People v. Smith
Decision Date | 25 October 1972 |
Docket Number | No. 2,Docket No. 12460,2 |
Citation | 204 N.W.2d 308,43 Mich.App. 400 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank S. SMITH, Jr., Defendant-Appellant |
Court | Court of Appeal of Michigan — District of US |
Gerald M. Lorence, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Appellate Counsel, for plaintiff-appellee.
Before QUINN, P.J., and McGREGOR and Van VALKENBURG, * JJ.
Defendant was found guilty by a jury of receiving or concealing stolen property, M.C.L.A. § 750.535; M.S.A. § 28.803. Defendant was arrested on November 4, 1970, pursuant to a complaint and warrant issued that same day, charging him with 'receiving or aiding in the concealment of stolen property', specifically a Monroe Calculator, valued at greater than $100, stating further that the defendant knew the item to be stolen when he received it.
While awaiting trial, defendant moved to suppress certain physical evidence, specifically the Monroe Calculator. After denial of this motion, the defendant moved for a rehearing on his motion to suppress, which was also denied. At trial, a jury found him guilty as charged, and defendant filed a timely claim of appeal.
Defendant's first contention on appeal is that the trial court erred in failing to exclude from evidence the Monroe Calculator. Due to the fact that this Court reverses defendant's conviction on this point, the testimony is herein reviewed in detail. A Michigan State Police trooper was a witness at the hearing on the motion to suppress evidence; his testimony related that he visited the offices of the defendant during the course of his investigation of a breaking and entering at a local high school. The trooper stated that he had recovered a Monroe Calculator which had been stolen from the high school, and that the person from whose possession it was recovered had indicated that he obtained it from the defendant. The trooper further stated that his purpose in visiting the defendant's office was to question the defendant as to where he obtained the high school calculator; the trooper indicated that he did not have a search warrant for defendant's premises, nor did he have an arrest warrant for the defendant at the time of his visit. When the trooper arrived at the defendant's office, a secretary informed him that the defendant was not in but was expected shortly; thereupon the secretary telephoned the defendant and the trooper talked to him on the phone. The trooper further testified that he told the defendant during this phone conversation that he was a police officer and that he wished to speak to the defendant in person. The defendant replied that he would be in his office shortly, and the trooper waited to see him. While waiting, the trooper entered the private office of the defendant and saw a Monroe Calculator in position on a desk in the office. Knowing that at least two of these machines had been reported stolen from the local high school, the trooper asked the secretary how long they had owned the machine and asked permission to check the machine. The secretary answered that she believed that they had owned the machine for six months and gave her permission for the trooper to check it.
The trooper believed the Calculator in the defendant's office was the same as one he had recovered; he inspected the machine, obtained its serial number, and called the Monroe Calculator Company to see if they had a record of this machine. During his conversation with the Monroe Company, he was interrupted by the defendant's secretary, saying that the defendant wished to speak to the trooper on the phone. When the trooper talked to the defendant, the defendant told him to leave his office, which the trooper did. The trooper also testified that he did not recall seeing any signs on the walls of the defendant's office. The next morning, the defendant was placed under arrest.
The next witness at the suppression hearing was the defendant's sister, being also the secretary who had talked to the trooper. The sister-secretary testified that she met the trooper, in full uniform, on the morning in question, and that, upon being advised that the trooper wanted to talk to the defendant, she called her brother from her phone at the desk in the front office. When she had established contact with her brother, she gave the phone to the trooper and went into the defendant's office, in the back of the building. She testified that the trooper came to the door of the defendant's private office, entered, and sat down. He did not speak to the secretary at this time. The secretary went back to the front part of the office; when she returned, the trooper was sitting in the defendant's chair, at his desk, looking at the Monroe Calculator on the defendant's desk. The trooper asked permission to use the phone. The secretary does not remember the trooper asking for permission to check the calculator, but does remember that he asked how long the defendant had owned the machine. She then returned to the front office, called the defendant, and related that the trooper was in the defendant's office, looking at the machine and other articles in the office. The secretary also testified that there was a sign warning people not to sit at the defendant's desk and that her instructions were that all persons coming into the office were to wait in the reception room until they were given specific permission to sit elsewhere. The secretary stressed the point that no one was allowed to sit at the defendant's desk, to be behind his desk, or to touch any of his papers.
The defendant testified that he talked to the state trooper on the phone on the morning in question, told him he would be there soon, and told him to wait in the waiting room. However, before the defendant could leave for his office, the secretary had called back and told him that the trooper was behind his desk, investigating the serial numbers of the machines. At defendant's request, the trooper came to the phone, and when the defendant had learned that he did not have a search warrant, he ordered the trooper to leave. The defendant also testified that the office rules were that no one was to be in his office in his absence, and repeated the fact that there was a sign warning people to stay away from behind his desk, that the sign could be seen before a person could sit down at the desk, and that the sign had been on the wall on the day of the trooper's visit. Defense counsel substantiated the visibility of this sign in defendant's office.
The trial court denied defendant's motion to suppress the evidence of the Monroe Calculator.
At trial, plaintiff's proposed exhibit, the Monroe Calculator, Serial #8-- 884180, was introduced into evidence without objection.
The defendant contends, on appeal, that the testimony produced at the suppression hearing established that the defendant's office and his desk were constitutionally-protected areas. Defendant also argues that the plaintiff failed to establish any consent for the subsequent search of this inner office by the state trooper and, in addition, alleges that his secretary could not consent in his stead because the investigation had already focused on this defendant.
Defendant further contends that the trial court erred in holding that the Monroe Calculator was not the product of an unlawful search and seizure in violation of the 4th Amendment to the U.S. Constitution and Art. 1, § 11 of the Michigan Constitution of 1963. In denying the motion to suppress, the trial court apparently relied exclusively upon the law enunciated in Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069 (1968), and People v. Eddington, 23 Mich.App. 210, 218--227, 178 N.W.2d 686 (1970). The trial court found that the trooper was lawfully in defendant's office where he observed, in plain view, the Monroe Calculator, and that items in 'plain view' are subject to seizure, citing the Harris case. The trial court ruled that the trooper's examination of the calculator did not change the character of his actions from examining an item in plain view into an unlawful search.
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but 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. IV.
This amendment is made obligatory upon the states by the due process clause of the 14th Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1971).
It should be noted that the first clause of the 4th Amendment prohibits unreasonable searches and seizures, and that the second clause prescribes requirements for warrants. Thus, a search and seizure authorized by a search warrant that meets the requirements of the second clause clearly qualifies as a reasonable search, and evidence so obtained will usually be admissible in any subsequent criminal proceeding. In order to meet the requirements of the second clause, the search warrant must be based upon probable cause. This probable cause requirement is usually met if the facts and circumstances within a person's knowledge are sufficient to warrant a man of reasonable caution to believe that the evidence in question will be found. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924). It is clear that the 4th Amendment requires that, if an area or place is to be searched, a search warrant based on probable cause, describing the area to be searched and the items to be seized, should first be issued.
It should be noted that numerous searches and seizures occur without a valid search warrant. The courts have encountered difficulty in...
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