People v. Ferrigan, Docket No. 46334

• Decision Date: 23 January 1981
• Docket Number: Docket No. 46334
• Citation: 103 Mich.App. 214,302 N.W.2d 855
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Paul FERRIGAN, Defendant-Appellant. 103 Mich.App. 214, 302 N.W.2d 855
• Court: Court of Appeal of Michigan — District of US

Page 855

302 N.W.2d 855

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Paul FERRIGAN, Defendant-Appellant.

Docket No. 46334.

103 Mich.App. 214, 302 N.W.2d 855

Court of Appeals of Michigan.

Jan. 23, 1981.

Released for Publication March 23, 1981.

[103 MICHAPP 215] James R. Neuhard, State Appellate Defender, Richard B. Ginsberg, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas Kent, Pros. Atty., Leonard J. Malinowski, Mary C. Smith, Asst. Attys. Gen., for plaintiff-appellee.

Before DANHOF, C. J., and KELLY and SULLIVAN, ^* JJ.

PER CURIAM.

On December 4, 1978, defendant was convicted on his plea of guilty of larceny from a person, M.C.L. § 750.357; M.S.A. § 28.589. On April 9, [103 MICHAPP 216] 1979, he was sentenced to 31/2 to 10 years imprisonment. He appeals as of right.

The facts in this case are undisputed. The charge arose out of the robbery of a Best gas station in Grayling. Two days before the robbery, acting on a complaint, sheriff's deputies investigated a Ford pickup truck with a camper which was parked and running in a lot within 100 to 150 yards of the Best gas station. Defendant and two others were in the cab of the truck along with a disassembled shotgun.

Two days later, on December 28, 1977, the Best gas station was robbed at gunpoint. The attendant believed that a 12-gauge shotgun was used. There were two robbers wearing ski masks, one was 5'7 , the other 5'10 . One wore a blue coat, the other a red coat. The attendant could not identify defendant as being one of the robbers.

As the attendant phoned the police from another gas station down the street, he saw a snowmobile with one rider drive off from behind the A & P store next to the Best gas station.

A deputy attempted to block the flight of the snowmobile, but failed. He testified that it appeared to be a black Arctic Cat.

The officer proceeded to a subdivision in the direction the snowmobile fled and found a white Yamaha snowmobile parked in the subdivision, with its motor running. After pealing off tape which covered its registration number, he discovered that it had been stolen. The officer observed tire tracks in the snow within ten yards of the snowmobile which were of the same basic type left by defendant's pickup truck.

The sheriff attempted to follow the tracks, but they became impossible to follow. The sheriff drove to codefendant's father's house where he observed [103 MICHAPP 217] defendant's pickup truck parked on private property. Footprints in the snow indicated that two people had exited from the cab and entered the back of the truck. The sheriff found that the engine of the truck was still warm. He was satisfied that the fresh tire tracks matched those left near the abandoned snowmobile.

One officer went to get a search warrant while the others watched the camper. He returned with a warrant in three hours. They towed the truck to the police station, removed the rear door of the camper, and found defendant and codefendant apparently highly intoxicated. They also found a single barrel shotgun broken into three pieces, a paper bag containing coins, two pairs of snowmobile boots, a pair of hiking boots, a blue down filled jacket, and two ski masks. Currency totaling $483.92 was found inside one of the boots.

Defendant was taken to a hospital to determine his physical condition and then returned to the jail. He was given a breathalizer test. He was then advised of his Miranda ¹ rights and confessed.

The search warrant was later held void by Crawford County Circuit Court Judge William A. Porter. However, Judge Porter denied defendant's motions to suppress the seized evidence and defendant's confession because he found a warrantless search appropriate based on probable cause and exigent circumstances. He also found that defendant's confession was voluntary.

Defendant sought an interlocutory appeal from these decisions but withdrew the appeal and pled guilty to a reduced charge on December 4, 1978.

On this appeal, defendant argues that the trial court erred in failing to grant his motions to [103 MICHAPP 218] suppress the seized evidence and his confession. As a prerequisite to that issue, he claims that his plea of guilty does not constitute a waiver of the issue, citing People v. Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976).

We decline to follow the dicta in Alvin Johnson relied upon by defendant. This Court in People v. Hill, 86 Mich.App. 706, 273 N.W.2d 532 (1978), and People v. Riley, 88 Mich.App. 727, 279 N.W.2d 303 (1979) held that search and seizure is a claim which is waived by a plea of guilty because it is the sort of challenge which attacks the government's ability to prove its case. We conclude that the defendant fully waived his challenges to the search, his confession, and related objections at the district court level.

Defendant also argues that his plea was not an understanding one because his counsel advised him that he could litigate the search issue on appeal from his guilty plea and that his attorney's advice denied him effective assistance of counsel.

This Court ordered an evidentiary hearing on this issue on April 16, 1980. The hearing was held on May 1, 1980. At...