People v. Marland

• Decision Date: 19 September 1984
• Docket Number: 66547,Docket Nos. 65706
• Citation: 135 Mich.App. 297,355 N.W.2d 378
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jonston Steven MARLAND, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard LANGE, Defendant-Appellant. 135 Mich.App. 297, 355 N.W.2d 378
• Court: Court of Appeal of Michigan — District of US

Page 378

355 N.W.2d 378

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jonston Steven MARLAND, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard LANGE, Defendant-Appellant.

Docket Nos. 65706, 66547.

135 Mich.App. 297, 355 N.W.2d 378

Court of Appeals of Michigan.

Submitted June 14, 1983.

Decided June 18, 1984.

Rehearing Denied Aug. 2, 1984.

Released for Publication Sept. 19, 1984.

[135 MICHAPP 299] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., and Donald A. Kuebler, Chief Asst. Pros. Atty., for the people.

Bruce Crossman, Fenton, for defendant-appellant Marland on appeal.

Steven W. Moulton, Flint, for defendant-appellant Lange on appeal.

Before KELLY, P.J., and SHEPHERD and COOPER ^*, JJ.

COOPER, Judge.

Defendants were jointly tried and jury-convicted of breaking and entering an occupied dwelling with intent to commit a larceny, M.C.L. 750.110; M.S.A. 28.305. Both defendants received sentences of 10 to 15 years in prison and [135 MICHAPP 300] both defendants appeal their convictions as of right.

The undisputed facts are as follows. Shortly after midnight, while doing a safety check in the parking lot of a 7-11 party store officer Martin Brock observed a Buick parked away from the party store. He noticed the Buick's brake lights flashing on and off and the driver looking over his shoulder several times. Officer Brock stopped and briefly questioned defendant Lange, the driver, who said he was waiting there for "a couple of chicks". During this time the brake lights flashed on and off several more times and Mr. Lange acted very nervous according to officer Brock's testimony. Brock told him to stay where he was while he drove around the immediate area. The officer saw a second person, later identified as defendant Marland, behind the building. When the officer approached defendant Marland, Marland tried to run away with Brock in pursuit. As Marland approached the Buick, defendant Lange waved him away. Defendant Marland then entered the party store but came back out when officer Brock motioned for him to exit from the party store. Officer Brock asked defendant Marland if he knew the man in the Buick and Marland replied in the affirmative. Officer Brock then placed Marland in the back seat of his police car and radioed for assistance from Grand Blanc Township police officers so that he could check what was going on at that particular time. He also turned on a tape recorder sitting on the front seat of his cruiser. Officer Brock returned to defendant Lange who was still waiting in the Buick. Officer Brock asked Lange if he knew the man who had tried to get into the Buick. Lange responded that he had never seen him before in his life. Brock then ordered [135 MICHAPP 301] Lange out of the car, patted him down and placed him in the back seat of the police car with Marland.

While seated in the police cruiser, the defendants had a conversation which was recorded by the tape recorder in the front seat. Both defendants made incriminating statements while sitting in the cruiser. Neither defendant was told of the existence of the tape recorder or that it was turned on. However, a transcript of the recording shows that the defendants commented that the "police radio could be hooked up". The trial court denied defendants' motion to quash the tape recording, on the grounds that there was no Miranda ¹ violation because there had been no interrogation. The jury was allowed to have copies of the edited transcript of the tape recording.

The tape recorder had been turned on prior to the first defendant's being placed in the patrol car. While the defendants were talking in the patrol car, a police officer was positioned behind the cruiser, but not within hearing distance of the defendants. Officer Brock in the meantime returned to the area where he had first seen defendant Marland, and followed a trial of footprints to a nearby house. He found that the back porch window had been smashed out and it appeared as though someone had attempted to kick out the storm door because there were footprints on the door. Also a window on the front porch had been broken out. Defendant Marland's tennis shoes had broken glass imbedded in them. Officer Brock testified that the tape recorder "was laying in plain view on the front seat".

Both defendants on appeal claim that the transcript[135 MICHAPP 302] of the defendants' conversation was erroneously admitted at trial because it was the fruit of an illegal arrest. Generally, a defendant's failure to object to the admission of evidence at trial precludes appellate review. People v. Paul Williams, 118 Mich.App. 117, 325 N.W.2d 4 (1982). However, despite the fact that neither defense counsel raised the issue of the legality of the warrantless arrest at trial, this Court's review is not precluded, because the courts have recognized an exception to this rule when a constitutional question is involved. People v. Crawl, 401 Mich. 1, 31, 257 N.W.2d 86 (1977).

This Court has established a two-part standard of review:

"Where a defendant raises a constitutional question for the first time on appeal, we must ask two questions: (1) was the evidence decisive, and (2) was the evidence erroneously admitted into evidence." People v. Woodard, 111 Mich.App. 528, 531, 314 N.W.2d 680 (1981), quoting People v. Bukoski, 41 Mich.App. 498, 501, 200 N.W.2d 373 (1972).

This Court answers in the affirmative regarding the former question for the reason that the transcript of the recording was provided to the jury and clearly incriminated the defendants. This Court answers in the negative regarding the latter question for the reason that the action of officer Brock was reasonable. People v. Martin, 99 Mich.App. 570, 297 N.W.2d 718 (1980); People v. Bloyd, 96 Mich.App. 264, 292 N.W.2d 546 (1980); People v. Carter, 96 Mich.App. 694, 293 N.W.2d 681 (1980); People v. Grimmett, 97 Mich.App. 212, 293 N.W.2d 768 (1980). Addressing the matter as events unfolded, this Court observes that probable cause to arrest is not necessary for an investigative stop. It [135 MICHAPP 303] is necessary that the officer have a reasonable belief that criminal activity may be occurring. People v. Johnson, 81 Mich.App. 70, 264 N.W.2d 125 (1978); People v. Lillis, 64 Mich.App. 64, 235 N.W.2d 65 (1975). Officer Brock's action in stopping both defendants initially and briefly questioning them was a proper investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Because of the continued blinking of the brake lights, defendant Lange's continually looking over his shoulder, and his nervous response, Officer Brock was justified in his instruction that defendant Lange remain in his Buick while the officer drove around the immediate premises. Upon spotting defendant Marland behind the store and receiving a response that he was urinating, the officer was justified in pursuing defendant Marland when he thereupon attempted to run away and was waved off as he sought to enter defendant Lange's Buick. The contradictory answers by defendant Lange that he did not know Marland and Marland's response that he did know Lange justified the officer's continued investigation by having placed both defendants in the back of his patrol car. The removal to the patrol car was reasonable in that the lone officer now was dealing with two persons without any assistance. When assistance arrived, officer Brock immediately followed the footprints, apparently left by defendant Marland in that they matched the footwear Marland was wearing, which led to a nearby residence where indications of a breaking and entering existed. The situation clearly evolved from a reasonable suspicion that criminal activity had been taking place to justify the initial stop to probable cause that an offense was committed and that the suspect committed it based on the evidence of the breaking and entering. People v. Lillis, 64 Mich.App. 64, 235 [135 MICHAPP 304] N.W.2d 65 (1975); People v. Langston, 57 Mich.App. 666, 226 N.W.2d 686 (1975); People v. Murphy, 28 Mich.App. 150, 184 N.W.2d 256 (1970).

We recognize at the outset that defendants were not placed under formal arrest when they were detained in the back seat of the patrol car. Nevertheless, we hold that defendants were "seized" within the meaning of the Fourth Amendment since they would have been prevented from leaving the area had they attempted to do so. Michigan v. Summers, 452 U.S. 692, 696, 101 S.Ct. 2587, 2590, 69 L.Ed.2d 340 (1981); Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824 (1979); People v. Freeman, 413 Mich. 492, 495, 320 N.W.2d 878 (1982). The case of People v. Bloyd, 416 Mich. 538, 331 N.W.2d 447 (1982), provides a pertinent analysis regarding the issue of what is the permissible scope of a detention based on less than probable cause. The Bloyd Court cites Dunaway v. New York as follows:

"[T]he court held that a detention for custodial interrogation, a procedure that was indistinguishable from a traditional arrest, must be supported by probable cause." 416 Mich. 545, 331 N.W.2d 447.

In Dunaway the police had driven the defendant to police headquarters in a patrol car and placed him in an interrogation room. In both the Bloyd situation and Dunaway, the Bloyd Court observed that the defendant was not questioned briefly where he was found. In Bloyd, the police observed pornographic material in defendant's car and proceeded to place the defendant in their patrol car while they drove to two different locations trying to determine if establishments which sold pornographic material had been broken into.

Next the Bloyd Court analyzed the case of Michigan[135 MICHAPP 305] v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Quoting Terry v. Ohio, supra, the Summers Court stated as follows:

" '[S]ome seizures admittedly covered by the Fourth Amendment constitute such limited...