People v. LaGrange, Docket No. 11894

• Citation: 198 N.W.2d 736,40 Mich.App. 342
• Decision Date: 28 April 1972
• Docket Number: No. 2,Docket No. 11894,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Russell LaGRANGE, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 736

198 N.W.2d 736

40 Mich.App. 342

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Russell LaGRANGE, Defendant-Appellant.

Docket No. 11894.

Court of Appeals of Michigan, Division No. 2.

April 28, 1972.

Released for Publication July 10, 1972.

Marshall Barrymore, Port Huron, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Walter W. Turton, Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and GILLIS and QUINN, JJ.

LESINSKI, Chief Judge.

Defendant Russell LaGrange was convicted by a jury of breaking and entering. M.C.L.A. § 750.110; M.S.A. § 28.305. He appeals as of right.

The testimony adduced at trial revealed that the police were called to the home of Mrs. Helen Van Loo late in the evening of October 6, 1970. She reported to the officers responding to the call that she had observed a man with dark hair, dark pants, and a short, light-colored coat open the door of a car parked in the alley across the street from her home, examine the inside of the car, shut the door, and proceed down the alley. She did not see the man take anything from the car.

A short time later Officer Mansell stopped defendant several blocks from Mrs. Van Loo's residence, after noticing that defendant's description matched that which Mrs. Van Loo had given to the police. After calling for assistance, Officer Mansell asked defendant for identification. As defendant reached in his pocket, his jacket came open and Officer Mansell observed a 10-inch screwdriver stuck through defendant's belt. He relieved defendant of the screwdriver, but did not ask him why he had it in his possession.

At this time a second policeman, Officer Korvach, drove up in his patrol car. Officer Mansell handed him defendant's identification and the screwdriver. Noticing that defendant's jacket pocket was bulging, Officer Mansell then reached inside defendant's pocket and removed a piece of paper towel. Officer Mansell examined the paper towel and threw it in the back of Officer Korvach's patrol car. According to the testimony of Officer Mansell, defendant did not attempt to flee from the officers, nor cause them any trouble. Officer Mansell stated that he did not search defendant for dangerous weapons. Additionally he said that he did not expect anything that he took from defendant's pocket to be a dangerous weapon, but rather, removed the paper towel from defendant's pocket because he thought it might have been something taken from the automobile.

Officer Mansell then turned defendant over to Officer Korvach and left the scene. Officer Korvach returned the screwdriver to defendant and released him.

Later that night the officers learned that a breaking and entering had taken place at a bread company. It was determined that entry had been made through a second floor men's lavatory. Officer Korvach recollected the piece of paper toweling that had been seized from defendant earlier in the evening and proceeded to compare that with the end piece of the towel roll in the men's lavatory. He found that the pieces corresponded. Subsequent laboratory tests corroborated this observation. The paper towel was the only evidence produced by the people which established defendant's presence on the scene of the breaking and entering at the bread company.

On appeal defendant argues that the paper towel was the product of an illegal search and seizure in violation of the United States and Michigan Constitutions, U.S.Const., Am. IV; Const. 1963, art. 1, § 11, and, accordingly, it was reversible error for the trial court to allow the paper towel to be admitted into evidence.

At the outset we note that it is well-settled law in this State that a motion to suppress evidence on the basis of an illegal search and seizure must generally be made prior to trial. People v. Ferguson, 376 Mich. 90, 135 N.W.2d 357 (1965).*

In the instant case, defense counsel did not move to suppress the paper towel until 9:30 on the morning of the trial, shortly before the selection of the jury. At 10:30 a.m. when the Voir dire had been completed and the jury had been sworn, the trial judge addressed himself to the motion, pointing out that he did not have 'any facts to even rule on.' When the defense attorney attempted to apprise the court of the circumstances surrounding the search, she was reminded by the trial judge that 'this is no evidentiary showing.' Subsequently, the prosecutor briefly informed the court of the facts concerning the search and his position on the legal aspects of the motion.

The court then ruled as follows:

'The Court: First of all, Mrs. Wright, I shouldn't even hear your motion, it is too late. Motion to suppress is not to come at 9:30 on the morning of trial when we start drawing a jury. I have listened to your motion and I am going to deny your motion to suppress.'

Defendant contends that the trial court, by hearing oral argument on the motion, exercised its discretion in favor of hearing the motion to suppress, despite its lack of timeliness. Therefore, defendant argues, the court should have granted a separate evidentiary hearing on the motion. However, we do not regard the trial court's actions on these facts as indicating a willingness to hear the motion. The trial judge twice pointed out to the defense attorney that the motion had been made at 9:30 a.m. on the day of trial, and emphasized that the brief arguments which he allowed were not to be construed as an evidentiary hearing. The trial court ruled that a motion made at the beginning of the jury selection process is not timely, and, consequently, denied the motion.

However, this Court, in certain cases, can take cognizance of a search and seizure claim that was not timely raised at trial. As was stated in People v. Degraffenreid, 19 Mich.App. 702, 715--716, 173 N.W.2d 317, 324 (1969):

'Even though the right asserted is not one so fully protected that only the defendant can waive it, and even though defense counsel's failure to assert such right does not constitute deprivation of the constitutional right to counsel, if the mistake is of sufficient importance, the courts, trial and appellate, may, and in some cases are obliged to, grant the defendant relief.

'Where the lawyer's mistake is of such serious proportion that it may have been decisive, where but for the lawyer's mistake the defendant might not have been convicted, the court may, despite failure to have preserved the error by timely objection, grant a new trial.'

In People v. Gunn, 34 Mich.App. 106, 109, 190 N.W.2d 793, 794 (1971), the Degraffenreid language was interpreted to dictate the following:

'It is clear, therefore, that we must examine the evidence complained of to see whether or not (1) it was erroneously admitted, and (2) its exclusion would probably have meant acquittal for the defendants.'

Applying these concepts to the facts of this case, we find that the exclusion of the paper towel as evidence would probably have meant acquittal for defendant, since it was the only evidence that linked him to the breaking and entering at the bakery company. Therefore, we turn to a consideration of whether the paper towel was properly admitted into evidence.

Relevant to the inquiry of whether the evidence was properly admitted is the possibility that the search was incident to a valid arrest. As previously emphasized, the police officers at trial did not purport that they had arrested defendant when they first questioned him. In order for a police...