the other two charges. Defendant subsequently pled guilty to possession [108 MICHAPP 580] of a bomb or bomb shell, M.C.L. § 750.224; M.S.A. § 28.421, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant's plea was conditioned on his right to raise the following two issues on appeal.
The first issue is whether the trial court erred in denying defendant's motion to dismiss because the evidence against the defendant was obtained unlawfully.
The record indicates the automobile was stopped because of a traffic violation. Two officers approached the vehicle, one on either side. Trooper Ackley knocked on the window of the passenger's side of the car and a codefendant opened the door. Ackley then asked both codefendant and defendant for some identification. Defendant contends that this request for identification amounted to an unlawful invasion of his right to secure against unreasonable searches and seizures in violation of his Fourth Amendment rights. We disagree.
The automobile in which the defendant was riding had already been properly stopped for a traffic violation. Officer Ackley had a right to walk up on the passenger's side of the vehicle and keep the passengers under observation while his partner talked to the driver. He also had a right, like any other citizen, to address questions to the defendant. See Terry v. Ohio, Mr. Justice White concurring, 392 U.S. 1, 35, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889 (1968). See also United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Further, he had the right to order the passengers out of the vehicle in order to protect himself and his partner from "unobserved movements" which may have been assaultive in nature. Pennyslvania v. Mimms, 434 U.S. 106, 110-111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977).
[108 MICHAPP 581] There was no search. Although the explosive device was partially concealed, at least part of it was in plain view on the floor of the vehicle. The officer was in a place where he had a right to be. The evidence was properly seized. People v. Whalen, 390 Mich. 672, 213 N.W.2d 116 (1973). The trial court did not err in refusing to grant defendant's motion to dismiss.
The second issue is whether it was error for the trial court to deny defendant's motion for directed verdict. An essential element of the charged offense was the intent to use the explosive material unlawfully against the person or property of another. M.C.L. § 750.211; M.S.A. § 28.408. Defendant argues that the prosecution presented no evidence of such intent and that his motion for directed verdict, therefore, should have been granted.
When ruling on a motion for a directed verdict, the trial court must consider the evidence presented by the prosecution up to the time the motion is made, view that evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979).
From our review of the record we conclude that there was sufficient evidence of unlawful intent. The smokeless powder was found in a device referred to by the firearms expert as a pipe bomb....
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...lv. den. 417 Mich. 910 (1983) (nolo contendere), People v. McIntosh, 110 Mich.App. 139, 312 N.W.2d 415 (1981), People v. Eichenberg, 108 Mich.App. 578, 310 N.W.2d 800 (1981), and People v. Ricky Smith, 85 Mich.App. 32, 270 N.W.2d 697 ...
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...Accordingly, the officers had the right to approach the vehicle, keep its passengers under observation, People v. Eichenberg, 108 Mich.App. 578, 580, 310 N.W.2d 800 (1981), and look inside the vehicle. People v. Julkowski, 124 Mich.App. 379, 384, 335 N.W.2d 47 (1983). That the discovery of ......
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...for backup.2 The majority says that this is a case of first impression. It should be noted, however, that in People v. Eichenberg, 108 Mich.App. 578, 580, 310 N.W.2d 800 (1981), a panel of this Court did purport to extend Mimms to passengers of vehicles stopped for traffic violations. Howev......
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