People v. Futrell

• Decision Date: 01 August 1983
• Docket Number: Docket No. 57823
• Citation: 125 Mich.App. 568,336 N.W.2d 834
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Keith Tyrone FUTRELL, Defendant-Appellee. 125 Mich.App. 568, 336 N.W.2d 834
• Court: Court of Appeal of Michigan — District of US

Page 834

336 N.W.2d 834

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Keith Tyrone FUTRELL, Defendant-Appellee.

Docket No. 57823.

125 Mich.App. 568, 336 N.W.2d 834

Court of Appeals of Michigan.

Submitted Oct. 18, 1982.

Decided May 5, 1983.

Released for Publication Aug. 1, 1983.

[125 MICHAPP 570] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Chief Appellate Asst. Pros. Atty., Appeals, and A. George Best, II, Asst. Pros. Atty., for the people.

[125 MICHAPP 571] Bell & Hudson, P.C. by Lester D. Hudson, Detroit, for defendant-appellee.

Before MAHER, P.J., and BRONSON and CYNAR, JJ.

BRONSON, Judge.

The people appeal as of right from an order quashing the information against defendant. The decision to quash was based on an order granting defendant's motion to preclude the people from introducing into evidence a handgun found in defendant's car. Defendant had been charged with carrying a concealed weapon, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424.

On appeal, plaintiff claims the trial judge erred by relying exclusively on the preliminary examination transcript in deciding defendant's motion to suppress. This practice was explicitly prohibited by the Supreme Court in People v. Talley, 410 Mich. 378, 390, fn. 3, 301 N.W.2d 809 (1981). In Talley, the Court declined the opportunity to consider whether opposing counsel may stipulate to the trial court's sole reliance on the preliminary examination transcript in deciding a suppression motion. Talley, supra, p. 392, fn. 4, 301 N.W.2d 809.

In the present case, defendant sought a favorable ruling of law on facts adduced from preliminary examination testimony. The people did not dispute these facts which were based on the testimony of police officers; they do not do so now. We do not believe the Supreme Court, in Talley, meant to impose an absolute requirement that an independent hearing be held on every motion to suppress. Where a sufficiently complete stipulation of facts is made, the trial court may decide the motion based on the stipulation. See People v. Chernowas, 111 Mich.App. 1, 3, fn. 2, 314 N.W.2d 505 (1981). In Talley, the Court pointed to two [125 MICHAPP 572] problems which can arise if sole reliance is placed on a review of the preliminary examination transcript: the need for determinations of credibility and the inadequate exposition of constitutionally significant facts, Talley, supra, 410 Mich. p. 391, 301 N.W.2d 809. See also the concurring opinion by Justice Levin, Talley, supra, pp. 393-396, 301 N.W.2d 809. A stipulation of facts eliminates the problem of determining credibility. The facts stipulated to might still, however, be insufficiently detailed to inform the court of all that is constitutionally significant. In such a case, sole reliance on a stipulation would be error. In the present case, however, the people have failed to point to any area in which further elucidation of the facts might advance their position. Under the circumstances, it was not error to decide the suppression question without an independent hearing.

We nonetheless reverse the decision quashing the information and suppressing the use of the handgun in evidence. The trial court ruled that the search of defendant's car without a warrant was improper due to the absence of exigent circumstances justifying an immediate search.

Under federal law, the absence of exigent circumstances is irrelevant when police have probable cause to believe that evidence of crime will be found in a lawfully stopped automobile. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

In the present case, a restaurant employee observed the butt of a handgun, apparently carried by defendant in a shoulder holster. She activated a silent alarm, to which the police responded. Shortly after the alarm was activated, defendant [125 MICHAPP 573] was seen by a restaurant patron walking out to his car, opening the door, bending down and momentarily disappearing from sight. When police officers arrived on the scene, they frisked defendant, but found no handgun. They interviewed the restaurant employee and the restaurant patron who told them of defendant's visit to his car. An officer went to the car, opened the door and found the handgun in a shoulder holster under the front seat.

The reasonable inferences which could be drawn from the statement of the restaurant patron gave police probable cause to believe that evidence of a concealed weapons offense would be found in defendant's car. Had police not immediately searched the car, it could have been moved, resulting in the loss of the evidence. Because of the car's mobility, exigent circumstances existed justifying the seizure of the car while a magistrate's approval for the search was sought. The essence of the "automobile exception" is the United States Supreme Court's determination that, given these circumstances, police need not seek a magistrate's approval before they conduct a search. In Ross, Justice Stevens explained the justification for the Carroll-Chambers automobile exception allowing police to search the car immediately:

"These decisions are based on the practicalities of the situations presented and a realistic appraisal of the relatively minor protection that a contrary rule would provide for privacy interests. Given the scope of the initial intrusion caused by a seizure of an automobile--which often could leave the occupants stranded on the highway--the Court rejected an inflexible rule that would force police officers in every case either to post guard at the vehicle while a warrant is obtained or to tow the vehicle itself to the station." Ross, supra, 456 U.S. 798, 807, 102 S.Ct. 2157, 2163, fn. 9, 72 L.Ed.2d 572, 582, fn. 9.

[125 MICHAPP 574] He cited the following rationale from Chambers v. Maroney:

" 'For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.' " Ross, supra, 456 U.S. 798, 807, 102 S.Ct. 2157, 2163, fn. 9, 72 L.Ed.2d 572, 582, fn. 9.

We find no constitutional significance in the fact that defendant's car was parked in the restaurant's lot and that he was a short distance from it at the time he was confronted by the police. See People v. Bukoski, 41 Mich.App. 498, 200 N.W.2d 373 (1972); United States v. Troiano, 365 F.2d 416 (CA 3, 1966), cert. den. 385 U.S. 958, 87 S.Ct. 396, 17 L.Ed.2d 303 (1966); United States v. Callahan, 256 F.Supp. 739 (D.Minn.1964); Commonwealth v. Katz, 202 Pa.Super. 629, 198 A.2d 883 (1964); North v. Superior Court of Riverside County, 8 Cal.3d 301, 502 P.2d 1305, 104 Cal.Rptr. 833 (1972); United States v. Milham, 590 F.2d 717 (CA8, 1979); State v. Bottelson, 102 Idaho 90, 625 P.2d 1093 (1981); United States v. Bellina, 665 F.2d 1335 (CA4, 1981); United States v. Cobler, 533 F.Supp. 407 (WD Va.1982); State v. Januszewski, 182 Conn. 142, 438 A.2d 679 (1980); State v. Martin, 87 N.J. 561, 436 A.2d 96 (1981). The facts of this case and of the cases cited here are not even remotely similar to those considered in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

We reverse the orders quashing the indictment and suppressing the use of the handgun in evidence.

CYNAR, J., concurs.

[125 MICHAPP 575] MAHER, Presiding Judge (concurring).

I concur in the majority's reversal of the orders suppressing the evidence and quashing the information, but would remand for an evidentiary hearing on defendant's motion to suppress.

This case raises an issue left open by the Supreme Court in People v. Talley, 410 Mich. 378, 392, fn. 4, 301 N.W.2d 809 (1981): whether opposing counsel may stipulate to the exclusive use of the preliminary examination transcript in a hearing on a motion to suppress. I conclude that opposing counsel cannot so stipulate.

The transcript of the preliminary examination paints the following scenario. On January 29, 1981, an employee at a Burger King restaurant, while taking defendant's order, noticed a large bulge under defendant's clothing near his shoulder. When she saw the end of a gun, the employee thought there was to be a robbery and sounded an alarm. A restaurant patron, Elizabeth Wasik, then saw the defendant leave the restaurant, head toward a car and sit in it. Ms. Wasik then saw the defendant "bend over". The police arrived shortly thereafter. After speaking to both the employee and Ms. Wasik, they searched the defendant. Finding no weapon, one of the officers searched the car pointed out by Ms. Wasik. There, the officer found a gun in a shoulder holster on the floorboard behind the passenger seat. On the basis of this evidence, the defendant was eventually charged with carrying a concealed weapon on or about his person and/or carrying a concealed weapon in a motor vehicle, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424.

Bound over for trial, the defendant brought a motion to...