People v. Rivers
| Decision Date | 30 August 1972 |
| Docket Number | No. 3,Docket No. 12434,3 |
| Citation | 42 Mich.App. 561,202 N.W.2d 498 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Lee RIVERS, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Fredric F. Balgooyen, Muskegon Heights, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Paul M. Ladas, Pros. Atty., for plaintiff-appellee.
Before FITZGERALD, P.J., and HOLBROOK and T. M. BURNS, JJ.
Ronald Lee Rivers, defendant, was convicted in a jury trial of carrying a concealed weapon, contrary to M.C.L.A. § 750.227; M.S.A. § 28.424, and appeals.
A preliminary examination was held in the matter and the defendant was bound over to circuit court for trial. A motion to suppress evidence was filed by defendant on June 23 and heard on June 28, 1971. This motion to suppress evidence was decided by the trial court based on the preliminary examination, there being no further proofs or evidence offered. 1 On June 29, 1971, the trial judge entered an order denying the motion of defendant to suppress evidence.
The defendant on appeal raises two issues which we restate and consider in proper order.
I.
Did the trial court properly rule on the defendant's motion to suppress evidence (two pistols) in holding that the search and seizure were reasonable and not violative of defendant's constitutional rights?
The pertinent facts brought out on the preliminary examination are as follows:
On August 24, 1970, at 9:45 p.m., Officer Haken of the Muskegon Police Department responded to a radio dispatch message to investigate a suspicious car in front of 350 Allen Avenue. Officer Haken had heard similar messages over the radio several times that afternoon describing the same 'suspicious car' being in the area.
The officer approached the car matching the description, and talked to the defendant, who was seated behind the wheel. After some argument, defendant produced a bankbook as identification, and stated that he was waiting for his girlfriend who had just gone into the house and who was coming right out. The officer observed that the passenger, one Earl Russell, was leaning forward and appeared to be concealing his hands. The officer then went to the passenger side of the vehicle, observed Earl Russell's identification (a driver's license), and was given the same explanation (waiting for the girlfriend) for their presence in the area.
The officer then informed the defendant and Earl Russell as follows:
As defendant and Earl Russell opened the car doors and exited the car, the light came on, and the officer saw a gun on the floor of the front seat where Earl Russell's feet had been. Officer Haken picked up the gun. He reviewed the interior of the car again and saw a pearl handled gun lying on the floor right where the defendant had been seated.
Defendant and Earl Russell thereupon ran and other officers apprehended Earl Russell at the scene, but defendant escaped and was arrested at later date.
Defendant contends that when Officer Haken said 'Let's go check', it was an order for him to get out of the car and constituted an arrest.
The people contend that the officer was acting properly in investigating the citizen's complaint; to have failed to do so would have constituted a dereliction of duty. His suggestion or request that defendant accompany him to the house to verify his story was not an arrest but a legitimate extension of his investigation. Thus, the officer had a right to be by the car door, and evidence coming into his view could lawfully be seized without a warrant.
In denying defendant's motion to suppress the evidence (the guns), the trial court specifically referred to the case of United States v. Johnson, 143 U.S.App.D.C. 215, 442 F.2d 1239 (1971), as dispositive of the issue. In that case, officers made a traffic stop, and when defendants exited the car, the dome light came on, revealing capsules of suspected narcotics spilled on the car floor. In holding the evidence admissible, the Court said:
United States v. Johnson, Supra, p. 219, 442 F.2d 1243.
There is dictum in that case to the effect that in any event, the officer would have been entitled to approach the car, require the driiver to get out, and give him a protective frisk for weapons, citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The Johnson case, while helpful, is not directly on point. First, it does not answer the question whether in suggesting or requesting defendant to accompany him to the house, the officer was arresting him; and second, it does not address the question whether the officer had a right to suggest or request the defendant to accompany him and thus get out of the car, which action placed the officer where he could see the gun in plain view.
In a study sponsored by the American Bar Foundation, 2 field interrogation and arrest are distinguished as follows:
'A. FIELD INTERROGATION AND ARREST DISTINGUISHED
'In this analysis the phrase 'field interrogation' is reserved for those cases in which the police conduct an interrogation in the area, usually on the street, where the suspect is found. The term 'arrest' describes the situation in which a suspect is taken into custody and down to the police station.
'In some situations, field interrogation and arrest complement each other. The major aim of a program of field interrogation is the apprehension of persons who have committed crimes. Field interrogation is thus an investigative device, a stage in the criminal justice system designed to separate innocent persons from those who should be subjected to the next step in the process, an arrest. The field interrogation may confirm the officer's suspicion, and an arrest will be made. In other situations, the field interrogation may produce exculpatory statements which allay the suspicions of the officer, and no arrest will be made.
'There are situations, however, in which the field interrogation produces no clear indication of either guilt or innocence. The suspect may refuse to answer, and then the officer is confronted with the difficult question whether suspicious circumstances plus a refusal to answer constitute adequate grounds for arrest or whether he may use a threat of arrest in order to induce cooperation.
'6. Citizen reports of a suspicious person. Officers often stop a person for interrogation as the result of a call from a citizen. 20 A housewife who observes a
man loitering outside her home, a proprietor who becomes wary of a man who repeatedly makes minor purchases in his store or who repeatedly observes his establishment from outside, the girl who thinks the man walking behind her at night is following her, each may contact the police and report a suspicious person. When officers receive such a report directly or receive a radio call to 'investigate a suspicious man at _ _,' they will typically stop and question the person if he can be found. 21
This distinction was carefully considered by the Supreme Court in Terry v. Ohio, Supra, 392 U.S. 26, 88 S.Ct. 1882, 20 L.Ed.2d 909:
'It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest.'
The Court in that case was concerned with the 'intrusion' of a reasonable search for weapons to protect the officer, prior to arrest. Nevertheless, the reasoning of Terry seems to extend beyond the facts of that case.
'It would have been poor police work indeed for an officer of 30 years' experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further.' Terry v. Ohio, Supra, 23, 88 S.Ct. 1881, 20 L.Ed.2d 907.
(Emphasis supplied.) Terry v. Ohio, Supra, 22, 88 S.Ct. 1880, 20 L.Ed.2d 906--907.
This distinction between arrests based on probable cause, and street investigations which may lead to arrests, has been fully considered in three recent cases from the District of Columbia. In Young v. United States, 140 U.S.App.D.C. 333, 336, 435 F.2d 405, 408 (1970), a shotgun was observed in plain view by officers investigating a suspicious car. The Court applied the Terry Court's reasoning to a situation resembling the instant case:
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