People v. Goodman

• Decision Date: 29 January 1975
• Docket Number: No. 2,Docket No. 19092,2
• Citation: 227 N.W.2d 261,58 Mich.App. 220
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack Edward GOODMAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 261

227 N.W.2d 261

58 Mich.App. 220

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack Edward GOODMAN, Defendant-Appellant.

Docket No. 19092.

Court of Appeals of Michigan, Division No. 2.

Jan. 29, 1975.

Released for Publication April 4, 1975.

Henry L. Greenwood, Saginaw, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George A. Holmes, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and BASHARA and ALLEN, JJ.

PER CURIAM.

This appeal questions the admissibility of evidence seized from the defendant's automobile by a police officer incident to a stop for a traffic violation. The defendant entered a plea of nolo contendere to the charged offense of carrying a concealed weapon in a motor vehicle, M.C.L.A. § 750.227; M.S.A. § 28.424, was found guilty by the trial court and sentenced to serve 5 years probation. From his plea-based conviction, defendant appeals as of right.

The facts are largely undisputed. On February 24, 1973, at 1:30 a.m., the defendant was stopped by two Tuscola County sheriff's deputies because the defendant's car had an inoperative headlight.

After the defendant had pulled over, he exited his car. One of the deputies then conducted a visual inspection of the interior of the automobile by shining a flashlight through its windows. During this inspection, the officer observed an unzipped black leather pistol case or gun holster sticking out from under the driver's seat next to the floor console. When the officer reached inside the car to retrieve the holster, he found a paper sack containing a handgun. The gun case, too, contained a small firearm.

The defendant sought to suppress the evidence, arguing that the discovery, seizure and subsequent admission into evidence of the revolvers violated his right to be free from 'unreasonable searches and seizures'. U.S.Const. Am. IV; Const.1963, art. 1, § 11. The trial court upheld their admission solely on the ground that the police officer was lawfully positioned at the time of the visual inspection and therefore his seizure of the evidence was lawful under the plain-view doctrine.

Although the issue was neither raised nor briefed on appeal, defendant's plea of nolo contendere waived the right to challenge on appeal the denial of the motion to suppress. M.C.L.A. § 767.37; M.S.A. § 28.977, states that where a plea of nolo contendere is accepted 'the court shall proceed as if he (defendant) had pleaded guilty'. A guilty plea waives any non-jurisdictional defects in prior stages of the proceedings. People v. Pogue, 54 Mich.App. 74, 75--76, 220 N.W.2d 317 (1974). It also waives the right of an appeal from an order denying a motion to suppress the evidence. People v. Wickham, 41 Mich.App. 358, 360, 200 N.W.2d 339 (1972). We therefore affirm the trial court's application of the plain-view rule and denial of the motion to suppress.

Without intending to establish precedent and solely because substantive issues were raised on appeal, we proceed to dispose of the issues submitted as briefed. The seizure of objects within the plain view of an officer, in a place where he had a right to be, is not proscribed by the Fourth Amendment. People v. Whalen, 390 Mich. 672, 213 N.W.2d 116 (1973). In the instant case, the officers clearly had a right to be near the defendant's automobile, having lawfully stopped the defendant for a traffic violation. People v. Kuntze, 371 Mich. 419, 424, 124 N.W.2d 269 (1963).

The use of a flashlight does not automatically transform a daytime plainview observation into a nocturnal Fourth Amendment search. People v. Whalen, Supra, 390 Mich. 672, 679, 213 N.W.2d 116; Marshall v. United States, 422...