People v. Johnson

• Decision Date: 26 June 1973
• Docket Number: No. 3,Docket No. 13895,3
• Citation: 48 Mich.App. 50,209 N.W.2d 868
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elwood JOHNSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 868

209 N.W.2d 868

48 Mich.App. 50

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elwood JOHNSON, Defendant-Appellant.

Docket No. 13895.

Court of Appeals of Michigan, Division No. 3.

June 26, 1973.

Released for Publication Aug. 24, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

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

Before DANHOF, P.J., and McGREGOR and MILES ^*, JJ.

DANHOF, Presiding Judge.

Defendant was convicted by a jury of carrying a concealed weapon, M.C.L.A. § 750.227; M.S.A. § 28.424. He was sentenced to a term of 2 1/2 to 5 years in prison and appeals. We affirm.

Prior to trial, a motion was made to suppress certain evidence claimed to have been the product of an illegal search. At the hearing on the motion to suppress, the following facts appear from the record. On October 10, 1971, at approximately 6:00 p.m., defendant was a passenger in a 1965 Pontiac automobile driven by Lee Roy Reed which was stopped by a Michigan State Police trooper because the right taillight was not operating. The trooper stated that it was dusk, and that about half the cars on the road had their lights on. The trooper approached the car and informed Reed of the inoperative taillight. When the trooper saw a TV set on the back seat of the automobile, he asked to examine Reed's operator's license, vehicle registration and proof of insurance. While in the process of examining these documents, the beam of the trooper's flashlight fell upon a pistol on the passenger's side of the automobile, behind defendant's left foot. Thereupon, both Reed and defendant were ordered out of the car, placed under arrest for carrying a concealed weapon, frisked, and handcuffed. The weapon, a .38-caliber Smith & Wesson top-break, was removed from the automobile.

The trooper placed the suspects in the rear seat of the patrol car and radioed for assistance of another car and a wrecker. When help arrived, the trooper returned to the stopped automobile to remove the television set and search for other weapons. Upon opening the door of the car, he noticed on the floor another pistol, a .32-caliber automatic and a small bottle which apparently contained cocaine. While removing these items the trooper noticed the butt of a third pistol, a .38-caliber Smith & Wesson side-break snub-nosed revolver sticking out from under the passenger seat. All of these items were confiscated.

Concerning the seizure of the first weapon, there was no error in the denial of defendant's motion to suppress. M.C.L.A. § 257.686(b); M.S.A. § 9.2386(b) provides:

'Either a tail lamp or a separate lamp shall be so constructed and placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of 50 feet to the rear. Any tail lamp or tail lamps, together with any separate lamp for illuminating the rear registration plate, shall be so wired as to be lighted whenever the head lamps or auxiliary driving lamps are lighted.'

This statute gave the trooper the necessary authority to stop this vehicle. Having had the right to stop and be where he was, the trooper had the right to seize any weapons falling in his plain view. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); People v. Tisi, 384 Mich. 214, 180 N.W.2d 801 (1970); People v. Kuntze, 371 Mich. 419, 124 N.W.2d 269 (1963).

The legality of the further search of the cabin of the automobile and the seizure of the second and third weapons remains, however, an issue. Defendant contends that since he and Reed had been removed from the vehicle, placed under arrest, handcuffed, placed in the patrol car, and since another trooper had arrived, there was no need for a further warrantless search of the vehicle. Defendant contends that this is so because neither suspect could have regained the automobile to destroy evidence or reach weapons.

After defendant and Reed had been placed in the patrol car and had been given the Miranda warnings, the trooper requested and was given the name of defendant Johnson. Upon being informed of defendant's last name, the trooper remembered reading in the radio log earlier that day that a 1965 Pontiac automobile which he seemed to remember was registered in the name of Johnson had been involved in a murder in the area of Sixth and Myrtle in the City of Saginaw. The car in which defendant was riding was stopped not far from Sixth Street and was the same make and year, but was not registered in the name of Johnson.

Under these circumstances we hold that it was not unreasonable for the trooper to return to the stopped vehicle and conduct a cursory search of its cabin to determine either whether there was additional evidence or fruits of the concealed weapons offense, or whether the vehicle had a connection with the earlier reported murder. The search was made at the scene and immediately following a lawful felony arrest. The search was confined to the cabin area and did not intrude into locked or hidden places. The distinction between a search of the cabin area as opposed to the trunk area of an automobile whose occupants had been placed under arrest for a concealed weapons offense was made by Judge Levin in People v. James, 36 Mich.App. 550, 194 N.W.2d 57 (1971). There two handguns found in the cabin were declared admissable under ...