People v. Major, Docket Nos. 9666

• Citation: 34 Mich.App. 405,191 N.W.2d 494
• Decision Date: 23 June 1971
• Docket Number: No. 2,Docket Nos. 9666,9674 and 9798,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alton MAJOR et al., Defendants-Appellants
• Court: Court of Appeal of Michigan (US)

Page 494

191 N.W.2d 494

34 Mich.App. 405

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alton MAJOR et al., Defendants-Appellants.

Docket Nos. 9666, 9674 and 9798.

Court of Appeals of Michigan, Division No. 2.

June 23, 1971.

Released for Publication Nov. 19, 1971.

William Goldberg, Flint, for Alton Major.

Edward H. Powers, Pelavin & Pelavin, Flint, for Constance Okoniewski.

Thomas C. Stipes, Flint, for Sandra Magnuson.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., James C. Dillard, Asst. Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and BRONSON and O'HARA, ^* JJ.

HOLBROOK, Presiding Judge.

Defendants were arrested and charged with armed robbery, M.C.L.A. § 750.529 (Stat.Ann.1971 Cum.Supp. § 28.797). They were found guilty by a jury and subsequently sentenced, with Alton Major receiving 35 to 40 years imprisonment, Sandra Magnuson receiving 20 to 25 years imprisonment, and Constance Okoniewski receiving 10 to 15 years imprisonment. From the denial of their motion for a new trial, defendants appeal as of right.

On March 2, 1968, at about 11:50 a.m., The Track, a bar in Flint, was robbed. Sandra Hollingstead an employee of the bar, was alone when a woman entered holding a gun. The woman forced Mrs. Hollingstead into a beer cooler and left with some money.

Another employee of The Track discovered. Mrs. Hollingstead in the cooler. The Flint police were called and arrived at the scene shortly thereafter. One officer questioned the two employees while another officer went next door to the Village Party Shoppe.

An employee of the Party Shop, David Elder, related that at around 10:30 a.m. he saw a gold 1967 Ford, bearing license number VY--1554, parked in a lot near the store facing The Track. This witness observed two females and a dark complexioned man in the car. He noticed the car and remembered the license number because he was afraid these people might be potential robbers of the Party Store. Elder also indicated, however, that no positive identification could be made of the car's occupants.

The complainant, Mrs. Hollingstead, described her assailant as a white female, around 29 years of age, five feet tall, 115 pounds, and wearing a head covering. Also, Mrs. Hollingstead said that her assailant was wearing gloves and sunglasses, and had a ruddy complexion.

Sergeant Ernest Harbin, the officer in charge of this case, talked with Robert Egan, the bar's owner. This officer concluded that the robber was familiar with the bar's layout because she knew where to get the keys to the liquor cabinet, where the money was kept, and also where to turn off the lights to the bar.

Sergeant Harbin inquired of Mr. Egan whether any of the bar's employees fitted the description of the occupants of the car observed by the Party Store employee. Mr. Egan gave the officer the names of Connie Okoniewski and Alton Major who were former employees and allegedly fitted the description.

Upon receiving information as to Alton Major's address, officer Harbin sent it out over the police radio along with the robber's description. He also requested a registration check on the car.

Officer William Austin heard the radio broadcast and went to Alton Major's address. He there observed a 1967 Ford bearing the license number of the car in question. This information was relayed to officer Harbin who left the scene of the crime and went to Alton Major's address.

Officer Harbin, along with others, knocked on the door and Sandra Magnuson let the police in. They observed Constance Okoniewski, and based on the description given by Sandra Hollingstead, an arrest was made.

A noise was heard in the basement of the house and, upon investigation, Alton Major was found emerging from a crawl space. He was also placed under arrest. The officer then conducted a search.

Prior to trial, defendants made a motion to suppress the evidence found during the search. A Walker-type ¹ hearing was held on May 8, 1968, in which the judge found that the arrest was made with probable cause and that the search was made incident to such lawful arrest and was legal. The Court also ruled, however, that it would not permit testimony at trial as to the identification of defendants in a pretrial lineup.

The defendants raise four issues which we restate and consider in order.

I

Whether the trial court erred in finding that the police had probable cause to arrest defendants?

M.C.L.A. § 764.15(c) (Stat.Ann.1954 Rev. § 28.874(c)) provides:

'Any peace officer may, without a warrant, arrest a person--

'(c) When a felony in fact has been committed and he has reasonable cause to believe that such person has committed it.'

The test, under this statute, as to whether an arrest is valid is to determine if the facts before the police at the time of the arrest would warrant a reasonable belief that the person arrested has committed the felony. It has further been required that the arresting officer actually 'believe' rather than merely 'suspect' that the person arrested has committed the felony. Chambers v. Maroney (1970), 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; People v. Kuntze (1963), 371 Mich. 419, 124 N.W.2d 269; People v. Harper (1962), 365 Mich. 494, 113 N.W.2d 808; People v. Herrera (1969), 19 Mich.App. 216, 172 N.W.2d 529; People v. Jones (1968), 12 Mich.App. 369, 163 N.W.2d 22; People v. Pantoja (1970), 28 Mich.App. 681, 184 N.W.2d 762; People v. Sansoni (1968), 10 Mich.App. 558, 159 N.W.2d 858; generally see, 5 Am.Jur.2d Arrest, §§ 22--25, pp 711--716; 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 220, pp. 243--250.

In the instant case, the facts confronting the officers at the time the arrest was made were (1) that an armed robbery of a bar had been committed by a woman; (2) a description of that woman; (3) the license number of an automobile which was occupied by two women (one a redhead) and a man and was outside the bar shortly before the bar was robbed; (4) that the auto in question was parked outside the residence of a former employee of the bar; (5) that facts indicated the robbery was an inside job; and (6) that when they entered the residence two women (one a redhead) were seen, one matching the description of the woman robber.

The trial judge, faced with these facts, ruled that the officers had reasonable cause to believe that the persons within Alton Major's residence had committed the robbery. He affirmed this ruling in his denial of defendants' motion for a new trial. These facts justify his decision and we find no reversible error as to this first issue.

II

Whether the trial judge erred in ruling that the search and seizure of certain evidence in this case was proper?

In ruling on this issue the trial judge stated:

'In Harris v. United States (1968), 390 U.S. 234 (88 S.Ct. 992, 19 L.Ed.2d 1067) the United States Supreme Court noted that:

"It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.'

'The Michigan Appellate Courts have upheld this doctrine. People v. Tisi (1969), 16 Mich.App. 316 (167 N.W.2d 795).

'The articles found within plain view by the officers upon entering the home and the article found in the crawl space after observation of the Defendant Major are within this category.'

The defendants' allegation of error does not merit a reversal for two reasons. First, because we have ruled the arrests were valid, the officers were entitled to conduct a limited search of the area within defendants' immediate control for implements by which the crime was committed and for the fruits and evidence of the crime, as well as for weapons. People v. Nelson (1970), 29 Mich.App. 251, 185 N.W.2d 183; People v. Herrera, Supra; People v. Panknin (1966), 4 Mich.App. 19, 143 N.W.2d 806; Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. A review of the record transcribed from the Walker hearing indicates no detailed search other than in the area within the defendants' control and therefore, for this reason, the evidence was admissible. Second, from the officers' testimony at the Walker hearing, it appears that the evidence seized was within the 'plain view' of the officers. Sergeant Ernest Harbin testified that shortly after he entered the home he noticed a paper sack which contained clothes matching the description of the ones used in the robbery. Later, when the contents of the sack were further explored, checks stolen from The Track Bar were discovered.

Officer Wilford Good testified that he heard a noise and went into the basement. He there heard another noise in the basement of an adjoining residence. Alton Major was then observed emerging from a crawl space in that basement brushing dirt from his pant legs. Officer Good observed a gym bag in the crawl space and upon investigation discovered money, checks taken from the bar, and a gun.

The law is clear that a police officer may seize objects within 'plain view.' People v. Surles (1970), 29 Mich.App. 132, 185 N.W.2d 126; People v. Burton (1970), 28 Mich.App. 253, 184 N.W.2d 336. See also, Harris v. United States (1968), 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; People v. Kuntze, Supra. Since the evidence seized in the instant case was apparently within the plain view of the police officers, it was not error to admit it.

III

Whether the scope of the search of defendant's residence was illegal as too broad?

In ruling on this issue the trial court said:

'Although the more recent case of Chimel v. California (1969), 395 U.S. 752 (89 S.Ct. 2034, 23 L.Ed.2d 685), does, in fact limit the scope of searches incident to arrests where there is no search warrant, the Michigan Court of Appeals in People v. Herrera (1969), 19 Mich.App. 216 (...