People v. Pitts

• Decision Date: 24 May 1972
• Docket Number: No. 2,Docket No. 9339,2
• Citation: 199 N.W.2d 271,40 Mich.App. 567
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nelson PITTS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 271

199 N.W.2d 271

40 Mich.App. 567

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nelson PITTS, Defendant-Appellant.

Docket No. 9339.

Court of Appeals of Michigan, Division No. 2.

May 24, 1972.

Rehearing Denied June 29, 1972.

Released for Publication July 27, 1972.

Leave to Appeal Denied Nov. 2, 1972.

John J. Miller, Nicholson & Miller, Warren, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Stephen F. Osinski, Asst. Pros. Atty., for plaintiff-appellee.

Before LEVIN, P.J., and BRONSON and VanVALKENBURG, ^* JJ.

BRONSON, Judge.

Defendant was convicted by a judge in the Macomb County Circuit Court of unlawfully possessing a narcotic drug in violation of M.C.L.A. § 335.153; M.S.A. § 18.1123. He was sentenced to a prison term of from two to 10 years. He appeals as of right.

This case involves the right of the police to search an automobile based on a furtive gesture. The facts follow. On September 18, 1969, Michigan State Police troopers Curtis Fonger and Steven Miller were patrolling the Van Dyke-29 Mile Road area in Washington Township. At approximately 8:30 p.m., they observed the car in which defendant was riding come to a stop at the intersection of Jewell Road and 29 Mile Road. The officers stopped behind the car and noticed that it had no license registration light. As a consequence of this observation, the officers stopped the car. Both officers exited their vehicle and approached the car in which the defendant was riding from the rear. Officer Fonger approached the driver's side while Officer Miller went to the passenger side. As he approached the door on defendant's side, Officer Miller shined his flashlight into the car and saw the top of what appeared to be a small prescription bottle in defendant's right hand. From a position approximately one and one-half feet behind the passenger seat near the car window, Officer miller tapped on the window and observed the defendant put his hand between the seat and door and drop the bottle. The officer tapped again and defendant rolled down his window. Officer Miller then asked defendant what he had dropped on the floor and defendant denied dropping anything on the floor. Defendant was then asked to leave the car and acquiesced in Officer Miller's request to search the car. During the ensuing search, the vial was discovered under the passenger seat. Subsequent analysis revealed that the vial contained two packets of heroin.

Defendant raises two issues on appeal. Because we believe that the search which produced the vial of heroin violated defendant's constitutional right against illegal search and seizure, we need not consider these two issues. We reverse.

At the outset we are met by the fact that this issue was not raised below or here on appeal by defendant's attorney. Ordinarily we do not review errors not properly preserved for appeal. However, where the failure to preserve a constitutional right is a mistake of sufficient importance, an appellate court may be obliged to grant a defendant a new trial. While the Constitution does not guarantee that a lawyer will not err in his conduct of a trial, it does guarantee a fair trial. It is thus our duty to protect a defendant's rights as part of our power to control the administration of justice where the trial attorney has failed to do so. The proper standard for granting a new trial is whether the mistake was of such serious importance that, had it been raised below, the defendant might not have been convicted. People v. Degraffenreid, 19 Mich.App. 702, 715--716, 173 N.W.2d 317 (1969). It is clear then that when a right is not properly preserved below, an appellate court must examine the evidence to see if (1) it was erroneously admitted, and (2) if its exclusion would probably have meant acquittal for the defendant. People v. Gunn, 34 Mich.App. 106, 190 N.W.2d 793 (1971). There is no question that, if the heroin had been excluded, defendant would have been acquitted. The issue for our discussion is whether the evidence is admissible.

On the facts before us, we cannot hold that a valid consent to this search was given. To constitute a voluntary consent to a warrantless search, the record should indicate that the accused was advised of his rights, informed that he need not submit to the search, and that the fruits thereof could be used against him. People v. Zeigler, 358 Mich. 355, 100 N.W.2d 456 (1960).

There is no question that the police had a right to stop the car in which defendant was riding for a minor traffic offense. This fact, however, does not render constitutional the search of the vehicle. People v. Gonzales, 356 Mich. 247, 97 N.W.2d 16 (1959). A police officer, may, incident to a lawful arrest for a traffic violation, search for items which are illegal for the accused to possess. To do so, however, the officer must have probable cause to believe that the motorist possesses contraband. Grundstrom v. Beto, 273 F.Supp. 912 (ND Tex.1967); People v. Gonzales, Supra. Stated another way, the officer must act on some fact or circumstance or upon some such information that would create in his mind a reasonable and honest belief that the law was being violated. People v. Goss, 246 Mich. 524, 525--526, 224 N.W. 364 (1929).

'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310; 93 L.Ed. 1879, 1890 (1949).

Officer Miller acted on defendant's 'furtive gesture' and his negative reply to the question put to him. Under the circumstances revealed on this record, we do not believe defendant's actions were sufficient to create probable cause for the search.

The question of when a furtive gesture creates probable cause to justify a warrantless search is one that has been considered several times by our courts. In People v. Evans, 3 Mich.App. 1, 141 N.W.2d 668 (1966), the defendant was discovered at 4:45 a.m. crouched behind a trash can after the police had observed him walking rapidly. He was found holding a package containing liquor. The Court held that the search was reasonable. In doing so, the Court reviewed the applicable cases and stated, at pp. 4--7,141 N.W.2d at p. 669:

'The most recent case is In re Winkle (1964), 372 Mich. 292, 125 N.W.2d 875, which upheld the search of an automobile and the seizure of burglary tools contained therein by State police officers, who stopped the car for a traffic violation at 2:00 a.m. The search was made after the officers were informed that the car was not registered in the name of either occupant, the occupants were from Indiana, the driver displayed a Florida driver's license, and they were told radically conflicting stories by each of the two occupants as to their residence, destination, the purpose of their trip, and the length of their intended stay. The court held that all these circumstances justified the search.

'In People v. Kuntze ((1963), 371 Mich. 419, 124 N.W.2d 269), the court held a search and seizure under somewhat different circumstances to be reasonable. In that case, State police troopers had been notified that occupants of a car were 'shining' deer in a field and that a shot had been heard. As the troopers approached the vicinity in which the shot had been heard, they saw the defendant's car turn off into a side road and then go to a nearby farmyard, where the officers knew they had no right to be, and where the headlights on the defendant's car were extinguished. A few hundred feet beyond the side road, on to which the defendants had turned, the officers came upon another car, stopped alongside the highway. The occupants of this car informed the officers that their car was not operating properly and, upon the officers' request, they voluntarily opened the car's trunk. Finding nothing, the officers returned to their patrol car. They then noticed the headlights of defendant's car had been turned on again and that defendant's vehicle was returning to the highway. As defendant's car drove by, the officers noticed it did not have a light illuminating its license plate. They then pulled up alongside the left side of defendant's car and signalled defendants to stop, by turning on the patrol car's oscillating roof light and spotlight, and by sounding its horn. When defendants failed to respond to their signals, the troopers swung in behind the defendant's car and flashed their spotlight into the rear window of defendant's car as a signal to stop. The spotlight revealed to the officers two of the defendants bending forward and moving their shoulders and arms in what seemed to them to be an effort to stuff an object under the front seat on which all the occupants were sitting. The defendant's car then stopped and the patrol car stopped behind it. As the troopers approached the car, one of them noticed what appeared to be blood spots and smears on the shoulders and backs of the white sweat shirts of the two passengers in defendant's car. He thereupon ordered them out of the car. As they got out, the other trooper observed in the beam of his flashlight a leg of a deer protruding from under the front seat. He then ordered the driver out of the car and extracted the hind quarter of a deer. The court held that the blood-spattered appearance of two of the defendants, the defendants' brief detour into the farmyard, their delay in responding to the police officers' signal to stop their car, and the furtive actions of the blood-spattered defendants during the chase together constituted probable cause to believe that the defendants had committed a felony or were in the process of committing a felony.

'The facts in People v. Lewis (1934), 269 Mich. 382, 257 N.W. 843,...