People v. Stergowski

• Court: Michigan Supreme Court
• Writing for the Court: COLEMAN; In affirming, the Court; T. M. KAVANAGH
• Citation: People v. Stergowski, 219 N.W.2d 68, 391 Mich. 714 (Mich. 1974)
• Decision Date: 25 June 1974
• Docket Number: No. 4,4
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert STERGOWSKI, Defendant-Appellant.

Page 68

219 N.W.2d 68

391 Mich. 714

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert STERGOWSKI, Defendant-Appellant.

No. 4.

Supreme Court of Michigan.

June 25, 1974.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief Appellate Dept., James M. Wouczyna, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Kenneth A. Webb, Detroit, for defendant-appellant.

Before the Entire Court.

COLEMAN, Justice.

FACTS

Defendant is appealing a denial of his motion to suppress evidence or quash the information. Pursuant to GCR 1963, 797 the judge certified that this case 'involves a controlling question of law as to which there is substantial ground for difference of opinion'. This Court granted defendant's emergency application for leave to appeal.

The case arises from an arrest made November 26, 1972. Two police officers, William Crawford and James Pickett, responded to a call that a man was firing 'shots' at a given location. When they approached the address given, a man identified as defendant ran in front of the patrol car. He was carrying a pistol.

One officer ordered defendant to drop the pistol. Defendant hesitated but continued running towards a house. The officer pursued and pushed open the door to the house. Defendant ran into the bedroom and attempted to conceal the pistol under a mattress as the officer approached him.

The officer grabbed defendant's hand and disarmed him. Defendant then threw a metal box at the officer striking him in the face. Defendant ran into another room where he was subdued.

Defendant was arrested for assaulting the police officer. Officer William Crawford testified:

'We went into the living room and I searched him for further offensive weapons. He had nothing in any of his pockets except he had a large bulge in his right pocket, and I felt it and it appeared to have some bullets in there and I removed everything in that pocket and it turned out only to be a large quantity of money, some of it being counterfeit, and four bullets for a 9 millimeter gun and some heroin and a plastic vial, and inside the plastic vial there was 11 tinfoil packs.'

The officer further testified that he could see the tinfoil packs through the clear plastic and stated that from his experience heroin is carried in this fashion.

Analysis of the seized material confirmed the presence of 3.24 grams of powder containing heroin. Defendant was charged with unlawfully possessing a controlled substance.

In the motion to suppress or quash, it was contended that the police were without authority to pursue defendant into the house and arrest him. Defendant contended that his resistance was justified. Even if the police could pursue, defendant argued that they could not search him but could only 'pat him down' to determine if defendant possessed a weapon.

After extensive argument, the court denied the motion to quash. The judge felt 'that under all of the totality of circumstances' the officer had probable cause to believe defendant had committed a felony. Furthermore, there was an unjustified assault and battery upon the officer which independently authorized the arrest and search.

ISSUES

1.

Was the defendant lawfully arrested?

Is the heroin found by the arresting officers on defendant's person admissible into evidence as being the product of a valid search and seizure incident to a lawful arrest?

STATUTES

M.C.L.A. § 764.15; M.S.A. § 28.874 provides, in part:

'Any peace officer may, without a warrant, arrest a person--(a) For the commission of any felony or misdemeanor committed in his presence.'

M.C.L.A. § 764.25; M.S.A. § 28.884 reads:

'Any person making an arrest shall take from the person arrested, all offensive weapons or incriminating articles which he may have about his person and must deliver them to the sheriff of the county, chief of police of the city or to the magistrate before whom he is taken.'

Const. 1963 ¹

Art. 1, § 11 provides that a person has a right to be 'secure from unreasonable searches and seizures'.

DISCUSSION

1. Confrontation

The officers were responding to a complaint that a man was firing 'shots' in front of a house. As they approached the address, defendant ran in front of their car carrying a pistol. The officers ordered him to drop the weapon.

The action of the officers was justified and proper even if we go so far as to assume that probable cause to arrest defendant was lacking at that moment. The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) noted:

'the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.' (p. 24, 88 S.Ct. p. 1881)

In Terry the Court did not require the officer to be 'absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger'. (p. 27, 88 S.Ct. p. 1883)

This Court in People v. Whalen, 390 Mich. 672, 680, 213 N.W.2d 116 (1973) cited the following passage from Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) as further explaining the holding in Terry:

"In Terry this Court recognized that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest'. * * * The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. * * * A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. * * *"

Under the facts of the instant case, it was proper for the officers to order defendant to drop the weapon. Failure to so order would have been imprudent, if not a dereliction of duty. There was nothing improper about this initial confrontation.

Pursuit

The police had authority to order defendant to stop and drop the pistol. When defendant refused and fled into a house, the police had authority to pursue defendant and enter the house.

In Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), the police were informed that a robber fleeing the scene of a crime had entered a certain house. The officers were permitted to enter the house and search the basement and two floors. They found incriminating evidence which was introduced at trial. The United States Supreme Court said at pp. 298-299, 87 S.Ct. pp. 1645-1646:

'We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, 'the exigencies of the situation made that course imperative'. McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153. * * * They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.'

The officers in this case were responding to a complaint that an individual was firing a gun. They saw defendant carrying a pistol. Defendant refused to drop the weapon when ordered. The officers had sufficient basis for concluding that defendant was dangerous. They had ample cause to take those measures necessary to insure that defendant did not cause injury to anyone.

The police had authority to stop defendant on the street and disarm him. The fact that defendant fled into the house does not negate that authority, but enhances it. The police were witness to conduct which further confirmed the need to take immediate action. The circumstances warranted the pursuit. ² The officers were justified in entering the house.

Events in the House

The officers had authority to confront defendant on the street and order him to drop the pistol. The officers had authority to pursue defendant and enter the house. For conduct which occurred in the house, defendant was arrested.

When the first officer entered the house, defendant ran into a bedroom. The officer saw him attempting to hide the pistol under a mattress. The officer disarmed defendant. In the struggle, defendant threw a metal box at the officer striking him in the face. Defendant left the bedroom and was apprehended in another room. He was then placed under arrest.

M.C.L.A. § 764.15; M.S.A. § 28.874 permits an arrest without a warrant if there is commission of a misdemeanor in the presence of a peace officer. Defendant assaulted the officer when he threw the metal box. M.C.L.A. § 750.81; M.S.A. § 28.276 provides that as a minimum one convicted of an assault is guilty of a misdemeanor. It is clear that defendant was lawfully arrested for assault.

2.

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