People v. Hunter

• Decision Date: 09 November 1976
• Docket Number: 25559,Docket Nos. 24948
• Citation: 249 N.W.2d 351,72 Mich.App. 191
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. R. B. HUNTER and Carl G. Guster, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 351

249 N.W.2d 351

72 Mich.App. 191

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. R. B. HUNTER and Carl G. Guster, Defendants-Appellants.

Docket Nos. 24948, 25559.

Court of Appeals of Michigan.

Nov. 9, 1976.

Released for Publication Jan. 27, 1977.

Matuszak & Stillwagon by R. Michael Stillwagon, Ann Arbor, for hunter.

Calder & Kirkendall by Robert E. Logeman, Ypsilanti, for Guster.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before WALSH, P.J., and ALLEN and CORKIN, ^* JJ.

WALSH, Presiding Judge.

The defendants were found guilty of armed robbery ¹ following a jury trial in Washtenaw County circuit court. Hunter was sentenced to a prison term of 25 to 40 years. Guster was sentenced to a prison term of 20 to 40 years. Both defendants now appeal as of right.

On January 25, 1975, shortly before 2:00 a.m., two men entered the Crystal House Motel in Ann Arbor, Michigan, and robbed Chris Milaras, the night attendant, at gunpoint. Milaras turned over the cash register receipts and was ordered to lie down in a back room. After several minutes, Milaras discovered that the robbers had fled and called the police.

Ann Arbor police officers Paul Viergever and James Schantz arrived at the motel at approximately 1:59 a.m. Milaras described the robbers as two black males. One was oriental looking, 5 6 --5 7 tall, weighed approximately 170 pounds and wore a dark colored jacket and a green hat with small brim. The other was 5 9 tall, had a medium build and wore dark clothing. The descriptions were telephoned to the police dispatcher together with the information that approximately $170 in bills and rolled coins had been stolen. The use of a vehicle was not mentioned.

Officers James Schook and Dale Williams received the radio broadcast around 2:00 a.m. and parked in a gas station on the corner of Main and Stadium Streets in Ann Arbor in order to watch for persons matching the descriptions. After observing traffic for about five minutes, the officers saw a 1964 Chevrolet containing two black males traveling in a westerly direction away from the location of the motel. The passenger in the car watched the patrol car while the vehicle passed through the intersection and afterwards, completely turning around in his seat. The officers were unable to see the facial characteristics of the occupants. Neither the driver nor the passenger was wearing a green hat. Based on the conduct of the passenger and the fact that the occupants were two black males, however, the officers decided to stop the vehicle.

After the Chevrolet had pulled to the curb, the driver and passenger exited. Officer Williams approached the driver, advised him that he had been stopped in connection with the armed robbery, and requested identification. Officer Schook made a similar request of the passenger. The driver and passenger produced drivers licenses bearing the names R. B. Hunter and Carl Guster, respectively. The officers returned to the patrol car and ran a warrant check on the two. The defendants reentered their vehicle. Learning of an outstanding warrant against Guster, the officers reapproached the car for purposes of taking Guster into custody and advising Hunter that he was free to go. As the officers neared the car, the defendants stepped outside. While advising Guster that he was under arrest on the outstanding warrant, Schook noticed a green hat stuck between the driver's seat and the console. He asked Guster if he could look inside the car and received an affirmative response. As Schook reached for the hat, he observed money protruding from the edge of the console. He opened the console and discovered a large amount of money consisting of wrapped bills and rolled coins. Schook went to the rear of the car and placed Guster and Hunter under arrest for armed robbery. While Williams watched the men, Schook returned to the car and seized the hat, the money, clothing from the back seat and a holster for a small caliber gun found under the driver's seat. A tow truck was called and the Chevrolet was transported to the police station. Without attempting to secure a warrant, Schook immediately searched the vehicle and discovered a small caliber pistol under the dashboard.

At trial, defense counsel objected to the prosecutor's motion to admit the hat, pistol, money and holster into evidence. Counsel argued that an insufficient factual basis existed to justify the stop, that the seizure of the hat could not be justified on the basis of the plain view doctrine as the hat had not been linked to the crime and that Guster was incapable of consenting to a search of the car, not being the owner, and that his consent was involuntary as he was not advised of his right to refuse. Counsel further contended that the warrantless search at the police station violated defendants' constitutional rights. The trial court rejected defendants' arguments and admitted the items into evidence. On appeal, defendants renew their arguments that the evidence should have been suppressed.

In People v. Whalen, 390 Mich. 672, 682, 213 N.W.2d 116, 121 (1973), the Michigan Supreme Court adopted four rules governing the stopping, searching and seizing of automobiles and their contents '1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.

'2. Said reasonableness will be determined from the facts and circumstances of each case.

'3. Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.

'4. A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police.'

Accord, People v. Parisi, 393 Mich. 31, 222 N.W.2d 757 (1974); People v. Lillis, 64 Mich.App. 64, 235 N.W.2d 65 (1975). The reasonableness of a search or seizure depends upon balancing the need to search or seize against the invasion of personal security which such action entails. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

'The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. * * * A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.' Adams v. Williams, 407 U.S. 143, 145--146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616--617 (1972) (citations omitted).

Accord, People v. Whalen, supra. Specific, articulable facts must be known to the officer at the time of the intrusion which would warrant a man of reasonable caution in believing that the action taken was appropriate. Terry v. Ohio, supra; People v. Lillis, supra. An investigatory stop may be based on a reasonable suspicion, rather than a reasonable belief, of the possibility, as compared to the probability, of criminal activity. People v. Lillis, supra. Because the reasonableness of a stop must be based on the facts of each case, an examination of other decisions provides only an indication of the facts necessary to justify such action.

In People v. Whalen, supra, police officers were advised by radio broadcast of a jewelry store robbery and were directed to watch for a large white car with three dark complected occupants, possibly Mexicans, one of whom was wearing a tan jacket. Two Michigan State policemen saw a white Continental and a dark Corvette traveling toward the Ohio border and pulled alongside the vehicles, shining flashlights into the faces of the drivers. The driver of the Continental was dark complected and wearing a tan jacket. The officers stopped the vehicles and subsequently observed jewelry boxes, jewelry and money in the Continental. Applying the rules previously quoted, the Supreme Court found that the officers acted reasonably in stopping the vehicle: the driver, his apparel and the car matched the general descriptions given in the broadcast and the car was stopped on a highway frequently used by criminals for fleeing to another state. See also, People v. Hutton, 50 Mich.App. 351, 213 N.W.2d 320 (1973) (automobile observed in the early morning hours with a combination television set-record player protruding from the trunk held sufficient to justify...