People v. Reeves

• Decision Date: 16 April 1970
• Docket Number: No. 1,Docket No. 7303,1
• Citation: 23 Mich.App. 183,178 N.W.2d 115
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roosevelt REEVES, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 115

178 N.W.2d 115

23 Mich.App. 183

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roosevelt REEVES, Defendant-Appellant.

Docket No. 7303.

Court of Appeals of Michigan, Division No. 1.

April 16, 1970.

Released for Publication July 8, 1970.

Frank J. Potts, Southfield, for defendant-appellant.

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

Before T. M. BURNS, P.J., and HOLBROOK and BRONSON, JJ.

T. M. BURNS, Presiding Judge.

This is an appeal from the Recorder's Court of the City of Detroit, wherein the trial judge, sitting without a jury, found the defendant guilty of possession of narcotic drugs, (cocaine), without a license, M.C.L.A. § 335.153 (Stat.Ann.1957 Rev. § 18.1123), and sentenced him to serve three and one-half years to ten years in prison with a recommendation of a five year maximum.

From the record it appears that at about 12:10 a.m. on January 16, 1967, two Detroit police officers observed the defendant running out of the Carlton Hotel, 555 East Adams, and enter a taxicab which was parked in front of the hotel. The officers testified that they then approached the cab, and saw the defendant remove an envelope from his stocking and throw it on the floor of the cab. One of the officers testified that he then opened the left rear door of the cab and removed the envelope. He further testified that at the time he believed the envelope contained heroin. The defendant was arrested and charged with possession of narcotics, contrary to M.C.L.A. § 335.153 (Stat.Ann.1957 Rev. § 18.1123).

The testimony of the officers with regard to where the narcotics were, when found, is contradicted by the driver of the cab, who testified that the police never entered the cab or searched it, and certainly did not take anything out of it.

The police officers' purported justification for stopping the defendant was that they believed that he had held up the hotel. However, they testified that they never determined whether in fact there had been a hold-up; and, at least one of the officers candidly admitted under cross-examination that he knew there had not been a hold-up.

So in effect, from the record, it appears that all the police observed and acted upon was the fact that the defendant ran from the hotel to the cab. Even though they conceded that they did not really believe that the defendant had robbed the hotel, the trial court allowed the narcotics seized into evidence.

On appeal, the defendant contends that the narcotics were the subject of an unreasonable search and were therefore inadmissible, despite Const.1963, Art. 1, § 11, which allows such unreasonably seized evidence to be admitted, contrary to U.S.Const., Am. 4.

With regard to the constitutionality of Const.1963, Art. 1, § 11 in face of Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, we here adopt the opinion written for this Court by Chief Judge Lesinski in People v. Andrews (1970), 21 Mich.App. 731, 176 N.W.2d 460, and strike as much of Const.1963, Art. 1, § 11 as is contrary to U.S.Const., Am. 4.

Yet here, we may not stop at that, as the Court in Andrews did, because here the people do not concede that the search was unreasonable. We do not consider, however, that the trial court ever determined whether the search was reasonable, as it was the practice of Recorder's Court to rely on Const.1963, Art. 1, § 11.

The conditions required for a warrantless arrest are set forth in M.C.L.A. § 764.15 (Stat.Ann.1954 Rev. § 28.874). Generally, the arresting officer must have probable cause before he can make an arrest without a warrant. A warrantless arrest may not be made merely on 'suspicion without cause', People v. Burt (1883), 51 Mich. 199, 202, 16 N.W. 378; People v. Wolfe (1967), 5 Mich.App. 543, 147 N.W.2d 447; See People v. Panknin (1966), 4 Mich.App. 19, 143 N.W.2d 806. Nor may a warrantless arrest be made on a mere general suspicion that a crime is being committed. People v. Stein (1933), 265 Mich. 610, 251 N.W. 788; Sommerville v. Richards (1877), 37 Mich. 299.

When reviewing arrests made without a warrant, we consider the circumstances as they would have appeared at the time to a reasonable man.

'CL 1948, § 764.15 (Stat Ann 1954 Rev. § 28.874) permits peace officers to make an arrest without a warrant upon reasonable cause to believe that a felony has been committed and that such person has committed it. The existence of probable cause 'depends in every case upon the peculiar circumstances confronting the arresting officer. * * * He makes his determination, and we review it, not as a legal scholar determines the existence of consideration in support of a promise, but as a man of reasonable prudence and caution would determine whether the person arrested has committed a felony.' People v. Harper (1962), 365 Mich. 494, 501, 113 N.W.2d 808, 811.' People v. Bracy (1967), 8 Mich.App. 266, 275, 154 N.W.2d 619, 623.

Defendant contends that the testimony of the police officers does not establish that they had probable cause, that is, a reasonable basis, for making an arrest.

The people contend that under the circumstances, the officers had reasonable cause to believe a felony (possession of narcotics) had been committed, or was being committed, and therefore the subsequent arrest and search were valid.

The people rely upon two cases, People v. Kuntze (1963), 371 Mich. 419, 124 N.W.2d 269 and People v. McDonald (1968), 13 Mich.App. 226, 163 N.W.2d 796 for support of their contention. The people, however, fail to mention a very significant fact in both Kuntze, supra and McDonald, supra, that distinguishes them from the case at bar. Namely, that in Both of those cases the defendants had been Lawfully stopped for a violation of the state Motor Vehicle Code Before the evidence in question was detected and seized. The Court in Kuntze, supra, said 371 Mich. on pp. 424--425, 124 N.W.2d at 272:

'While it is not necessary, therefore, to determine whether or not defendants were formally arrested before the leg of deer was seized, the fact that they had violated the motor vehicle code (without regard to the officers' possible right to stop defendants otherwise) is of some significance to the extent it required the officers in the proper exercise of their duty to stop defendants' car. The officers' right to do so is not questioned; nor can such right be doubted. Having done so, they put themselves in relation to defendants and their car in a place they had a right to be and from such vantage point Trooper Righter observed the commission of a misdemeanor by the defendants in...