People v. Ferguson
| Decision Date | 07 June 1965 |
| Docket Number | No. 51,51 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Donald FERGUSON, Defendant and Appellant. |
| Court | Michigan Supreme Court |
Robert F. Leonard, Pros. Atty., Richard J. Ruhala, Asst. Pros. Atty., Flint, for plaintiff and appellee.
Charles Campbell, Detroit, Mich., for respondent and appellant.
Before the Entire Bench.
Defendant, on January 26, 1956, was jury-convicted of robbery armed. 1 By leave granted, defendant is here on appeal from an order denying his motion for leave to file a delayed motion for new trial and other relief.
Defendant argues 2 points: first, that the fruit of an illegal search and seizure (automatic pistol) was erroneously admitted into evidence although no motion to suppress was made before trial; and, second, that the testimony of an accomplice who confessed during a period of alleged illegal detention should have been excluded at defendant's trial. The brief amicus, in general support of defendant's first contention, phrases the question in this manner: 'Was it proper for the trial court, on the ground that a motion to suppress had not been filed prior to the trial, to allow the introduction of a gun into evidence over defense counsel's objection that it had been illegally seized, where defendant had been unrepresented by counsel at the examination in which the gun was not offered in evidence?' By way of reply, the prosecuting attorney rejects the arguments of defendant and of the amicus curiae, adding that the search and seizure was not illegal.
The first question is whether the court in defendant's 1956 trial should have granted defendant's motion to suppress, under the circumstances. Two men, one armed with a pistol, robbed a saloon employee of money sometime after midnight on the morning of September 26, 1955, in the city of Flint. Two suspects, one of whom was defendant, were arrested in the apartment of a third person about 8:00 a. m. that same morning.
An officer testified that he was admitted to the apartment by the third party who was a tenant from whom permission to search was obtained, there being no warrnat. A .38 caliber Colt automatic pistol was found in the apartment during the search. Witnesses testified that defendant wielded the pistol during the robbery. The pistol was not introduced at the preliminary examination in municipal court, although defendant was identified as the gun-wielding robber. Defendant was not represented by counsel at the examination. After the binding over to circuit court, the prosecuting attorney filed an information describing the weapon as 'a 38 Caliber Colt Automatic Pistol, Serial No. 36144.' Defense counsel was appointed in circuit court on December 15, 1955, and the case was tried January 26, 1956. At trial, defense counsel made the following motion when the prosecutor offered the pistol into evidence:
The trial judge treated it as a motion to suppress on account of an alleged illegal search and seizure. He denied the motion, ruling that defendant's failure to move in advance of trial served as a waiver. As to the illegal search and seizure question, we limit review to the question of whether, under the circumstances, the trial court should have entertained defendant's motion to suppress first made during trial of the case.
It is said in People v. Heibel, 305 Mich. 710, 712, 9 N.W.2d 826:
'The rule is well established that the illegality of seizure of evidence, where such illegality is known before the trial, must first be raised by a motion to suppress the evidence, timely made.
The legality or illegality of the search and seizure is a collateral matter and the court will not turn aside from the trial of the case to consider such a collateral matter.'
It has been held, however, in People v. Bass, 235 Mich. 588, 593, 209 N.S. 927, that under a court rule the trial court had discretion to permit a defendant to move to suppress during trial, but in that case the trial court's refusal was held not an abuse of discretion where defendant knew of the search the day after officers searched his home and seized certain evidence. This Court said: 'Knowing that the officers had made the search and had the evidence secured thereby in their possession, it was the duty of defendant to so inform his attorney.'
Although the discretionary feature of the rule came into being on application of a court rule, it is consonant with the general application of the law and is expressly adopted as such. In restatement, the ruel is as quoted above from People v. Heibel, supra, to which may be added: 'except under special circumstances the trial court may, within its sound discretion, entertain at trial a motion to suppress.' We dare not attempt to define 'special circumstances' for by inclusion in the definition we may be construed as excluding other valid circumstances. However, we cite this situation as an example: where facts constituting the illegality are not known before trial, it is consonant with the general rule for the trial judge to exercise his discretion and turn aside from the trial of the case and consider such a motion. This does not mean that defendant must have had an awareness of the law, but that he had knowledge of factual circumstances constituting the illegal seizure. See Isaacs v. United States (CCA 10, 1960), 283 F.2d 587, for application of similar principle under Rule 41(e) of the Federal rules of criminal procedure. 2 In such a situation, if the factual circumstances are known to defendant in advance of trial, he is responsible for communicating them to his lawyer immediately and his lawyer, in tuen, is responsible for making a proper motion in advance of trial. People v. Bass, supra. If, however, factual circumstances are not known sufficiently in advance of trial to permit such a motion then the trial court may exercise its discretion and consider the motion at trial.
In the instant case, we do not find that ...
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