People v. Napolitano

• Decision Date: 12 April 1966
• Docket Number: No. 1,No. 67,67,1
• Citation: People v. Napolitano, 141 N.W.2d 356, 2 Mich.App. 601 (Mich. App. 1966)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank Sam NAPOLITANO and Fred Ambrose Kedzierski, Defendants-Appellants. Cal
• Court: Court of Appeal of Michigan

Page 356

141 N.W.2d 356

2 Mich.App. 601

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Frank Sam NAPOLITANO and Fred Ambrose KedzierskiDefendants-Appellants.

Cal. No. 67.

Court of Appeals of Michigan, Division No. 1.

April 12, 1966.

Nick Arvan, Detroit, for appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Lansing, Samuel H. Olsen, Pros.Atty. Wayne County, Detroit, for appellee.

Before LESINSKI, C.J., and QUINN and WATTS, JJ.

WATTS, Judge.

Frank Sam Napolitano and Fred Ambrose Kedzierski were convicted and sentenced for unlawfully possessing or having under their control certain narcotic drugs in violation of P.A.1937, No. 343, as amended(C.L.1948 and C.L.S.1961, §§ 335.51--335.78, inclusive (Stat.Ann.1957 Rev. §§ 18.1071--18.1098, inclusive)) and P.A.1952, No. 266, § 3 (C.L.S.1961, § 335.153 (Stat.Ann.1957 Rev. § 18.1123)).The defendants appeal.

On March 19, 1963, at approximately 10:55 in the evening, 3 Detroit police officers went to an address known as 687 Brainard street, Detroit, in response to a call that something unusual was going on in apartment 208.

Officer Cowan had been a member of the Detroit police department for 9 years, on 7 or 8 different occasions as a police officer, he had come in contact with situations involving narcotic drugs.He testified that the door to the apartment was opened by defendant Napolitano, who was holding a bag of trash in one hand and bending down to pick up a second bag; and that from the open doorway he observed vials in an open container which appeared to contain narcotic drugs.Cowan identified himself as a police officer, placed defendant Napolitano under arrest, walked in and picked up the vials.At that time he saw Fred Kedzierski standing in the apartment.Kedzierski was shirtless and his arm showed signs of fresh needle punctures of the skin.Kedzierski told the officers that he was a 'user'.Napolitano and Kedzierski were placed under arrest; they told police officers that they did not live on the premises.When the officers searched the apartment incident to the arrest, they found narcotic drugs.

The information alleges that the defendants on March 19, 1963, in the city of Detroit, not then and there having a license as required, did them and there unlawfully possess and have under their control certain narcotic drugs, to wit: 83 morphine tablets, 91 codeine tablets, 40 pantopon tablets, and 251 grains of powered opium.

The trial court held the arrest of the defendants lawful and the subsequent search and seizure of narcotic drugs reasonable; denied the defendants' motion to suppress the evidence, quash the information, and discharge the defendants; received in evidence the narcotic drugs seized incident to the arrest; and found the defendants guilty of the alleged offense.

The defendants contend: (1) the search and seizure of the contraband in question was a violation of the fourth amendment of the Constitution of...