People v. Shaw

• Decision Date: 20 March 1968
• Docket Number: No. 1,Docket No. 1414,1
• Citation: 157 N.W.2d 811,9 Mich.App. 558
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ulysses Grant SHAW, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 811

157 N.W.2d 811

9 Mich.App. 558

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ulysses Grant SHAW, Defendant-Appellant.

Docket No. 1414.

Court of Appeals of Michigan, Division No. 1.

March 20, 1968.

Released for Publication April 24, 1968.

Rehearing Denied June 3, 1968.

Milton R. Henry, Pontiac, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Luvenia D. Dockett, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before GILLIS, P.J., and T. G. KAVANAGH and W. J. WEIPERT, ^* JJ.

GILLIS, Presiding Judge.

Charles Johnson was shot and killed on December 30, 1964 in the garage behind his home in the city of Detroit. Defendant Ulysses Grant Shaw was arrested for Johnson's murder later the same day in Pontiac and subsequently was delivered to Detroit police officers, who transported him to Detroit. An 11-day jury trial in August of 1965 culminated in a conviction for first degree murder; from this conviction defendant appeals.

Defendant contends that reversible error was committed in several respects during this lengthy trial. We deal fully with only one of these, the search and seizure issue, which alone warrants a new trial.

Over an objection by defense counsel, the trial court admitted into evidence a shellcasing and a live .22 caliber bullet found in defendant's automobile on December 31, 1964, about 18 hours after defendant was arrested in Pontiac. A police laboratory officer later testified that a comparison-microscope examination showed the markings on this casing and the one found at the scene of the crime to be identical; the officer further stated that identical markings are caused by firing both bullets from the same gun. The murder weapon itself was never found. It is therefore clear that the conviction cannot stand if it was error to admit into evidence the shell-casing found in defendant's car.

The prosecution contends that the shellcasing was properly admitted because it was discovered during a search authorized by the defendant's consent. Defendant is said to have given this consent, in the absence of counsel and during a period of interrogation sometime between 10 p.m. December 30 and 1 a.m. December 31. According to the testimony of a police detective assigned to this case, defendant was asked in the course of the questioning, 'Do you have any objections if our laboratory men look over your car?' The response was 'None at all. None whatsoever.' Defense counsel claims in this appeal that these words do not indicate the 'free, intelligent, unequivocal and specific consent' required to support a search, not incident to an arrest, in the absence of a warrant.

If defendant consented to the search of his automobile, he waived his constitutional right that the search be founded on a warrant issued 'upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' U.S.Const. Am. 4. In the context of a right-to-counsel case the United States Supreme Court expressed itself on the subject of waiver of constitutional rights in the following manner:

'It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights." Johnson v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466.

We believe that this states the proper approach to issues of waiver of any constitutional guaranty. The justification for such a view is not far to seek. It rests on the plain fact of human experience that rights easily waived are rights easily lost.

The problem of validation of searches and seizures through the alleged consent of a defendant was recently given exhaustive consideration in the annotation 'Validity of Consent to Search Given by One in Custody of Officers,' 9 A.L.R.3d 858. It states at pp. 864, 865:

'It cannot be emphasized too much that the determination of the sufficiency of a consent to a search as affected by the status of the consenter as in custody, depends upon the particular facts and circumstances of each case, and that there are no hard rules by which the presence of a certain fact (in addition to custody) will bind the court to a particular decision.'

It seems to be recognized generally that mere detention by the police will not prevent a sufficient consent. This is the accepted view in Michigan. People v. Bardley (1928), 243 Mich. 609, 220 N.W. 788. What additional elements will render invalid an alleged consent to a search has been the subject of a spate of decisions. See cases cited in 9 A.L.R.3d 858, et seq., supra. In holding illegal a search and seizure based on alleged consent, the Supreme Court in People v. Kaigler (1962), 368 Mich. 281, pointed out one consideration at p. 294, 118 N.W.2d 406, at p. 413:

'It is elementary that the obtaining of a search warrant may be waived by an individual and he may give his consent to search and seizure; but such waiver or consent must be proved by clear and positive testimony And there must be no duress or coercion, actual or implied, and the prosecutor must show a consent that is unequivocal and specific, Freely and intelligently given. Karwicki v. United States (CCA 4), 55 F.2d 225; Kovach v. United States (CCA 6), 53 F.2d 639. The burden for the prosecution is particularly heavy where the individual is under arrest. Judd v. United States, 89 U.S.App.D.C. 64 (190 F.2d 649); Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654.'

Yet the Court has indicated that the addition of actual arrest to custodial detention does not Per se prohibit valid consent to a search. In People v. Zeigler (1960), 358 Mich. 355, at pp. 363, 364, 100 N.W.2d 456, at p. 461, the Court observed:

'This is not to say that under certain circumstances it may not be held that a person has waived his constitutional rights, while under lawful arrest, by voluntary giving of consent to what otherwise would be an unlawful search or seizure. As the court observed in Zap, ¹ however, the law of searches and seizures, as revealed in that court's decisions, is the product of the interplay of the 4th amendment's guaranty against unreasonable search and seizure and the 5th amendment's guaranty that no person shall be compelled in any criminal case to be a witness against himself, its dual purpose being to protect the privacy of the individual and to protect him against compulsory production of evidence to be used against him.'

The Court went on, by way of dictum, to say at pp. 364, 365, 100 N.W.2d at p. 461:

'And so, with respect to incriminating evidence, other than confessions, obtained by search and seizure, under a conceivable showing of facts, such as, Inter alia, that the accused was first advised of his rights, Informed that he need not submit to a search and that, if he did, the fruits thereof would be used in evidence against him, his consenting to the search and seizure may will, in the absence of contrary indications, be held to be voluntary, not an involuntary act secured under coercion, and, hence, a waiver of his constitutional rights, rendering such evidence admissible.' (Emphasis supplied)

The following are the facts produced at the time of the hearing in the absence of the jury. Defendant had told the Detroit police he had not slept the night before; if true, this means that he had been awake for at least 30 consecutive hours before he allegedly gave his permission to search the car. In addition, he had been in custody and under arrest for approximately 5 to 7 hours, and had been subjected to progressively intense questioning since at least the ride to Detroit from Pontiac. There was testimony concerning an attempt by defendant to contract a lawyer and defendant claims he indicated a desire to see a lawyer before answering questions, yet no attorney was present during the interrogation in police headquarters. Defendant denied having given any consent to the search and denied having been informed of his constitutional rights. On the other hand, the police detective who conducted the questioning stated:

'I told him there was some information and evidence against a man named Grant Shaw; and if he was this man, he had a right not to answer my questions under the state and federal constitution. I also told him that if he was innocent of these charges, he would be given an opportunity to tell me where he was, if he was not involved in this matter, and I would work just as hard to see to it he got out of jail as I did to see to it that he got into jail. I believe that's pretty close to my exact wording.'

See the language quoted from People v. Zeigler, supra.

Speaking of the prosecution's burden of proving free,...