People v. McIntosh, Docket No. 51227

• Decision Date: 06 October 1981
• Docket Number: Docket No. 51227
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark W. McINTOSH, Defendant-Appellant. 110 Mich.App. 139, 312 N.W.2d 415
• Court: Court of Appeal of Michigan — District of US

Page 415

312 N.W.2d 415

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark W. McINTOSH, Defendant-Appellant.

Docket No. 51227.

110 Mich.App. 139, 312 N.W.2d 415

Court of Appeals of Michigan.

Oct. 6, 1981.

Released for Publication Nov. 18, 1981.

[110 MICHAPP 140] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., and Thomas C. Nelson, Asst. Atty. Gen., for the People.

William A. Benz, Adrian, for defendant-appellant.

Before DANHOF, C. J., and KELLY and SULLIVAN, JJ.

KELLY, Judge.

Defendant, Mark W. McIntosh, appeals as of right from his plea-based conviction for receiving and concealing stolen property, M.C.L. § 750.535, M.S.A. § 28.803. On appeal, defendant contests as error the trial court's denial of his motion to suppress a stolen Nikon camera which was [110 MICHAPP 141] discovered during an allegedly invalid inventory search of defendant's automobile.

The people's appellate brief acknowledges that at the time he pled guilty "(d)efendant specifically reserved his right to challenge on appeal the court's ruling on his motion to suppress". The people acquiesced in this procedure below and do so on appeal. We treat the issue on the merits for the reasons outlined in Judge Cavanagh's majority opinion in People v. Ricky Smith, 85 Mich.App. 32, 270 N.W.2d 697 (1978).

On the night of December 7, 1979, two officers of the Adrian Police Department, acting pursuant to an informant's tip, positioned themselves across the street from a gas station in expectation of an attempted burglary. At approximately 2:30 a. m., the officers observed a light-colored vehicle stop in front of the station, discharge a passenger and proceed to a stop in the St. Stevens Church parking lot located nearby. As the passenger attempted to gain entry to the station, one of the officers arrested him. The second officer (Officer Gary Lindsay) went to the lot where defendant was seated in his car, directed the defendant to get out of the car and placed him under arrest.

Testimony recorded at a hearing on a motion to suppress regarding subsequent events was conflicting. Officer Lindsay testified to having conducted an external search of defendant's car by use of a flashlight. He said that during the search he noticed a multicolored strap protruding from under the front seat of defendant's car. Lindsay could not recall whether he pulled on the strap and thus discovered the camera or looked under the seat to find it.

A third officer, Lawrence Ost, testified that Officer Lindsay did not enter or search defendant's [110 MICHAPP 142] vehicle. Deputy Ost stated that, upon looking into defendant's car, he noticed part of a telephoto lens. Ost then opened the car door, removed the camera and recorded the camera's identification number. Before towing the vehicle to storage, Officer Joseph Nino conducted an inventory search of its contents. Nino did not record the camera's serial number on his inventory sheet but did note the finding of a "Nikon" camera. The camera was left in the vehicle.

The following day, officers compared the camera's serial number against those on a stolen property list maintained by the department. It was discovered that the serial number of the camera found in defendant's car matched a number on the list of items stolen from a local camera shop. Based upon this comparison, an affidavit was prepared and search warrant obtained, which led to seizure of the camera and the subsequent filing of a charge of receiving and concealing stolen property against defendant.

Defendant presents four arguments contending invalidity of the inventory search. Due to their similarity, we consolidate the four allegations into one issue: whether defendant's Fourth Amendment right to be free from unreasonable searches and seizures was violated by the inventory search conducted after his arrest. Before proceeding to the substance of defendant's claim, we note the applicable standard of appellate review: Absent an abuse of discretion, a trial court's decision at a suppression hearing will not be overturned. People v. Erskin, 92 Mich.App. 630, 642, 285 N.W.2d 396 (1979), citing People v. Young, 89 Mich.App. 753, 282 N.W.2d 211 (1979).

In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the Supreme [110 MICHAPP 143] Court upheld the use of routine police inventory searches where such procedures are designed to protect defendants and police from claims of lost or stolen property or personal injury, and where the search is not intended to conceal other investigatory motives. See also Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), and People v. Long, 94 Mich.App. 338, 347, 288 N.W.2d 629 (1979), lv. gtd. 409 Mich. 869 (1980). The authority to conduct such an inventory search was predicated in large part on the normal community caretaking functions performed by police:

"In the interests of public safety and as part of what the Court has called 'community caretaking functions,' Cady v. Dombrowski, supra, at 441 (93 S.Ct. 2523, 47 L.Ed.2d 706), automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge." (Footnote omitted.) Opperman, supra, 428 U.S. 368-369, 96 S.Ct. at 3096-97.

See also People v. Erskin, supra, upholding the inventory search of an automobile abandoned by its driver after being stopped by police, and People v. Boutell, 80 Mich.App. 216, 263 N.W.2d 36 (1977), finding valid an inventory search of a vehicle which produced a pistol found under the driver's seat. In Boutell, the Court held the impoundment and search of defendant's car justified where an [110 MICHAPP 144] accumulation of snow prevented the vehicle from being parked on the side of the road. But see People v. Siegel, 95 Mich.App. 594, 605, 291 N.W.2d 134 (1980), leave to appeal held in abeyance, 409 Mich. 869 (1980), finding improper the inventory search of an automobile found in a private driveway adjacent to a house allegedly owned by the defendant.

The instant case does not fall precisely within any of the precedents hereinbefore noted. Defendant's automobile was not in a position to impede the orderly flow of vehicular traffic, South Dakota v. Opperman, supra, People v. Long, supra, nor was it on property under the defendant's control. People v. Siegel, supra. Nonetheless, we find that the police acted within their authority in impounding the disputed automobile.

The facts herein do not differ substantially from those of United States v. Staller, 616 F.2d...