People v. Purofoy
| Decision Date | 29 June 1982 |
| Docket Number | Docket Nos. 52122,53292 |
| Citation | 116 Mich.App. 471,323 N.W.2d 446 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Malcolm C. PUROFOY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hardy Alison WALKER, Defendant-Appellant. 116 Mich.App. 471, 323 N.W.2d 446 |
| Court | Court of Appeal of Michigan — District of US |
[116 MICHAPP 474] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Carol Schmidt and Robert J. Sheiko, Asst. Pros. Attys., for the People.
Lynn Chard, Asst. State Appellate Defender, for defendant Purofoy on appeal.
Douglas Hamel and Frank Singer, Detroit, for defendant-appellant Walker.
Before MAHER, P. J., and BEASLEY and MARUTIAK, * JJ.
On May 21, 1980, defendants, Malcolm C. Purofoy and Hardy Alison Walker, were convicted by a jury of armed robbery, in violation of M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and possession of a firearm in the commission of a felony, in violation of M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant Purofoy was sentenced to not less than seven nor more than 15 years in prison on the armed robbery count. Defendant Walker was sentenced to not less than six nor more than 15 years in prison on the armed robbery count. Both defendants were sentenced[116 MICHAPP 475] to two years on the felony firearm counts, to run consecutively with the armed robbery sentences. Defendants appeal as of right.
The record reveals that on the evening of March 8, 1980, the complainant, while in the hallway of his Southgate apartment, was approached by two black males, one of whom brandished a gun, the other a knife. As a result of the individual with the knife inquiring if he had any money, complainant gave him his wallet. Immediately after the men fled from the apartment complex, complainant telephoned the Southgate Police, describing the age, size, gender and attire of his assailants.
A Wyandotte Police Officer, Charles Brown, testified that while he and his partner were on patrol duty on the evening of March 8, 1980, they received a radio broadcast from the Southgate Police which requested all police vehicles in the vicinity to be on the lookout for two black males who had robbed a man at the Village Town Apartments in Southgate. The males were described as respectively wearing a tan cap and a leather hood.
Upon driving to the general area of the armed robbery, the officers observed a tan vehicle which contained two black males, one of whom was wearing a tan cap. The occupants of this vehicle appeared startled at the sight of the police vehicle, whereupon the officers, while following the tan vehicle, requested on the police radio further information concerning the robbery. The additional description related that the individual with the tan cap was wearing a denim jacket, the other man was wearing a brown leather hood, both men were in their twenties, and that one was taller than the other.
After noticing that the descriptions coincided with the two men in the tan vehicle, Officer Brown [116 MICHAPP 476] and his partner stopped the automobile, asking the men to exit therefrom. A flashlight search of the automobile did not unearth any weapons or fruits of the alleged robbery.
The automobile in which defendants were occupants was turned over to Officer Larry Mylock of the Southgate Police. At the direction of the Southgate Police, Officer Brown and his partner transported the men to the scene of the robbery where complainant identified the two men as his assailants, while they were handcuffed and in the back seat of the patrol car.
The first issue that we address is one raised by both defendants and concerns the stopping of defendants' automobile without a warrant. Defendants claim that the Wyandotte Police officers lacked probable cause to stop and arrest them because defendants were not apprehended at the scene of the offense, their behavior was not suspicious, and the flashlight search of their automobile did not reveal any weapons or evidence of the crime.
The trial court ruled that the police officers had probable cause to stop the vehicle and arrest defendants based on the nearness of the location of the robbery to the area in which the police observed defendants, Officer Brown's testimony that the street on which defendants' automobile was travelling was a logical exit road from the location of the robbery, the startled expressions of defendants upon observing the police vehicle, and the officers' observations of defendants' clothing.
In People v. Whalen, 1 the Supreme Court delineated the standard applicable to the stopping, searching and seizing of motor vehicles and their contents:
[116 MICHAPP 477] "1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.
Applying this standard, we find that the Wyandotte police officers' stop of defendants' vehicle was reasonable and justified under the circumstances. The general description of the assailants coincided with the occupants of the automobile.
M.C.L. Sec. 764.15; M.S.A. Sec. 28.874 governs arrests without a warrant and provides as follows:
In reviewing defendants' claim that the police [116 MICHAPP 478] officers lacked probable cause to make the arrest without a warrant, it is the function of this Court to ascertain whether the facts available to the officers at the moment of the arrest would justify a fair minded person of average judgment and intelligence in believing that the suspected persons had committed a felony. 2
In the within matter, the Wyandotte Police officers received an authorized police bulletin that a felony had been committed. This communication, when considered in conjunction with defendants' similarity to the description transmitted over the radio, the proximity of defendants' vehicle to the scene of the robbery and defendants' reactions upon observing the police vehicle, justified the arrest of defendants.
Once a trial judge has found that the prosecution has satisfied the burden of establishing that an arrest without a warrant is supported by probable cause, his ruling will be reversed only if it constitutes an abuse of discretion. 3 The trial judge herein did not abuse his discretion in determining that the officers had probable cause.
Defendants jointly contend that the complainants, on-the-scene identification denied them due process, claiming that, once arrested, they had the right to counsel and to all required identification procedures. Alternatively, defendants assert that, even if they were not entitled to counsel at the on-the-scene identification, the procedure was unduly suggestive and denied defendants due process of law stemming from the identification made while they were handcuffed in the back seat of the patrol car. Furthermore, they allege that this [116 MICHAPP 479] identification was an essential component of the affidavit in support of the search warrant of defendants' automobile, which resulted in the discovery of a gun, knife and the victim's wallet.
After a Wade 4 hearing on May 14, 1980, the trial court found that the return of defendants to the scene of the robbery for identification did not violate defendants' right to counsel and, therefore, he denied the motion to suppress the identification and the fruits of the search.
In People v. Anderson, 5 the Supreme Court enumerated three exceptions to the requirement of counsel at pre-indictment custodial identification procedures:
"Among the recognized justifications for absence of counsel at eyewitness identification procedures are: (1) 'intelligent' waiver of counsel by the accused, see e.g., People v Shipp, 21 Mich App 415 (1970); (2) emergency situations requiring immediate identification, see e.g., People v Adams, 19 Mich App 131, 133 (1969); (3) prompt, 'on-the-scene' corporeal identifications within minutes of the crime, see e.g., Russell v United States, 133 US App DC 77; 408 F2d 1280 (1969)."
In the matter at bar, defendants, subsequent to their arrest, were immediately returned to the robbery scene for identification. We addressed this issue in People v. Tucker: 6
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