People v. McFadden

• Decision Date: 23 March 1971
• Docket Number: Docket No. 8390,No. 2,2
• Citation: 188 N.W.2d 141,31 Mich.App. 512
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roscoe McFADDEN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 141

188 N.W.2d 141

31 Mich.App. 512

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roscoe McFADDEN, Defendant-Appellant.

Docket No. 8390.

Court of Appeals of Michigan, Division No. 2.

March 23, 1971.

Released for Publication June 30, 1971.

Leave to Appeal Denied July 19, 1971.

William A. Shaheen, Jr., Shaheen & Shaheen, Flint, for defendant-appellant.

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

Before QUINN, P.J., and McGREGOR and O'HARA, ^* JJ.

O'HARA, Judge.

From his conviction by a jury of carrying a concealed weapon, M.C.L.A. § 750.227 (Stat.Ann.1962 Rev. § 28.424), and possession of drugs, M.C.L.A. § 335.153 (Stat.Ann.1957 Rev. § 18.1123), defendant appeals of right.

Defendant's troubles began acorn size when he was stopped by the police for operating an automobile without headlights. Thereafter they grew to the proportions of a mighty oak. When he was unable to produce a driver's license, he was placed under arrest. Pursuant to the 'normal procedure' employed by Flint's police officers, defendant's person was searched for weapons. The search disclosed a revolver which the police seized. As the officers escorted defendant to the police cruiser, preparatory to taking him to the station, they observed defendant drop a small white envelope. A subsequent analysis disclosed that the envelope contained cocaine and amphetamines.

Defendant may believe, with some justification, that the police received a 'windfall' at his expense. Mayhaps this is true. Such, however, is a sometime peril of carrying an illegal weapon and proscribed narcotics.

An initial allegation by defendant is that the revolver and drugs were products of an illegal search and seizure and, therefore, inadmissible in evidence.

By statutory authority, police officers may arrest one who does not have in his immediate possession a valid operator's license. M.C.L.A. § 257.727 (Stat.Ann.1968 Rev. § 9.2427). Even though the officers may have been aware of defendant's identity and that he was a resident of the neighborhood, whether they released him from custody with written instructions to appear in court, or whether they retained custody pending examination before a magistrate, rested in the officers' discretion. M.C.L.A. § 257.727, Supra.

Having once decided to arrest the defendant, the officers were justified in making a reasonable search, without a warrant, for any concealed weapon which might have been used in resisting arrest or in seeking to escape. Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; Preston v. United States (1964), 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; People v. McDonald (1968), 13 Mich.App. 226, 163 N.W.2d 796; People v. Panknin (1966), 4 Mich.App. 19, 143 N.W.2d 806; People v. Gonzales (1959), 356 Mich. 247, 97 N.W.2d 16. To preclude officers from exercising care for their own safety is to invite recurrence of tragedies which have all too frequently attended arrests for minor traffic violations.

In the case at bar the arrest was a legitimate exercise of authority vested in the officers to take into custody one operating a vehicle without a license. Nowhere is there any serious indication that the arrest was a 'pretext' whereby a random search for evidence could be carried out. See Gonzales, supra.

The retrived narcotics also were properly admitted by the court. '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.' Harris v. United States (1968), 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067. Also, see People v. Beauregard (1970), 21 Mich.App. 224, 175 N.W.2d 301.

Defendant also contends that the statute governing the licensing of concealed weapons is void for vagueness and, therefore, that his conviction pursuant to the statute is fatally defective.

The applicable statute empowers a local board to issue licenses with the following guide lines:

'No such license to carry a pistol concealed on the person or to carry a pistol, whether concealed or otherwise, in any vehicle operated or occupied by the person applying for such license, shall be granted to any person except he be 21 years of age or over, a citizen of the United States, and has resided in this state 6 months or over, and in no event shall such license be issued unless the application for the same is first approved in writing by the township supervisor, when said applicant resides in that part of the county not included within an incorporated city or village, or by the commissioner or chief of police or marshal when the applicant resides in an incorporated city or village having an organized department of police, and unless it appears that the applicant has good reason to fear injury to his person or property, or has other proper reasons, and that he is a suitable person to be so licensed, and in no event to a person who has been convicted of a felony or confined therefor in this state or elsewhere during the 8 year period immediately preceding the date of such application or has been adjudged insane unless he has been restored to sanity and so declared by court order.' M.C.L.A. § 28.426 (Stat.Ann.1971 Cum.Supp. § 28.93).

Because of the state's legitimate interest in limiting...