People v. Walker
Decision Date | 27 August 1971 |
Docket Number | A,No. 26,26 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Douglas WALKER, Defendant-Appellant. pril Term. |
Court | Michigan Supreme Court |
James K. Miller, Kent County Pros. Atty. by Donald A. Johnston III, Chief Appellate Atty., Grand Rapids, for plaintiff-appellee.
Bergstrom, Slykhouse & Shaw by Robert G. Quinn, Jr., and Carl J. Verspoor, Grand Rapids, for defendant-appellant.
Before the Entire Bench.
The basic question in this case is whether at a preliminary examination the People are required to show--By legally admissible evidence--that a crime has been committed and that there is probable cause to believe the accused is guilty. As will be seen, the error in this case was raised (1) at the preliminary examination, and (2) by two pretrial motions to quash. No attempt was made to correct the error until the defendant's trial had begun and he had been placed in jeopardy.
Evelle White, Charles Parrish and defendant were arrested for unlawful possession of heroin at 1:30 p.m. on June 28, 1968. White's 1966 Pontiac was stopped after leaving expressway I--96 and entering Grand Rapids. Police officers Freeman and Bender blocked defendant's car by cutting in front of it with an unmarked Corvair. They jumped out of their car with guns pointed and ordered White, Parrish and Walker to keep their hands in sight. White and Parrish were in the front seat--Walker in the back. They seized four packets of heroin from the rear floor of the car where Walker's feet had been. Search of Walker's pockets resulted in seizure of a 'works kit' for heroin and an envelope containing four tabs of methadone.
On direct examiantion of Sergeant Freeman at the preliminary examination, the prosecutor relied on article 1, § 11, Constitution of 1963, and made no attempt to show probable cause for the search and seizure. Cross-examination of Freeman by Calvin Danhof, attorney for White, in pertinent part was as follows:
'
In spite of the Judge's ruling, Mr. Danhof did not pursue this line of questioning. There was no other testimony, either by Sergeant Freeman or by any other witness at the preliminary examination, to establish probable cause.
Before trial, defendant filed a motion to quash the information for lack of probable cause in the arrest and search of Walker. The motion was denied by Judge Searl largely on the ground that the Michigan Constitution, article 1, § 11, allowed searches without probable cause for narcotics 'outside the curtilage of any dwelling house in this state.'
At a pretrial conference before Judge Roman J. Snow, defendant's attorney again moved to quash the information 'on the grounds the arrest was improper and without good and reasoanble cause.' No testimony was introduced other than that at the preliminary examination. Judge Snow relied on the validity of article 1, § 11, of the 1963 Constitution and also found probable cause for search under the 'plain view doctrine' based on the testimony of Sergeant Freeman that he saw the four packets (later found to contain heroin) on the floor of the car 'as he (Walker) was just getting out of the car.'
At trial on March 4, 1969, after the jury was sworn and after the voir dire, the prosecutor conducted an examination of Sergeant Freeman outside the presence of the jury. Defendant's attorney objected on the ground that probable cause must be shown at the preliminary examination and cannot be shown at trial. Sergeant Freeman's testimony at the trial clearly established probable cause.
Walker was convicted of unlawful possession or control of narcotics (M.C.L.A. § 335.153; Stat.Ann.1957 Rev. § 18.1123) and was sentenced to 5 to 10 years. His conviction was affirmed by the Court of Appeals. (25 Mich.App. 418, 181 N.W.2d 639). We granted leave. (384 Mich. 761).
Relying on People v. Zeigler (1960), 358 Mich. 355, 100 N.W.2d 456, defendant argues that probable cuase must be shown at the preliminary examination. In Zeigler, this Court stated (pp. 359--360, 100 N.W.2d p. 459):
In People v. Kaigler (1962), 368 Mich. 281, 118 N.W.2d 406, Justice T. M. Kavanagh, who was joined in his opinion by three other Justices, wrote (p. 299, 118 N.W.2d p. 415):
See, also, People v. Williams (1962), 368 Mich. 494, 118 N.W.2d 391.
At the preliminary examination, the people are required to show that a crime has been committed and that there is probable cause to believe that the accused is guilty of having committed that crime. In the absence of such a showing, the accused cannot properly be bound over by the examining magistrate. (M.C.L.A. § 766.13; Stat.Ann.1954 Rev. § 28.931); People v. Dellabonda (1933), 265 Mich. 486, 251 N.W. 594; People v. Karcher (1948), 322 Mich. 158, 33 N.W.2d 744; People v. Miklovich (1965), 375 Mich. 536, 134 N.W.2d 720; People v. Kennedy (1971), 384 Mich. 339, 183 N.W.2d 297.
In this case, the prosecutor and the judges relied on article 1, § 11, Constitution of 1963, which was declared unconstitutional in People v. Pennington (1970), 383 Mich. 611, 178 N.W.2d 471.
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