People v. Kremko

• Decision Date: 26 April 1974
• Docket Number: 16491,No. 1,Docket Nos. 15003,1
• Citation: 52 Mich.App. 565,218 N.W.2d 112
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alexander William KREMKO, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alex N. SAVCHUCK, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 112

218 N.W.2d 112

52 Mich.App. 565

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alexander William KREMKO, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alex N. SAVCHUCK, Defendant-Appellant.

Docket Nos. 15003, 16491.

Court of Appeals of Michigan, Division No. 1.

April 26, 1974.

Released for Publication May 24, 1974.

Marlynn Marcks, Harris, Stein & Hooberman, Detroit, for kremko.

Albert Summer, Detroit, for Savchuck.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Michael R. Mueller, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and QUINN and CARLAND,* JJ.

V. J. BRENNAN, Presiding Judge.

Defendants, Alexander W. Kremko and Alex N. Savchuck, were each convicted by a jury in the Wayne County Circuit Court on one count of possession of burglar's tools (M.C.L.A. § 750.116; M.S.A. § 28.311) and on two counts of carrying a concealed weapon (M.C.L.A. § 750.227; M.S.A. § 28.424). Both defendants now appeal raising several issues for our consideration.

On the night of February 4, 1972, officer Paul Phillips and Sergeant Clarence Bushway of the Lincoln Park Police Department were on patrol in the area of Dix and Reo Streets. These officers were travelling north on Dix when they observed an automobile parked at the side of Reo with its motor running, lights out and trunk partially open. They proceeded to the next intersection, turned right and went down an alley which brought them to Reo Street. Officer Phillips pulled the police car to the side of the street opposite the car they had earlier observed. He then got out of the police car and proceeded toward the parked car when he heard police calls coming from inside of it. He approached the car on the driver's side and saw a bag with two antennas protruding from its top in the rear of the car where the back seat was supposed to be. He also observed a black wire extended from the bag into the front seat. He thereupon placed the two persons in the automobile, the defendants herein, under arrest for possession of an operating police radio in a motor vehicle without a license (M.C.L.A. § 750.508; M.S.A. § 28.776). A pat-down search was then conducted of each defendant and they both were given their Miranda warnings. The search of defendant Kremko uncovered only a small flashlight while the search of defendant Savchuck uncovered several shotgun shells and five 38-caliber bullets. The defendants were asked whether they had any guns in the car to go along with the bullets and shells but no response was given. The defendants were handcuffed and placed in the rear seat of the police car. Officer Phillips then went to the defendant's automobile and removed the police radio. He made a search of the interior of the vehicle, including the glove compartment and under the front seats. He found, among other things, some tools, flashlights, gloves and a brown wig. He then went to the rear of the car and observed a 'dolly' hanging partially out of the trunk. The trunk lid was tied down with a piece of string or rope but there still was an opening of two feet or more. Through this opening officer Phillips saw, in addition to the dolly, a rolled-up tan rug with the butt of a gun exposed. He thereupon untied the string and removed the dolly and rug. Inside the rug was a loaded 12-gauge shotgun. At this same time officer Phillips also found and removed a .38-caliber pistol and a brown suitcase. The suitcase was found to contain an electric drill and other tools.

Defendants were charged with possession of burglar's tools and with carrying concealed weapons in their automobile. After their preliminary examination, the defendants moved to suppress from evidence all the articles taken after their arrest, except the police radio, on the grounds that they were obtained in violation of their right to be free from unreasonable searches and seizures. U.S.Const. Amend. IV; Const.1963, Art. 1, § 11. The trial court denied defendants' motion and the articles were admitted into evidence at trial over defendants' objection. Defendants were each convicted on all three counts and now bring this appeal.

Defendants first contend that the lower court erred in refusing to suppress all the evidence taken from their person and obtained through a search of their car at the time of their arrest. We disagree. At the time the defendants were personally searched they had been placed under arrest by officer Phillips. This gave the police officers the right to search the persons of the defendants and any evidence so obtained was lawfully taken and properly admitted at defendants' trial. This search was reasonable and within the permissible limits of the fourth amendment. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Similarly, the search of defendants at the station house was a proper 'inventory' search and the items obtained thereby were properly admitted.

In determining the validity of the search of the automobile it is important to remember that we are guided by a different standard than if we were dealing with the search of a dwelling place. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); People v. Whalen, 390 Mich. 672, 213 N.W.2d 116 (1973). '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.' People v. Whalen, Supra, 682, 213 N.W.2d 121. In the case at bar officer Phillips conducted a search of the interior of the automobile only after the search of defendants' persons uncovered numerous shotgun shells and .38-caliber bullets. The discovery of the shells and bullets, when considered together with the circumstances which first directed the officers' attention to defendants' automobile and the fact that an operating police radio was in the car, led the officers to conclude, and justifiably so, that a weapon might be contained somewhere in the car. Under these circumstances the search of the interior of the car cannot be said to have been unreasonable. See Cady v. Dombrowski, Supra. Accordingly, the evidence so obtained, including that retrieved from the car at the station house, was properly admitted.

The articles seized from the trunk of the car were also properly admitted because they were in plain view of officer Phillips who was in a place he had a legal right to be. People v. Whalen, Supra; People v. Gray, 37 Mich.App. 189, 194 N.W.2d 545 (1971), leave den., 388 Mich. 802 (1972). The butt of the shotgun was seen by officer Phillips through the trunk opening. He then untied the rope or string to remove the shotgun and discovered the other evidence complained of. The evidence so seized fell within the plain view doctrine and was properly admitted.

Defendant Savchuck vigorously contends that he was denied his constitutionally guaranteed rights to a fair trial and due process of law when officer Phillips, in response to a question asked by the prosecutor on redirect examination, stated that defendant Savchuck refused to give any information at the time of his arrest and booking. Defendant Kremko also relies on this alleged error in seeking to have his conviction reversed but quite candidly, and correctly, concedes that this issue may only relate to defendant Savchuck's conviction.

During the course of the prosecutor's redirect examination of officer Phillips the following questioning occurred:

'Q. Now, also in response to a question from Mr. Summer that has to do with the transcript from the preliminary examination, you answered a question which had to do with a John Doe; is that correct?

'A. Yes, sir.

'Q. All right. How did the John Doe business come about?

'A. At the time of the arrest and booking, the Defendant Savchuk refused to give any information.' (Emphasis Added)

Defendant Savchuck relies on the emphasized portion of the above quote in support of his contention that reversible error was committed.

It is clear, as defendant alleges, that the admission of testimony that a defendant exercised his privilege of silence at the time of his arrest is reversible error unless such testimony was elicited to impeach the defendants' inconsistent statements at trial or unless the error can be said to have been harmless beyond a reasonable doubt. People v. Miller, 49 Mich.App. 53, 211 N.W.2d 242 (1973); People v. Severance, 43 Mich.App. 394, 204 N.W.2d 357 (1972), leave den., 389 Mich. 758 (1972); People v. Jablonski, 38 Mich.App. 33, 195 N.W.2d 777 (1972). In the case at bar defendant did not testify in his own behalf so it cannot be claimed that this testimony was given to impeach a prior inconsistent statement of defendant. It is claimed, however, that the error here complained of was harmless beyond a reasonable doubt. We agree. When defendant Savchuck's attorney was questioning officer Phillips concerning testimony he had given at the preliminary examination, it was brought out that the officers initially referred to defendant Savchuck as John Doe. On redirect the prosecutor, apparently believing that the jury might infer that the arresting officers were unsure of defendant's identity, sought from officer Phillips clarification on this point. It was at this point that the impermissible answer was given. The jury already had before it, however, information from which it could infer that defendant gave no information at the time of his arrest. In fact this is the only logical inference that the jury could have drawn from the fact that the officers referred to Savchuck as John Doe at the time he was in custody. The prosecutor's questioning of the police officer at the time this answer was given did not focus on the defendants being advised of their rights and defendant Savchuck's subsequent...