People v. McDonald

• Court: Court of Appeal of Michigan
• Writing for the Court: LEVIN; Douglas
• Citation: People v. McDonald, 163 N.W.2d 796, 13 Mich.App. 226 (Mich. App. 1968)
• Decision Date: 12 September 1968
• Docket Number: No. 2,Docket No. 2890,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter McDONALD, Defendant-Appellant

Page 796

163 N.W.2d 796

13 Mich.App. 226

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter McDONALD, Defendant-Appellant.

Docket No. 2890.

Court of Appeals of Michigan, Division No. 2.

Sept. 12, 1968.

Leave to Appeal Denied Dec. 19, 1968.

Released for Publication, Jan. 24, 1969.

Major Bird, Russell & Bird, Adrian, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Harvey A. Koselka, Pros. Atty., Lenawee County, Adrian, for plaintiff-appellee.

Before KAVANAGH, P.J., and LEVIN and SULLIVAN ^*, JJ.

LEVIN, Judge.

The defendant was convicted of breaking and entering in the nighttime. ¹ After commission of the offense for which defendant was convicted, the legislature eliminated the statutory distinction between nighttime and daytime breaking and entering, thereupon repealing the statutory provision making Nighttime breaking and entering a crime. Defendant claims that prosecutions for offenses committed under the nighttime provision before such 'repeal' were barred by the legislative action. He also asserts the trial judge erred in denying his motion to suppress evidence obtained by an allegedlly unconstitutional search and seizure, and, finally, that there was insufficient evidence to support the jury's guilty verdict. We find no error.

I.

In People v. Lowell (1930), 250 Mich. 349, 356, 230 N.W. 202, 204, the Michigan Supreme Court held that in the absence of a savings clause, the effect of an amendment of an existing statutory provision 'to read as follows' was 'to strike the former section from the law, obliterate it entirely, and substitute the new section in its place.' The Court held the statutory amendment before it repealed the criminal law provision which it replaced, and there could be no prosecutions under the repealed provision. The Court suggested that if its ruling was not in accord with legislative intent (p. 361, 230 N.W. p. 206): 'a similar situation may be avoided in the future by the enactment of a general savings statute.'

The legislature responded at its next session by enacting P.A.1931, No. 25 (C.L.1948, § 8.4a, Stat.Ann.1961 Rev. § 2.214), with immediate effect, providing that the repeal of any statute shall not release any penalty incurred thereunder, 'unless the repealing act shall so expressly provide, and such (repealed) statute and part thereof shall be treated as still remaining in force for the purpose of instituting or sustaining any proper action or prosecution for the enforcement of such penalty.'

P.A.1964, No. 133 (amending C.L.1948, § 750.110, Stat.Ann.1968 Cum.Supp. § 28.305), eliminating the distinction between nighttime and daytime breaking and entering, does not expressly relinquish any penalty incurred under the nighttime provision and, therefore, the 1964 act does not defeat prosecution of those who, before the 1964 act's effectiveness, violated the former provision by breaking and entering in the nighttime.

II.

Officers of the Michigan State police testified that on August 15, 1964, while patrolling at 4:45 a.m. on the Tecumseh-Clinton road, north of the city of Tecumseh, Michigan, they first observed mud tracks made by the tires on defendant's car, which showed the car had emerged from the muddy parking lot of Jerry's market, and then observed the defendant's car weaving from one side of the road to another at 25--30 miles per hour. Thinking defendant driver might be intoxicated, they signalled him to stop. He ignored that order and, with the State police in pursuit, sped up to a speed in excess of 60 miles per hour, crossed US--12 against a red light and shortly thereafter collided with a parked automobile. Upon impact, both doors of the defendant's 2-door automobile and its trunk door sprang open, and the defendant fell out of the car together with quantities of cigarettes and bottles containing alcoholic beverages. There were broken bottles both within the car and the trunk as well as on the ground. Liquor was spilling out from both the car and the trunk. The defendant was thereupon arrested for violation of the motor vehicle code, and, since he appeared to be injured, he was sent by ambulance to a nearby hospital.

From outside the car officers observed some 12 to 15 cases of liquor, a large number of cigarette cartons and individual cigarette packages and liquor bottles. When the officers radioed for an ambulance they also put out a bulletin inquiring whether there had been any reported breaking and entering in the area which would account for the liquor and cigarettes in defendant's car, and requested the dispatch of a local police officer to stand by defendant's wrecked automobile. After the local police officer arrived, the State policemen, having loaded their car with some of the liquor, headed for the hospital to inquire concerning the defendant's condition. On the way, they stopped at Jerry's market and found a front window of the market had been broken, leaving an area large enough for a man to enter. At the hospital it appeared the defendant was not seriously injured and he was taken by the police officers to a place of incarceration. They then returned to the scene of the collision. In the meantime, the owner of Jerry's market had been called; he reported shortly after 5:30 a.m. that his place of business had, indeed, been broken into and all his cigarettes and a large portion of his liquor taken. The State policemen then made an inventory and took possession of all the liquor and cigarettes at the scene of the collision.

In our consideration of plaintiff's claim that the stolen goods seized by the police should have been excluded because obtained in violation of the Fourth Amendment, as applied to the States through the Fourteenth Amendment, of the United States Constitution, ² and of the applicable Michigan constitutional provision, ³ we have considered decisions of the United States Supreme Court as well as those of our own Supreme Court because, no doubt, despite the forebodings expressed by the dissenters in Cooper v. California (1967), 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, rehearing denied 386 U.S. 988, 87 S.Ct. 1283, 18 L.Ed.2d 243), Federal standards govern here, and not a 'watered-down version' of the Fourth Amendment. ⁴

The constitutional protection is against unreasonable searches and seizures, against general searches, and in particular against unreasonable invasions of the individual's privacy.

It is contemplated that ordinarily search and seizure will follow the issuance of a proper search warrant upon a showing of probable cause. However, the Constitutions do not prohibit all warrantless searches. Where a warrant has not been obtained, the validity of the search depends on the law's appraisal of the reasonableness of the search, only unreasonable warrantless searches and seizures being barred. Searches, incident to a lawful arrest, ⁵ or following a hot pursuit ⁶ for instruments used in the commission of crime, its fruits, contraband and means of escape, have been held to be reasonable. But that does not mean every search incident to an arrest or following a hot pursuit is justified.

In People v. Gonzales (1959), 356 Mich. 247, ⁷ 97 N.W.2d 16, the defendant had been lawfully arrested for violation of the motor vehicle code, driving with one headlight burning. The Court stated that a lawful arrest does not automatically render constitutional any contemporaneous search and seizure, the constitutional test being whether (p. 253, 97 N.W.2d p. 19) 'under all the circumstances thesearch is 'unreasonable." In Gonzales, a search of the car following arrest revealed a concealed pistol. Appraising the search's reasonableness, the Court was satisfied there was no intention of incarcerating the driver because of the motor vehicle code violation, and that (p. 255, 97 N.W.2d p. 20):

'There were no fruits of the traffic offense to search for, nor any need to search for the means by which it had been committed. And since no further detention was contemplated, there was no need to search for weapons or other means of possible escape from custody.'

The defendant argues Gonzales applies here, since he was stopped because of a possible motor vehicle code violation, not because of any belief a felony had been committed. He asserts there was no justification for a search, there being no fruits of the driving offense for which to search. Defendant's argument presupposes there was a search. However, as in People v. Kuntze (1963), 371 Mich. 419, 425, 124 N.W.2d 269, here the State police officers perceived without entrance or search the presence of the large quantities of cigarettes and liquor in and around the defendant's car.

In Harris v. United States (1968), 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069, evidence plainly visible and not discovered as the result of a search was held admissible:

'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.' ⁸

Here, there was no intrusion upon the defendant's privacy. That he had been transporting large quantities of both liquor and cigarettes would have been apparent to anyone who looked through the windows or opened doors and trunk of the defendant's car. It was unnecessary for the police to invade the defendant's privacy in order to discover there might be more to the matter at hand than an erratic driving pattern on the part of an elderly man in the early hours of the morning. We emphasize the absence of any invasion of defendant's privacy before discovery of the evidence sought to be suppressed because the gist of the protection afforded by the Fourth Amendment, as it has been interpreted and applied by the United States Supreme Court, is protection of the individual from unreasonable invasion of privacy. ⁹

Although the defendant was not originally booked for breaking and...