People v. Murphy

• Decision Date: 30 November 1970
• Docket Number: 7767,No. 1,Docket Nos. 7006,1
• Citation: 28 Mich.App. 150,184 N.W.2d 256
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William C. MURPHY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James K. GARANT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 256

184 N.W.2d 256

28 Mich.App. 150

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.William C. MURPHY, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.James K. GARANT, Defendant-Appellant.

Docket Nos. 7006, 7767.

Court of Appeals of Michigan, Division No. 1.

Nov. 30, 1970.

Leave to Appeal Denied in No. 7006 Feb. 17, 1971.

Released for Publication March 4, 1971.

Stuart L. Young, Goldsmith, Yaker & Goldsmith, Detroit, for William C. murphy.

Richard M. Lustig, August, Frimet, Goren & Murphy, Detroit, for James K. Garant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., William L. Cahalan, Pros.Atty., Dominick R. Carnovale, Chief, Appellate Div., Leonard Meyers, Asst. Pros.Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and BRONSON and ENGEL^*, JJ.

BRONSON, Judge.

Defendants were charged and convicted by a jury in Recorder's Court for the City of Detroit for possession of burglary tools contrary to M.C.L.A. § 750.116(Stat.Ann.1962 Rev. § 28.311), as well as breaking and entering in violation of M.C.L.A.1970 Cum.Supp. § 750.110(Stat.Ann.1970 Cum.Supp. § 28.305).

The assignments of error raised by each of the defendants on appeal are similar and, therefore, will be considered conjunctively in this opinion.

Defendants initially challenge the introduction into evidence of certain items seized without a warrant by the officers at the time of defendants' arrest.A motion to quash the information and suppress the evidence was made.Defendants argued that the officers lacked probable cause to arrest the defendants and therefore the subsequent search of the automobile occupied by the defendants was illegal.Defendants' motions were denied.Because of their preliminary motions and timely objections at trial, the defendants have properly preserved this issue on appeal.

It is well recognized that, subject to certain restrictions, a warrantless search incident to a lawful arrest is not violative of the Fourth Amendment.An arrest by an officer without a warrant is legal if based upon probable cause, and the existence or absence of probable cause is determined by whether the facts available to the arresting officer at the time of the arrest were sufficient to "warrant a man of reasonable caution in the belief' that an offense had been committed'.Beck v. Ohio(1964), 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142, 148.In the instant case, since the motion to quash the information and suppress the evidence was made after the preliminary examination but before trial, the determination of the issue of probable cause must be based upon testimony presented at that examination.People v. Zeigler(1960), 358 Mich. 355, 359, 100 N.W.2d 456.

The pertinent facts, elicited from the witnesses at the preliminary hearing, established the following: the arresting officers, at approximately 4:15 a.m. on September 5, 1967, responded to a sounding burglar alarm at a drugstore on the near east side of Detroit; upon arrival at the premises, the officers observed a "62 light beige colored Chevrolet with two white male occupants' pull away from the front of the store; a cursory inspection of the drugstore revealed that the electrical wires leading into the building had been severed and that the front door had been 'jimmied, pried, and almost opened' and, the officers began an immediate search of the vicinity for the Chevrolet which had been observed near the drugstore.

At approximately 4:25 a.m., another scout car arrived at the drugstore, inspected the premises briefly and proceeded to search the vicinity.Approximately four blocks from the drugstore, the officers in the second scout car noticed a 'light colored Chevrolet' departing from the corner adjacent to the Lock Lumber Company.At the same instant, the officers 'noticed two boys walk around the corner.'The officers started after the car, but 'stopped, backed up, and grabbed the two boys' because one boy 'took off a pair of gloves and threw them on the ground in the doorway.'

The arresting officers, still searching the vicinity for the 'light beige '62 Chevrolet' were advised by the officers who had apprehended the two boys near the Lock Lumber Company to be on the lookout for a 1962 Chevrolet.The arresting officers, upon observing a 1962 Chevrolet, stopped the automobile.The automobile was occupied by the two defendants and one of the arresting officers recognized defendant Murphy whom he had known for about two years as a result of Murphy having been in the police station on different occasions.

A search of the automobile at the time of the arrest produced the following items which were eventually introduced into evidence at the defendants' trials: a pair of bolt cutters; two 20 gauge shotgun shells; a large screwdriver; a 32 ounce hammer; and, a punch.It was not until later in the morning of September 5 that the breaking and entering of the Lock Lumber Company was confirmed.The defendants stand convicted of the breaking and entering of the Lock Lumber Company and of possession of burglary tools.

The issue of probable cause must be tested by the facts of each case.We conclude that the above-mentioned facts and circumstances were sufficient to warrant a reasonable belief by the officers that the defendants had committed or were committing a felony.The automobile occupied by the defendants matched the description of the automobile which the officers had observed departing from the drugstore upon their arrival to investigate a suspected felony.The arresting officers had been alerted to be on the lookout for a similarly described automobile with respect to an incident at a lumber yard a few blocks away from the drugstore.The proximity of the automobile to the troubled locations when stopped, the officers' recognition of defendant Murphy, as well as the time of day, provided further probative circumstances.Considered in their entirety, these events and circumstances were sufficient to establish probable cause for the defendants' arrest.SeeChambers v. Maroney(1970), 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419;People v. Jones(1968), 12 Mich.App. 369, 163 N.W.2d 22;People v. Wolfe(1967), 5 Mich.App. 543, 147 N.W.2d 447.

Having determined that probable cause existed, and thus the arrest was lawful, the items seized incident to the arrest were properly admitted into evidence.People v. Cosselin(1968), 14 Mich.App. 298, 165 N.W.2d 275;People v. Sansoni(1968), 10 Mich.App. 558, 159 N.W.2d 858;People v. Panknin(1966), 4 Mich.App. 19, 143 N.W.2d 806.

The second question on appeal is addressed to the issue of whether sufficient evidence was presented at the preliminary examination to bind the defendants over for trial on the charge of possession of burglary tools.Defendants filed a timely motion to quash the information as to the possession charge, but their motion was denied.

The statute in question, M.C.L.A. § 750.116(Stat.Ann.1962 Rev. § 28.311), provides:

'Any person who shall knowingly have in his possession any nitroglycerine, or other explosive, thermite, engine, machine, tool or implement, device, chemical or substance, adapted and designed for cutting or burning through, forcing or breaking open any building, room, vault, safe or other depository, in order to steal therefrom any money or other property, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use of employ the same for the purpose aforesaid, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years.'

The essential elements of a crime under this statute were announced in People v. Dorrington(1923), 221 Mich. 571, 574, 191 N.W. 831, 832, where the Court stated:

'Three essential elements are involved in this crime: (1) the tool or implement must be adapted and designed for breaking and entering; (2) it must be in the possession of one who has knowledge that it is adapted and designed for the purpose of breaking and entering; (3) it must be possessed with intent to use or employ the same in breaking and entering.'

On appeal defendants do not argue that the elements of knowledge and intent were absent in the instant case.We agree.The testimony presented at the preliminary examination and the disclosure of facts surrounding the arrest would clearly enable the judge to submit those issues to the jury.SeePeople v. Donovan(1921), 216 Mich. 231, 184 N.W. 863.Defendants argue, however, that the trial court erred in failing to quash the information because the testimony at the preliminary examination did not establish that the seized items were 'adapted and designed for the purpose of breaking and entering.'We disagree.

The term 'adapted and designed' was interpreted in Dorrington, supra, 221 Mich. p. 574, 191 N.W. p. 832:

'The term 'adapted and designed' means something more than mere common household articles capable of use in breaking and entering.To come within the statute, the tools must not only be adapted, that is, capable of being used in breaking and entering, but as well designed, that is, contrived or taken, to be employed for such purpose.'

The testimony adduced at the preliminary examination established that the seized items, although they may have a legitimate purpose, were common items used in burglaries.The prosecution's witness, a 22-year veteran of the police force who had investigated numerous breakings and enterings, testified that the items seized were commonly used in burglaries to remove molding, open safes, pry windows and doors, and cut locks and screens.Defendants' possession of these items, coupled with the circumstances surrounding their arrest, would warrant a jury's finding that the items were contrived and adapted for breaking and entering.People v. Dorrington(1923), 221 Mich. 571, 191 N.W. 831;People v. Jefferson(1910), 161 Mich. 621, 126 N.W. 829;...