People v. Klager

• Decision Date: 23 July 1981
• Docket Number: Docket No. 51088
• Citation: 310 N.W.2d 36,107 Mich.App. 812
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Mark KLAGER, Defendant-Appellant. 107 Mich.App. 812, 310 N.W.2d 36
• Court: Court of Appeal of Michigan — District of US

Page 36

310 N.W.2d 36

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Mark KLAGER, Defendant-Appellant.

Docket No. 51088.

107 Mich.App. 812, 310 N.W.2d 36

Court of Appeals of Michigan.

July 23, 1981.

Released for Publication Sept. 28, 1981.

[107 MICHAPP 813] David A. King, Ann Arbor, for plaintiff-appellee.

Terrance E. Klump, South Lyon, for defendant-appellant.

Before HOLBROOK, P.J., and CAVANAGH and BEASLEY, JJ.

PER CURIAM.

Defendant was convicted by a jury [107 MICHAPP 814] of receiving and concealing stolen property over $100, M.C.L. § 750.535; M.S.A. § 28.803. He was sentenced to 11/2 to 5 years imprisonment and appeals as of right.

While on routine patrol, Deputy Kenneth Bailey of the Washtenaw County Sheriff's Department stopped defendant for a traffic violation in the Township of Northfield. Defendant was unable to produce a registration for the automobile and could not identify its owner by name. Deputy Bailey, suspecting that the car may have been stolen, called for assistance. Deputies Thomas Spiess and James Stansik responded to the call and further questioned defendant and a passenger accompanying defendant, a Tim Bailey. Still suspicious that the car may have been stolen, the deputies detained defendant and Tim Bailey pending a registration check. Deputy Spiess asked defendant whether he had "any objection" to the deputy opening the trunk. Defendant produced the trunk key and opened the trunk himself. Deputy Spiess recognized two items in the trunk of the car, a Panasonic CB base radio and a gray metal cash box, which matched a description of property reported stolen in that day's police summary sheet. Deputy Spiess asked defendant what was in the box and defendant replied that the box just contained some change. The box was opened and was found to contain numerous coins. Defendant was then taken to the deputies' squad car, where the deputies ran a check on the radio's serial number and determined that it had been stolen. At this point, the deputies arrested defendant and read him his Miranda ¹ rights for the first time.

After receiving the Miranda warnings, defendant[107 MICHAPP 815] identified the owner of the car as a Terry Baumgartner and stated that he had dropped off Terry Baumgartner and a friend after they had told him that they were going to steal a battery. Defendant further stated that he was planning on picking up Terry Baumgartner and his friend as soon as they were finished. Defendant was not charged with involvement in the plan to steal a battery and there was no evidence that any battery was actually stolen.

Before trial, defendant made a motion to suppress evidence of the items found in the trunk, arguing that the search of the trunk was illegal. The trial court denied the motion, finding that defendant had consented to the search of the trunk. Defendant also moved for, and was granted, a Walker ² hearing to suppress evidence of certain of defendant's statements. At that hearing, the trial court refused to suppress evidence of defendant's admission concerning the contents of the box.

Defendant raises four issues on appeal, one of which merits discussion. Defendant first contends that the trial court committed error requiring reversal in failing to suppress evidence of the two items found in the trunk. Defendant cites Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), People v. Iverson, 34 Mich.App. 519, 191 N.W.2d 745 (1971), and People v. Marshall, 25 Mich.App. 376, 181 N.W.2d 578 (1970). These cases are distinguishable. Each decision was based upon a finding that the arresting officers lacked either probable cause or exigent circumstances to justify a warrantless search. In the present case, the prosecution sought to justify the search on a theory[107 MICHAPP 816] of consent. "Whether a consent is valid is a matter of fact based upon the evidence and all reasonable inferences to be drawn from it." People v. Chism, 390 Mich. 104, 123, 211 N.W.2d 193 (1973). The presence of coercion or duress would require a finding that consent was not validly given. People v. Kaigler, 368 Mich. 281, 118 N.W.2d 406 (1962).

Defendant contends that he should have been advised of his rights to refuse the search of the trunk and, absent such a warning, the search of the trunk was illegal. This contention is without merit. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In determining the validity of the consent to search, this Court must consider the "totality of the surrounding circumstances". People v. Reed, 393 Mich. 342, 224 N.W.2d 867 (1975) cert. den. 422 U.S. 1044, 1048, 95 S.Ct. 2660, 2665, 45 L.Ed.2d 696, 701 (1975). Absent evidence of inherently coercive tactics, either from the nature of police questioning or conduct or the environment and atmosphere in which events occur, the prosecution need not demonstrate "an intentional relinquishment * * * of a known right" in order to show a valid consent. Id., 363, 224 N.W.2d 867. Applying these principles to the present case, the relevant circumstances are as follows: (1) defendant was stopped for a traffic violation; (2) defendant was unable to produce a proper registration and could not fully identify the owner of the car; (3) pending verification of defendant's claim that the car was borrowed rather than stolen, two more deputies arrived, resulting in a total of three deputies at the scene; (4) deputy Spiess asked defendant whether he "had any objection" to the deputy's opening the trunk; (5) defendant removed the trunk key from the keyring in the ignition, and opened the trunk himself.

Defendant concedes that the...