*1 App 112 29 Mich this un ignored far award, so The six-cent inadequate. on its face expense, controverted Poultry Co. Whiteley Whitson v. 2 Mich App Hugener Michlap 598;
157. new trial as to remanded for a
Reversed Costs to only. plaintiff. damages All concurred.
PEOPLE v. BORDINE op Opinion the Court Witnesses—Prejudicial Questioning. Criminal Law — 1. questions asking witness Allowing prosecutor a to continue reversible prejudicial error where the defendant was against privilege repeatedly self-in- witness invoked his prosecutor knew that the witness crimination and where the refuse to answer. would Evidentiary Hear- Cause —
2. Searches Seizures —Probable ing. whether evidentiary hearing be held determine An must probable defendant’s auto- there for search of cause marijuana did mobile the trial court where seizure of be- rule search the reasonableness proviso, cause declared uncon- of a state constitutional since stitutional, allowing illegally evi- admission obtained driving dence and where the defendant had been for through police de- stop sign, a officer testified that one car, police they his fendant wanted to search asked police defendant another officer testified that asked the consented, to allow a search and References Points in Headnotes 2d, 349-354, 21 Am Jur 47 Am Criminal Law 360. 1] §§ Jur, 21-25. Searches and Seizures 2] §§ '3,4] Jur, Am Searches and Seizures § op Opinion the Court defendant, his being searched, while ear was dropped with a container filled to the police ground, third officer testified he had had a *2 house surveillance that he observed under and had plastic a shortly leave the house before with his arrest con- tainer, the container was clear three inches wide and was and the was observation made from to 700 feet gave explanation defendant, the police from and for no (US Const, 4). the house the surveillance of Am by Fitzgerald,
Dissent J. Searches Seizures —Without Warrant —Plain 3. View. Objects falling plain police in the view a has who a officer right subject position to be in the to have that view are to may (US Const, 4). seizure and be introduced into evidence Am 4. Searches and Seizures —Without Warrant —Plain View. Marijuana dropped ground by to his defendant after being stopped legally a violation was seized where traffic plain police. was in the view the from
Appeal Calhoun, Ronald M. Ryan, J. Sub- mitted Division 3 2, 1970, June at Grand Rapids. (Docket No. 7597.) Decided December 10,
Dale Ernest Bordine was convicted of unlawful possession of marijuana. Defendant appeals. Re- versed and remanded. M.
Anthony Calderone, for defendant on appeal. Before: T. M. Burns, P. J., Fitzgerald Byrns,* JJ.
T. M. Burns, P. J. Defendant, Bordine, Dale was tried and convicted of possession unlawful of mar- ijuana MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123) by a jury Calhoun County Circuit judge, sitting
*Circuit on the Appeals by assignment. Court of Opinion op the Court was sentenced a On March Court. years. more than ten less than five nor of not term driving a car May 1968, the defendant On stopped after City He was Battle Creek. sign. Apparently stop through a driving a discussion some after was issued summons traffic by car was searched defendant’s it and then about by stopped several vehicle had the officerwho at the scene. had arrived officers who other stated Yesh, Officer defendant, officer who wanted search the officer defendant asked Casterline, stated Officer officer, his car. Another his car could if he search Yesh asked defendant replied affirmative. in the and that defendant Depart- Creek Police Blanchard, Officer Battle a house at he had had ment testified that Detective, *3 Marjorie a short time under surveillance Street and had observed defendant before the arrest that he plastic house This walk out of the with container. allegedly of 500 at a observation was made distance although plastic to 700 container clear feet the was only inches three wide. officer also testified that “had received in- explanation No further surveil- formation”. given any justification lance was nor was other given. being
While the car was searched, defendant’s dropping defendant was observed an object object ground.1 to the Officer Yesh retrieved the gave it to Detective Blanchard. examined Blanchard the contents the container interesting although It to note that the claim to officers have times, plastic all had defendant’s hands under observation at the appeared container just being somehow in his hand cast before its ground. the interesting This is more when considered in con- junction with the defendant’s immediately conduct the before dis- covery of agreed the container for it is that defendant used both hands in getting opening out his license driver’s trunk. ear’s v. Bordine op Opinion the Court plant-like Subsequent and observed a substance. analysis Laboratory at the State Crime revealed marijuana.2 be the substance to people’s At trial the container was introduced as objection exhibit 2 over defendant’s that it was ground on inadmissible that the officer who alleged traffic viola- probable tion did not have cause to believe that a felony being committed.
During prosecutor the course of the trial asked OfficerBlanchard: you
“Q. How were able to determine it was Mr. carrying defendant] [the that was this plastic object Í working “A. I Mr. have known Bordine from on on cases, other Mr. Bordine.” granted Defendant asked that a mistrial be ground highly prejudicial that the remark was so jury’s substantially influence deliberations brought jury’s question attention to prior dealings defendant’s with the law. The motion was denied. people
Also in the course of the trial the called repeatedly a witness, Tionne Enos. This witness in- privilege against voked the self-incrimination and objected questions the defendant that the asked of prejudicial. the witness were We could reverse on allowing prosecutor the court’s to continue asking questions knowing the witness would Douglas refuse to answer. See v. Alabama *4 (85 934). 380 415 US Ct 13 L S Ed 2d But compelled go very we are further, the heart of 2 A review of the although analysis record reveals that the showed (Cannabis marijuana that the substance was sativa), it did not show any positive nor was the people’s as there by expert assertion that plant was not from a mature it would seem is required by 335.151(2) (f) MOLA 8 (Stat Supp Ann 1970 Cum [f]). § 18.1121[2] App 112 29 Mich Opinion op the Court is which the mar- against
the case the defendant ijuana seized by officers. of legality of the was much discussion there
While no there was in this case the search and that appears matter. It on this the court by ruling the search validity ruled that the trial court be because evidence reached seizure need art 11. We § under Const was admissible : transcript from quote page that, because “The Court: And argument was illegal, or the search seizure, search and that deten- during illegal derived any evidence that would have used, you of course cannot be tion strong other do have this again, you see, you but argument, see, You illegal search. it was question though still admis- evidence is under constitution the line some high along sible. Now somewhere is unconstitu- court hold that our constitution may tional.”
and page 177:
“I held this, though might am even it be saying I the detention were am not illegal, and search held; to do even should be willing though that it nevertheless, is admissible because evidence the narcotic.”
The issue was decided this Court by Andrews In 21 Mich App an unanimous decision Judge written Chief by held article was in 1, § that Lesinski, direct with the conflict Fourth Amendment of the United States Constitution and the Supremacy Clause controls. Andrews,
Since this court has shed attempted to some light upon this area of by search and seizure opinion our People Reeves 183. Although the did people not concede *5 117 v. by Fitzgerald, Dissent J. Reeves, search was unreasonable in man- ifestly so, and we reversed with an order to dis- charge the defendant.
Here, we are faced with a situation in which the search and seizure are perhaps quite as clearly Reeves. Therefore, while we in unreasonable reverse on the strength for reasons in stated Reeves, we remand for an evidentiary hearing reasonableness the search and seizure. See also Preston v. United States 376 364 (1964), US (84 11 881, S Ct L Ed 2d Sibron v. New York 777); 392 (1968), (88 US 40 S Ct 20 L Ed 2d 917); see generally Chimel 395 (1969), US California 752 (89 Ct L 2034,23 S Ed 2d 685).
Reversed and remanded an evidentiary hearing, and, if it he determined that the search was reasonable, a new trial. J., concurred.
Byrns, J. In (dissenting). my view, this is Fitzgerald, a case for application of the rule set forth in Harris v. United States 390 (1968), (88 US S Ct L 993; Ed 2d 1067, relative to 1069), “plain view” doctrine:
“It has been long settled that in objects falling the plain view an officer who has a right the position to have view are subject and may he introduced in evidence.” facts this case fall purview within the this doctrine. See People v. Meadows Mich App 675, and People Tisi
I would affirm the conviction.