People v. Goss, Docket No. 78-2119
| Decision Date | 17 April 1979 |
| Docket Number | Docket No. 78-2119 |
| Citation | 280 N.W.2d 608,89 Mich.App. 598 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Herbert GOSS, Defendant-Appellee. 89 Mich.App. 598, 280 N.W.2d 608 |
| Court | Court of Appeal of Michigan — District of US |
[89 MICHAPP 599] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief, Asst. Pros. Atty., Timothy A. Baughman, Asst. Pros. Atty., for plaintiff-appellant.
Jay S. Kalish, Detroit, for defendant-appellee.
Before RILEY, P. J., and J. H. GILLIS and MacKENZIE, JJ.
Defendant was charged with carrying a concealed weapon. M.C.L. § 750.227; M.S.A. § 28.424. After he was bound over for trial defendant brought a motion to suppress evidence and quash the information. The trial court granted defendant's motion and the prosecutor appealed. In an unpublished per curiam opinion this Court remanded the case for additional findings. Docket No. 77-1139 (rel'd 3-9-78). The trial court carried out these instructions in an order dated April 25, 1978. The people now appeal from that order.
The parties stipulated that the factual basis for determination of the motion was contained in the preliminary examination transcript. That evidence [89 MICHAPP 600] was provided by the arresting officer's testimony. He stated that at approximately 1:30 a. m. on November 12, 1976, he and his partner spotted defendant and a female companion walking along Mack Avenue in the City of Detroit. According to the officer the female "appeared young looking". Suspecting the woman was in violation of Detroit's curfew ordinance, the officers pulled their car to the curb and, in the officer's words, "told the female to stop". At that point defendant made a movement toward his waistband, prompting the officers to draw their weapons and order him to freeze. As defendant stopped, a gun fell out of his coat. He was arrested on the instant charge and the two persons were transported to the station. There it was discovered that the woman was 19 years old and she was released.
The trial court based its order on two distinct grounds. First, the court found the officer's testimony that he was investigating a curfew violation to be "inherently incredible" under the factual situation presented. The trial court pointed out that the female was 19 years old and accompanied by the defendant, an adult, and the officer should have been mindful of the exemption from the curfew ordinance for "a minor accompanied by * * * other adult persons having the care or custody of the minor". Detroit Mun.Code, ch. 36 art. 3. The court, therefore, concluded that the stop was not justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The trial court went on to rule that even if the witness were believed, the Detroit curfew ordinance is unconstitutional. Hence, the stop was unsanctioned and the evidence was obtained as a direct result of a violation of defendant's constitutional rights.
[89 MICHAPP 601] In reviewing a trial court's order to suppress evidence and dismiss the charges, this Court applies a "clearly erroneous" standard. People v. Ulrich, 83 Mich.App. 19, 268 N.W.2d 269 (1978); People v. Robertson, 81 Mich.App. 446, 265 N.W.2d 365 (1978); People v. Terrell, 77 Mich.App. 676, 259 N.W.2d 187 (1977). A finding is "clearly erroneous" when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been made. People v. Hummel, 19 Mich.App. 266, 270, 172 N.W.2d 550 (1969).
In this case we are convinced that a mistake has been made. The trial court's decision to suppress the gun was based on its determination that the initial stop was unlawful.
In People v. White, 84 Mich.App. 351, 269 N.W.2d 598 (1978), two officers asked two males to get out of a car. The defendant, a female, had been sitting on the passenger side of the car. She was not requested to exit the car, but did so on her own. As she approached one of the officers, she reached as if to go into her purse. She was told not to go into the purse and when she did not stop the officer grabbed her hand. At that point he saw a revolver in the purse. In reversing the trial court's order suppressing the evidence, this Court stated:
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People v. Smith
...erroneous if this Court, as the reviewing Court, is left with the firm conviction that a mistake has been made. People v. Goss, 89 Mich.App. 598, 601, 280 N.W.2d 608 (1979). We are not left with such a feeling and affirm the trial court for the reasons which A seizure, or search, without a ......
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People v. Clark
...The trial court clearly errs when the reviewing court is left with a firm conviction that a mistake has been made. People v. Goss, 89 Mich.App. 598, 601; 280 N.W.2d 608 (1979). In the present case, defendant argues that the visually enhanced observations by Officer Traskel from his own home......
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People v. Bloyd, Docket No. 43903
...where, after reviewing all the evidence, the appellate court believes that a vital error has been committed. People v. Goss, 89 Mich.App. 598, 601, 280 N.W.2d 608 (1979). In the case before us, we believe that the trial court erred in refusing to suppress the evidence or quash the indictmen......