People v. AlexanderPeople v. Alexander
- Reporters:
- , ,
- Before:
- Holbrook
At 10 р.m. on May 15, 1967, two Detroit policemen, patrolling in an unmarked car, observed an automobile travelling slowly with its lights off. The patrolmen stopped the car. Approaching it on foot, the officers noticed an unusual amount of activity by the defendant, a passеnger in the rear of the vehicle. One of the officers shined a flashlight on the defendant whо ivas seen trying to place several “handrolled” cigarettes under the seat. The officer noted that the cigarettes were of a type he, in his experience аs a policeman, had frequently *323 found to be marijuana. Tlie occupants of the car were ordered out of the automobile. The officer then observed a substanсe all over the back seat which appeared to be marijuana. “[I]t was a сhopped up weed, green in color, with seeds, little, light-green seeds.”
On appeаl, the defendant argues that the police lacked probable cause to make the arrest and subsequent search of the car.
When the constitutional validity of an аrrest is challenged on appeal, it is the function of the reviewing court to determine whether the facts available to the officers at the moment of the arrest would warrant the belief that an offense had been committed. Beck v. Ohio (1964), 379 US 89 (85 S Ct 223, 13 L Ed 2d 142); People v. Sansoni (1968), 10 Mich App 558; People v. Wolfe (1967), 5 Mich App 543; People v. Harper (1962), 365 Mich 494.
“In dealing with probable cause, however, as the name implied, we deal with probabilities. These are not techniсal; they are the factual and practical considerations of every-day life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States (1949), 338 US 160, 175 (69 S Ct 1302, 1310, 93 L Ed 1879, 1890); see also People v. Harper (1962), 365 Mich 494.
Looking at the facts available to the policeman in this case, we are satisfied that the officer had probable cause to make the arrest. The police lawfully stopped an automobile for driving at night with its lights off. While the vehicle and its passengers were lawfully dеtained, the defendant visibly attempted to hide handrolled cigarettes of a type frеquently associated with marijuana.
The conduct of an accused suspect when lawfully detained is one of the factual circumstances which will justify a warrantless arrest, as in thе case *324 where the defendant seeks to avoid apprehension and to destrоy what would be evidence against him. People v. Cruz (1964), 61 Cal 2d 861 (40 Cal Rptr 841, 395 P2d 889); People v. Raymond Jackson (1968), 98 Ill App 2d 238 (240 NE2d 421).
Next the defendant argues that the prosecution fаiled to call a res gestae witness.
Normally, in criminal proceedings the prosecution is under a positive duty to endorse and call all res gestae witnesses. People v. Dickinson (1966), 2 Mich App 646; People v. Kayne (1934), 268 Mich 186. Yet, as this Court has noted in the past, the prosecutiоn may be excused from producing a particular witness if it makes a showing of due diligence. People v. Kern (1967), 6 Mich App 406. This question of diligence is a matter within the discretion of the trial court, subject to being ovеrturned on appeal only for clear abuse. People v. Tiner (1969), 17 Mich App 18; People v. Kern, supra; People v. Hunleg (1946), 313 Mich 688; People v. Gibson (1931), 253 Mich 476.
In this case the prosecution offered testimony that the witness was twice unsuccessfully subpoenaed. The first time it was learnеd that the witness was in Germany. The second time it was discovered that he was in Seattle, Washington. Another reason offered for the unavailability of the witness was the large number of adjournments.
The court under these facts excused the prosecution and gave an instruction to the jury on the prosecution’s duty to produce res gestae witnesses. We find no abuse of judicial discretion.
Defendant also asserts that it was еrror for the prosecutor on final argument to state that no contradiction to the people’s testimony has been offered by the defense, and further to state that, “[a]nd he, as wc stand here, appears alone fully to know what
*325
happened, that is, the defendant Alexander.” We agree.
Defendant also argues that prejudicial error resulted from the рolice officers’ references at trial to the defendant as “Bobbie”. Timely objеction was not raised below and therefore the question will not be considered here on appeal.
Finally, defendant argues that
Thus, only when the narcotic is an “allied plant” must the prosecution establish that it is habit forming. Here, however, the prosecution established that the defendant possessed marijuana. This is all it was required to do by statute.
Affirmed.