People v. Jones
| Citation | 163 N.W.2d 22,12 Mich.App. 369 |
| Decision Date | 23 July 1968 |
| Docket Number | No. 3,Docket Nos. 1697,1722,3 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Johnnie Mae JONES and Eugene Wright, Defendants-Appellants |
| Court | Court of Appeal of Michigan (US) |
James J. Kobza, Muskegon, for appellants.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Paul M. Ladas, Pros. Atty., Muskegon County, Muskegon, for appellee.
Before FITZGERALD, P. J., and GILLIS and BOWLES *, JJ.
The defendants were tried together and convicted by a jury in the circuit court for the county of Muskegon of the crime of breaking and entering. 1 They both appeal their conviction to this Court alleging slightly different errors in their particular conviction. The facts of their apprehension are not disputed.
Reference is made to the map of the area.
The police were summoned to the area early in the morning of November 24, 1964. Officers #1 and #4 began chasing 3 men from the jewelry store south down the alley to Isabella street, then east on Isabella. Officere #2 drove his police car down Getty street and stationed himself on Isabella street. While running, Officer #1 noticed a 1959 Pontiac slowly moving west on Isabella on the south side of the street with the lights out. He shouted, "Stop that car." Officer #2 did so and arrested the driver, defendant Johnnie Mae Jones. Officers #1 and #4 arrested defendant Eugene Wright behind a house further east on Isabella street. Defendant Jones was placed in the police cruiser and Officer #3 took the keys of the 1959 Pontiac automobile and gave it a cursory search.
Officer #2 started driving both defendants to jail, but upon reaching the jail he was told by radio to return the defendants to the scene of the incident immediately. He did so, the 1959 Pontiac was searched by Officer #3 in the presence of defendant Jones, and a crowbar was seized from the vehicle. That crowbar was later introduced into evidence at the trial.
Two issues are raised by defendant Jones: (1) Was her arrest lawful in that the arresting officer had probable cause to believe that she was engaged in a felonious act? (2) Was the search of her car, without a warrant, after she had left the scene and then returned in the custody of the police, and the introduction into evidence of a crowbar then seized, in violation of the Fourth Amendment to the United States Constitution and Const.1963, art. 1, § 11?
Defendant Wright raises these same 2 issues and alleges that if we find the arrest of defendant Jones and the search and seizure of the crowbar from her car to be illegal, then his conviction was error in that the crowbar was admitted in the consolidated trial. He admits that if the crowbar was properly obtained and introduced, then his conviction must stand. Defendant Jones raises a third issue which will be considered separately.
We first consider whether Officers #1 and #2 had reasonable cause to believe that defendant Jones was in some way connected with the felony. She refers us to the holding of the Supreme Court of this State in the case of People v. Zeigler (1960), 358 Mich. 355, 100 N.W.2d 456, which limits review on appeal of the propriety of a denial of a motion to suppress evidence to that evidence adduced at the preliminary hearing. Also, see People v. Kaigler (1962), 368 Mich. 281, 118 N.W.2d 406. By the application of this rule, defendant Jones would then say that insufficient cause was shown at that time to permit the introduction of the crowbar as it was allegedly the product of an illegal seizure following an illegal arrest. The circumstances of the arrest could not be amplified at the trial:
'Where a motion to suppress has been passed upon by the trial judge before the trial, the matter should not be gone into again upon the trial.' 2 Gillespie, Michigan Criminal Law and Procedure, (2d ed), § 874.
However, the trial court did allow the motion to suppress to be renewed by the defendant Jones and a final decision was postponed until the testimony of the officers was had in chronological order. The above rule is applied to prevent the jury from considering the manner in which evidence is obtained. In the present case, the renewed motion and arguments presented were made out of the presence of the jury and although the trial court should have ceased the debate at its inception, we do not find the argument to be prejudicial to the defendant or the people. Cf. People v. Blessing (1966), 378 Mich. 51, 142 N.W.2d 709.
We will limit our review on appeal in deference to the Ziegler rule, and find from the record made at the preliminary examination that Officer #2 had reasonable cause to stop and arrest the defendant Jones. Testimony there taken was limited by an application of the hearsay rule as to the communications received by the officers in their police cruiser radios which motivated them to proceed to the jewelry store. Such testimony was permitted on the trial. We make reference to C.L.1948, § 764.15 (Stat.Ann.1954 Rev. § 28.874):
'(c) When a felony in fact has been committed and he has reasonable cause to believe that such person has committed it;
'(d) When he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it;
'(f) When he has received such positive information broadcast from any recognized police or other governmental radio station, or teletype, as may afford him reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it;'
Again, the court is faced with the task of applying a definition of 'reasonable cause' to the particular facts of a case. The officers clearly had knowledge of the occurrence of a breaking and entering. Three witnesses had been awakened by noises emanating from the jewelry store and they called the police. Their precise revelations to the police were properly excluded by the hearsay rule, but they could testify as to their own observations made at that time. We disagree with the argument that the police officers must be prohibited from stating any purpose for their going to the jewelry store, and find that their presence at that location 'as a result of a police call' may be considered in determining reasonable cause for their actions there within the limitations of the hearsay rule.
Thus, we have the officers arriving at the scene, but we do not know why they have been summoned. Officer #1 alights from his cruiser and sees men moving about behind the jewelry store. They begin running down the alley toward Isabella street. Running himself, he yells, 'Halt, police', but the men continue to flee and the officer takes up the chase. Upon reaching Isabella and turning east, he sees the 1959 Pontiac begin to move away from the curb on the south side of Isabella in a westerly direction with no lights on. He yells, 'Stop that car, don't let it get away', and continues to pursue the fleeing men, giving warning shots from his gun. Officer #2 had arrived at the scene in another cruiser. After letting his partner out alongside the jewelry store, he drove south on Getty and turned left onto Isabella. He heard the cry of Officer #1 contemporaneously with his own observation of the 1959 Pontiac moving toward him with the lights out. He responded to the direction of Officer #1 and stopped the Pontiac, arresting its driver, Johnnie Mae Jones.
In the case of People v. Gonzales (1959), 356 Mich. 247, 97 N.W.2d 16, the Supreme Court disallowed a search of a vehicle following its being stopped for a traffic violation. Officer #2, under no stretch of the imagination, can be said to have stopped the Pontiac with the intention of apprehending a violator of the traffic laws. We must consider the additional fact that the car was more than suspicious to a reasonable-minded police officer by reason of its proximity (one-half block) to a location to which several police cruisers had been summoned, by reason of its placement on the wrong side of the street, because of its beginning to move away when fleeing men, pursued by a police officer, passed by it and by reason of its not having lights turned on at this hour in the morning. It is true that suspicion alone is insufficient to warrant an arrest and subsequent search. People v. Burt (1883), 51 Mich. 199, 16 N.W. 378. However, we refer to our detailed discussion on this issue in People v. Wolfe (1967), 5 Mich.App. 543, 546, 147 N.W.2d 447, where it is stated:
'The sole question we have before us is the latitude of the police in making an arrest, without warrant, based on 'prudent belief', and physical evidence visible to the world, coupled with other probative circumstances such as time of day, recognition of the suspects, and like factors.'
We refer further to our discussion and reference in Wolfe to George, Constitutional Limitations on Evidence in Criminal Cases, Institute of Continuing Legal Education (1966), pp. 12 and 13, that it is important to find that the arresting officer must 'believe' and not merely 'suspect' that the person arrested has committed the felony. The test is this: would a reasonable mind have reached the same conclusion made by the arresting officer that this defendant was engaged in the commission of a felony? See People v. Williams (1962), 368 Mich. 494, 118 N.W.2d 391; Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. We add a further portion of our holding in Wolfe for clarification of this rule (5 Mich.App. p. 552, 147 N.W.2d p. 452):
'Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it--whether at that moment the facts and circumstances within their...
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