People v. Gwinn

• Citation: 47 Mich.App. 134,209 N.W.2d 297
• Decision Date: 22 May 1973
• Docket Number: No. 3,Docket No. 12078,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bethany GWINN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 297

209 N.W.2d 297

47 Mich.App. 134

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bethany GWINN, Defendant-Appellant.

Docket No. 12078.

Court of Appeals of Michigan, Division No. 3.

May 22, 1973.

Released for Publication July 25, 1973.

Ray J. MacNeil, Kerr & Stroebel, Saginaw, for defendant-appellant.

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

Before T. M. BURNS, P.J., and HOLBROOK and VanVALKENBURG, ^* JJ.

T. M. BURNS, Presiding Judge.

Defendant was convicted by a jury of aiding and abetting a breaking and entering with intent to commit a larceny. M.C.L.A. § 767.39; M.S.A. § 28.979 and M.C.L.A. § 750.110; M.S.A. § 28.305. She was sentenced to a term of from 1 1/2 to 15 years imprisonment and now appeals.

On October 30, 1970, a masked man armed with a jackknife broke into a mobile home, sexually assaulted the female occupant, and purloined a radio upon leaving the premises. After the man had departed, the victim's daughter telephoned the state police and reported the crime. The investigating officer who responded to the call obtained a description of the radio and a description of the assailant. The radio was described as a small, black, battery-operated, transistor-type measuring 7 12 with a handle at one end. The radio was designed to receive police calls and was thought to be a 'Stewart' brand. The perpetrator of the crime was described as a white male, 5 10 to 6 tall, wearing a black leather jacket, dark trousers, and a multicolored ski mask over his face. The descriptions of the radio and the suspect were broadcast to the state police units in the area.

Approximately one hour later, a prowler fitting the description noted above was involved in a similar incident at a mobile home some eight miles from the site of the first breaking and entering. While enroute to the scene of the second breaking and entering, a state police trooper observed the defendant and her small baby parked in an automobile on the shoulder of the highway across from the trailer court where the second crime had been reported.

The trooper stopped, approached defendant's vehicle, and asked her if she was experiencing any difficulty. Defendant responded that the baby was sick and that she was cleaning up the mess it had made in the car. The trooper, however, could detect neither an odor nor any other circumstance to indicate the infant was ill. The defendant also stated that she would be returning home shortly. From the vehicle registration, the trooper noted that the defendant's home was in Davison, Michigan and that the auto was registered in the name of her husband, Otis Kent Gwinn. In addition as he was questioning the defendant, the trooper noticed a small, black transistor radio on the right front floor of the defendant's automobile. The radio appeared to answer the description of the one taken during the first breaking and entering earlier that evening.

Due to the defendant's answer with respect to the baby's illness, her close proximity to the second breaking and entering, and her possession of a radio fitting the general description of one taken in a break-in earlier that evening, the trooper connected the defendant with the first breaking and entering and kept the defendant's car under surveillance when she drove away.

First the defendant drove homeward in the direction of Davison, then made a U-turn three miles later and drove back toward the trailer court. Before reaching the trailer court, however, the defendant pulled into a parking lot. She remained parked there for about one hour and fifteen minutes, at which time the trooper again approached the defendant's auto. After some conversation with the defendant about her intention of returning to Davison, the trooper reached into the defendant's vehicle and removed the black transistor radio which by this time had been moved from the floor of the auto to a position on the dash board behind the steering wheel.

There is a dispute as to what happened next. At defendant's preliminary examination, the trooper testified that he told the defendant she could follow him to the state police post if she wished. The trooper stated that the defendant was not under arrest at this time. At trial the trooper related that had the defendant chosen not to follow him, she would have been permitted to return home. The defendant on the other hand testified that she was ordered to follow the trooper back to the post.

Upon arriving at the state police post, the defendant, at the trooper's request, surrendered the keys to her vehicle. The trooper, accompanied by another officer who had dressed himself in a light tan jacket and head scarf to resemble a silhouette of the defendant, drove the defendant's automobile back to the point where the defendant was initially questioned, i.e., across the highway from the trailer court where the second break-in was reported. After waiting there a few minutes a man fitting the description of the prowler walked from the trailer court, approached the auto, opened the door on the driver's side, discovered the ruse, and fled. The officers alighted from the vehicle, gave chase, apprehended the suspect, and placed him under arrest. The suspect was taken back to the police post and identified as the defendant's husband. The officers then arrested the defendant. Defendant's arrest took place approximately one hour after the seizure of the radio from her automobile.

The radio was admitted into evidence at defendant's preliminary examination. Defense counsel objected on the ground that the radio was the product of an illegal search and seizure and was thus inadmissible.

At a preliminary examination, the prosecution is required to show by Legally admissible evidence that a crime has been committed and that there is probable cause to believe that the defendant is guilty of having perpetrated the crime. M.C.L.A. § 766.13; M.S.A. § 28.931, People v. Walker, 385 Mich. 565, 189 N.W.2d 234 (1971). Since the radio was admitted into evidence and formed part of the basis which led to the defendant being bound over for trial, we are confronted with the question of whether the radio was properly admissible notwithstanding the failure of the district court to pass upon the matter.

The radio in question was seized from the defendant's auto without a warrant approximately one hour prior to defendant's arrest. From this the defendant argues that the radio was inadmissible because the seizure was not made incident to an arrest. This argument is without merit.

A prior valid arrest is not a condition precedent for a police officer's authority to conduct a warrantless search and seizure. People v. Kuntze, 371 Mich. 419, 124 N.W.2d 269 (1963). Therefore it is immaterial whether the search and seizure of the radio took place before or after defendant's arrest.

Second, it is the defendant's position that the trooper lacked probable cause to seize the radio. Again we are constrained to disagree.

The 4th and 14th Amendments to the United States Constitution and Const.1963, art. 1, § 11 require the officer who conducts a warrantless search and seizure to have probable cause for his action. People v. Smith, 43 Mich.App. 400, 204 N.W.2d 308 (1972).

Probable cause is not a suspicion but rather stems from some fact, circumstance, or information which would create an honest belief in the mind of a reasonably prudent man. People v. Pitts, 40 Mich.App. 567, 199 N.W.2d...