People v. Sims

• Decision Date: 24 April 1970
• Docket Number: 6359,Docket Nos. 5934,No. 1,1
• Citation: 178 N.W.2d 667,23 Mich.App. 194
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas SIMS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonard PERRY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 667

178 N.W.2d 667

23 Mich.App. 194

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas SIMS, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonard PERRY, Defendant-Appellant.

Docket Nos. 5934, 6359.

Court of Appeals of Michigan, Division No. 1.

April 24, 1970.

Released for Publication July 23, 1970.

Carl Levin, Arthur J. Tarnow, Detroit, for defendant appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Arthur N. Bishop, Asst. Pros. Attys., for plaintiff appellee.

Before LESINSKI, C. J., and QUINN and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

On November 2, 1967, defendants Thomas Sims and Leonard Perry were jointly tried by a jury and convicted of carrying dangerous weapons in a motor vehicle, ¹ namely a .38 caliber Colt revolver, a .25 caliber Browning automatic pistol, and a .22 caliber Crosman CO2 pistol lacking the CO2 apparatus. The defendants' four allegations of error are rephrased and discussed Seriatim.

1. The .25 caliber automatic pistol was seized pursuant to an illegal search.

At the time of their arrest on June 15, 1967, the defendants were passengers in a 1966 Mustang owned by a girlfriend of the driver. Sims sat in the front seat, Perry in the back. The driver, one Donny Young, a friend of ten or so years, had picked them up about an hour beforehand and was allegedly taking them to see a prize fight in Detroit, when, according to the arresting officers, he turned at the corner of Dix and Schaefer in Melvindale without signalling. Two of the four arresting officers approached the trio after they had been pulled over, officer Mitchell Bryndza going to the driver's side, officer Arthur Majewski going to the passenger side. Asked for his driver's license and registration, Young fumbled through his wallet without success and then told Sims to check the glove compartment. Sims opened the glove compartment and thereby revealed inside a holster that was later found to be empty. Seeing the holster, officer Majewski shouted 'Watch out.' At the very same moment, Young pulled the .38 out from behind his right leg and fired a shot at officer Bryndza. The shot missed and Young was subsequently disarmed. The officers then ordered Sims and Perry out of the automobile, arrested them along with Young, and in the process found the .22 caliber CO2 pistol lying in open view on the seat where Perry had been sitting. The Mustang was impounded and subjected, some 36 hours later, to a warrantless and nonconsensual search that turned up the .25 caliber pistol secreted under the right front floor mat, together with a box of ammunition.

Prior to trial, defense counsel moved to suppress the .25 caliber pistol. An evidentiary hearing was held, and the motion was denied, substantially under the reasoning approved in Cooper v. California (1967), 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730. The pistol was then introduced in evidence.

In reaching the question of illegal search and seizure, we must initially decide whether the defendants have standing to complain. We conclude that they do.

In recent years, the courts of this country and state have steadily moved away from concepts of property law in determining the rights of persons under the Fourth Amendment. In the forefront of this trend is Jones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, where the Supreme Court said:

'We are persuaded, however, that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of these distinctions in the homeland of the common law. * * * Distinctions such as those between 'lessee,' 'licensee,' 'invitee' and 'guest,' often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.

'No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him.' ²

Consistent with this trend is the Michigan Supreme Court's holding in People v. Gonzales (1959), 356 Mich. 247, 97 N.W.2d 16, where a claim of illegal search and seizure was presented by a passenger who had been ordered to move from his seat so as to facilitate a search of the automobile. The Court said:

'Further, we believe that on the facts in this case defendant had the right to raise the constitutional objection. There is no showing of any waiver of the objection by anyone. And though defendant apparently had only the status of a passenger, when the first requirement of the search (and a material one to its outcome) was that defendant remove himself from the seat in the automobile where he had a right to be, we regard the search as directly affecting him.'

It is true of course that the Court in Gonzales was impressed by the passenger's being ordered to move for the search, while the search in the present case took place in the defendants' absence. Yet by holding the search of the automobile invalid under the Fourth Amendment, the Court in Gonzales implicitly recognized that a guest passenger expects and is entitled to certain privacy for his possessions as well as his person. If the right protecting that expectation attaches upon the passenger's entry into the automobile, as it must, it can hardly matter that the search is conducted in his absence after he has been involuntarily, though legally, removed. ³ Thus under Gonzales, the defendants have standing to complain. The validity of the search in question turns on the warrant requirement of the Fourth Amendment. The defendants cite Preston v. United States (1964), 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 and contend that a warrant was needed. The people, on the other hand, contend that under Cooper v. California, Supra, the search was valid without a warrant.

In Preston, the petitioner was arrested with two companions on a charge of vagrancy. The automobile in which they had been sitting was towed to a garage and subjected to a warrantless search which produced evidence later used to convict them on a charge of conspiring to rob a federally insured bank. In an opinion written by Mr. Justice Black, the Court concluded that since the search was neither pursuant to a warrant nor incident to the arrest, it was unreasonable:

'The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime--things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. Agnello v. United States, Supra, (1925) 269 U.S. 20, 31, 46 S.Ct. 4, 5, 70 L.Ed. 145, (148). Here, we may assume, as the Government urges, that, either because the arrests were valid or because the police had probable cause to think the car was stolen, the police had the right to search the car when they first came on the scene. But this does not decide the question of the reasonableness of a search at a later time and at another place. See Stoner v. California (1963), 376 U.S. 483, 84 S.Ct. 889, (11 L.Ed.2d 856). The search of the car was not undertaken until petitioner and his companions had been arrested and taken in custody to the police station and the car had been towed to the garage. At this point there was no danger that any of the men arrested could have used any weapons in the car or could have destroyed any evidence of a crime--assuming that there are articles which can be the 'fruits' or 'implements' of the crime of vagrancy. Cf. United States v. Jeffers, 342 U.S. 48, 51, 52, 72 S.Ct. 93, 95, 96 L.Ed. 59, (1951), (64, 65). Nor, since the men were under arrest at the police station and the car was in police custody at a garage, was there any danger that the car would be moved out of the locality or jurisdiction. See Carroll v. United States, Supra, (1924), 267 U.S. (132), 153, 45 S.Ct. (280), 285, 69 L.Ed. 543, (557). We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.'

In Cooper, the police arrested the petitioner for selling heroin and impounded his automobile pursuant to a California statute authorizing the forfeiture of automobiles used for the trafficking of narcotics. A full week after the arrest, the automobile was subjected to a warrantless search which produced a small piece of a brown paper sack. The piece of sack was subsequently offered in evidence, and the petitioner was convicted of selling heroin. The Court, again per Mr. Justice Black, pointed out that under United States v. Rabinowitz (1950) 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 the test of validity is 'not whether it is reasonable to procure a search warrant, but whether the search was reasonable,' and therefore a warrantless search may be valid even though it is not incident to...