People v. Dugan
People v. Dugan
Opinion of the Court
Defendant was convicted, after a jury trial, of receiving or concealing stolen property over the value of $100. MCL 750.535; MSA 28.803. He was sentenced to a prison term of from 1 to 5 years, and appeals by right.
Defendant raises four issues on appeal, one of which requires reversal. Prior to trial, defendant brought a motion to suppress evidence of the snowblower which was the subject of his troubles with the law. The motion alleged that the snow-blower was seized pursuant to a warrantless entry into his garage. The motion was denied. Defendant renewed his motion on the first day of trial, just before the start of the voir dire, but the motion was again denied. Although the record on appeal does not contain the transcript of the suppression hearing, a motion to suppress may properly be
In the instant case, Officer Gregory Thompson testified that on the morning of January 29, 1978, he contacted Mr. Charles DeBruyne who reported that a snowblower had been taken from his garage. Mr. DeBruyne reported further that he had followed a set of snowblower tracks from his garage, through an alley, to the rear of a house on East Outer Drive. Officer Thompson testified that he then followed the tracks and an accompanying set of footprints to the rear of the house he had been told about, at which point the tracks and footprints continued through a hole in the fence at the rear of the house and into the garage. Officer Thompson then testified that he walked around to the front of the house where he observed a set of footprints leading from the garage to the front door. He then entered onto the property and went to the open garage where he observed a snow-blower that matched the description given by Mr. DeBruyne. On checking further, he verified that the serial number on the snowblower matched the serial number given by Mr. DeBruyne. The officer testified that he then returned to the front of the
It is uncontested that there was no search warrant in the instant case. Both the Michigan and United States Constitutions protect against unrea
The "exigent circumstances” exception provides that when the police have probable cause to believe that a search of a certain place will produce specific evidence of that crime (the foundation requirements for issuance of a search warrant), there is no need for a warrant if the police also have probable cause to believe that an immediate warrantless search is necessary in order to (1) protect the officers or others, (2) prevent the loss or destruction of evidence, or (3) prevent the escape of the accused. People v Harris, 95 Mich App 507, 510; 291 NW2d 97 (1980). See United States v Chadwick; 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977), People v Plantefaber, 91 Mich App 764, 770; 283 NW2d 846 (1979). The rationale of the exception is clear; when the police have the probable cause necessary to secure a warrant, but circumstances make it impossible for them to obtain the warrant in time, then it is "reasonable” under the Fourth Amendment to conduct a search and to seize evidence or contraband. See United States v Guidry, 534 F2d 1220, 1222-1223 (CA 6, 1976).
In addition to the exceptions to the Fourth Amendment’s warrant requirement, it has often been held that objects within the "plain view” of a police officer, observed from a place where the
Under the facts and circumstances of the instant case neither exigent circumstances nor plain view can be used to justify the search of defendant’s garage and the subsequent seizure of the snow-blower. When Officer Thompson arrived at the rear of defendant’s property he undoubtedly had probable cause to believe that a crime had been committed and that the snowblower, the evidence of the crime, could be found on defendant’s property. At this juncture he should have sought a search warrant for the premises. The prosecution argues, however, that exigent circumstances arose when the defendant exited from his house and headed for the garage. This argument ignores the fact that at the time defendant headed for the garage Officer Thompson had already entered onto
The prosecution’s alternative basis for seeking to uphold the search and seizure, the plain view doctrine, is also inapplicable under the facts and
Because we are left with a definite and firm conviction that a mistake was made, we find the trial court’s refusal to suppress the evidence clearly erroneous. Because the evidence was seized as the result of an illegal search, the evidence should have been suppressed. Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961), People v White, 392 Mich 404, 411; 221 NW2d 357 (1974), cert den 420 US 912; 95 S Ct 835; 42 L Ed 2d 843 (1975).
To the extent that both the dissenting and concurring opinions suggest that exigent circumstances arose from the mere fact that the object to be seized was a snowblower, they are in error. The Supreme Court has held that a motor vehicle, stopped on a highway, may present the police with exigent circumstances to search the vehicle because of the inherently mobile nature of such a vehicle. See Chambers v Maroney, 399 US 42; 90 S Ct 1975; 26 L Ed 2d 419 (1970), Carroll v United States, 267 US 132; 45 S Ct 280; 69 L Ed 543 (1925). The so-called "automobile exception” (actually one form of "exigent circumstances”) is in fact a rather limited rule and has no application in a setting such as that before us now. Indeed, the exception has been held inapplicable to a car parked in a private driveway when there was no indication that the car was about to be moved. Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971). Coolidge instructs that the critical factor in cases such as this is not the ease with which the evidence may be removed. If that were the case a warrant would almost never be required since narcotics, stolen jewelry, weapons, and most other items which would conceivably be the object of a search are as capable of being easily removed as a snowblower could ever be. See Coolidge, supra, footnote 18. The key is instead whether an actual attempt to remove the evidence is made. At the time of the search in the instant case no such attempt had been made, and, accordingly, no exigency yet existed. The exigency which ultimately arose in the instant case more than likely resulted from the illegal search. The subsequent exigency does not, therefore, render the original illegal search lawful.
Concurring Opinion
(concurring). I am concurring separately, because I want to stress that I am not giving lip service to anything but what I deem to be the law. The dissenting opinion bases part of its conclusion on the fact that the serial numbers on the allegedly stolen snowblower were the same numbers reported by complainant. This is true; however, the dissent does not discuss the fact that the police officer entered the garage for the purpose of checking this serial number. It is this part of the search which provided the officer with most of his probable cause. I do not know a great deal about snowblowers, but I assume that they all look pretty much alike. I do agree with Judge Bashara that once the police saw the identity of the numbers, exigent circumstances existed. However, this does not alter my conclusion that there was initially insufficient probable cause for the search. Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963).
Dissenting Opinion
(dissenting). I respectfully dissent. The facts, even as set forth in the majority opinion, leave me with the firm conclusion that exigent circumstances existed. The complaining witness and a police officer appeared at the edge of defendant’s property, following snowblower tracks leading from complainant’s property to defendant’s. Once there, clearly with probable cause, the officer proceeded onto defendant’s property where the snowblower, which matched the description given by the complainant, was spotted in plain view in defendant’s garage.
To say that the police officer must retreat and obtain a warrant flies in the face of reason. A snowblower is capable of being easily removed. It
However, the majority is careful to indicate that a trial court’s ruling on a motion to suppress evidence will not be overturned unless clearly erroneous, citing Grimmitt, supra. At the least, the question is close. In overruling the holding of both the magistrate and the trial court, the majority is giving lip service rather than substance to the long-established rule.
I would affirm the defendant’s conviction.
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