*1 Aрp 440 PEOPLE v. CLARK the Court of Suppress to 1. and Seizures —Reasonableness—Motion Searches —Weapons—Concealed Weapons. motion, to prior made Denial of defendant’s gun proper a reasonable one where a was as the search was in of and two others and outside activities defendant suspicions telephoned a store of clerk who aroused the store requested patrol store police a car be sent neighborhood in a where had been rash located there police holdups; officers arrived while defendant store; poliee in he called two were still the clerk told the persons going to were them he was afraid the because three pocket, in he up; his hold him defendant had his hand and, store, during when one the time was policemen out requested defendant to take hand officer; with pockеt, he refused to talk and refused and, removing store an altercation defendant ensued, defendant was handcuffed and taken to pocket. gun in his station was found where the — Weapons Weapons — — 2. Irrelevant Conсealed Evidence Evidence. was proof operational and loaded that a Adduction carry- charged with not reversible error where defendant although proof weapon license without (MCLA 750.227, 769.26). offense was irrelevant to that §§ Weapons Weapons Proof. —Concealed —Evidence—Burden a license prove did not have need not that defendant Prosecution any county carry of the state where cаrrying a concealed (MCLA 750.227). license for in Headnotes
References Points 2d, [1, 5 Am Arrest Jur 4] seq. [2, Jur, et Weapons 56 Am §9 3] v. Clark Opinion op the Court
Dissenting Opinion Lesinski Suppress Hearing—Evi- *2 4. Searches and to Seizures —Motion dence. evidentiary hearing a A is entitled to wherе he full may present all material and evidence relevant available to him on the a reasonable and issue search seizure without surrendering rights as constitutional to talce at the trial where he was the stand chief carrying weapon a license concealed and his weapon motion evidence as the to exclude seizure was unreasonable search and made before trial. Appeal from Recorder’s Court of Detroit, Thomas L. Division Poindexter, April 15, Submitted (Docket 1970, 6,515.) at No. Detroit. Decided June 22, 1970.
Curtis Clark was convicted of Saul carrying concealed weapon. Defendant Affirmed. appeals.
Frank J. Robert Kelley, General, A. Attorney Derengoski, General, Gahalan, Solicitor William L. Prosecuting Attorney, Carnovale, Dominick R. Chief, Appellate Thomas Department, Smith, and P. Assistant for the Prosecuting Attorney, people. Mitchell,
Robеrt Jr., F. for defendant on appeal. Before: C. J., Quinn and and O’Hara,* JJ. J. Defendant was tried aby jury for Quinn,
carrying 1948, weapon contrary CL § 750.227 Ann 1962 and he 28.424) §Rev * Justice, Supreme Dormer Court sitting Appeals Court .of by assignment pursuant 6, 1963, to Const art amеnded op the Court appeal first issues, the raises several His convicted. admissibility of the to the which relates sup- defendant moved Prior in evidence. press motion was denied. and the Although the motion to court denied and art on the basis of Const Mapp v. Ohio here that under defendant contends L 6 Ed 2d US 643 933), of the state constitution 84 ALR2d this section United unconstitutional under the States Consti case obviate decision this the facts of this tution, issue. including young dе- men, activities three grocery aroused
fendant, in outside of store suspicions clerk extent that the store to the requested telephoned police headquarters clerk patrol that a radio, car be sent to the store. Notified *3 police four officers arrived while defendant were still in the two store. Defendant pocket, during had hand in had had police time he was in the store. The clerk told the he was that he called them because afraid the three young up. going men hold him were There holdups neighborhood. been a rash of in the policemen requested ofOne defendant to take pocket. his hand out of his Defendаnt refused to do so and refused to talk In with the officer. remov- ing defendant from the store, altercation ensued, defendant was handcuffed taken to the pocket. station where the was found in his Terry Under v. Ohio 1 US 889), 20 L Ed 2d this was a reаsonable search, Mapp, supra, and even under rea- sonable search is admissible. Denial of the motion proper. was judge interjected
Defendant claims that the trial proceedings by questioning himself into the wit- People Clark v. Lesinski, O. J. exhibiting partiality to the the extent of nesses prejudicing to a prosecution, defendant’s thus supported by not the record This claim is trial. fair us. before pros- alleges argument in final
Defendant that contrary attorney ecuting no to the fact that alluded presented by and that this defendant, was evidence arguments prejudicial not error. Final were was way if such have no to determine and we recorded made. comment was prej- is that asserted defendant The next error prosecution when the exceeded occurred udicial error proof required quantum of- to establish the charged. This with which defendant fense oper- proof relates to assertion proof was irrelevant to and loaded. Such ational which but its offense adduction was error. CL reversible 28.1096). Ann Rev 769.26 namely: allegation of error, final Defendant’s prosecution prove did not must that defendant carry county any a license to have Ramos unfounded. state App Affirmed. J., concurred.
O’Hara, July (dissenting). 1967, On C. J. carry- jury Saul convicted defendant Curtis Clark weapon.1 sentencing* Following to а *4 years, appeals prison of four five term right. as of first claim of
Defendant’s error concerns weapon from evidence the court’s refusal exclude 28.424), 1 MCLA 750.227 Ann 1962 Rev 440 444 App by C. an search and unreasonable
as thе commencement of the court, seizure. Before evidentiary hearing, denied defendant’s suppress stating, timely alia, inter motion to any the would feel bound the event, “in court Michigan provisions of new Constitution which weapons receipt in evidence of found on directs- a defendant.” The was admitted into evi- charge jury quoted and dence the court its § 11 of 1963 and art the Constitution of 1, stated “permits provision having that this officers attained prisoner, to introduce it in evi- regardless of dence, whether or not the seizure proper.” recently § 11
We have held art 1, the Con- of 1963 stitution is conflict with Ams 4 and 14 interpreted by United States Constitution as Mapp (1961), (81 v. Ohio 367 US Ct S 933). People L Ed 2d 1081, ALR2d v. Andrews Mapp 731. on decided June arrest the instant case oc- February commencing on curred 1967 with trial July Mapp, therefore, controls requires regardless exclusion of all evidence, of its nature, seized as result anof unreasonable search and seizure. Linkletter v. Walker 381 US 601). L 2d Ed This case should be remanded for eviden- full tiary hearing question of the reasonableness weapon. Following the search and seizure of the evidentiary hearing, the trial court make should prior ruling a redetermination of its on defendant’s light opinion, motion to in of this hearing, Mapp record v. Ohio.
In the event the search found to be reason- able, conviction stand; should if found to be unreasonable in the sense, constitutional evi- *5 People 445 v. Clark by Lesinski, O. and the defendant be should suppressed dence should a new trial. be granted the position
1 cannot
of
agree
majority
of
wе can decide the issue
reasonableness
of
that
before us.
the search and seizure on the record
The
defendant should have the
to attack the
opportunity
search and seizure in accord with his motion timely
evidentiary
entitled to an
hear
made. Defendant
is
where he
all material and relevant
present
ing
may
him on
evidence available to
this issue without sur
such other constitutional
as the
rendering
rights
not to take the stand at the trial
chief.2
14 Mich
People Wiejecha (1968),
App
See,
v.
States
390
also,
(1968),
Simmons v. United
US 377
19 L
2d
1247). Compare People
S
Ed
Ct
v. Smith
19 Mich
(1969),
App
of
trial court’s blanket
ruling
Because
evidence,
contested
the defend-
admissibility of the
an effective attack,
ant
prevented
making
People
Cope
Compare
App
where
argued
evidentiary
defendant also
entitled to a full
hearing
pretrial
suppress
on his
motion to
certain evidence. This
disagreed
17:
Court
at
objection
testify
“Defendant’s
is that he was
not allowed
his
complete right
own behalf.
It
is
that defendant had a
clear
arresting
only thing
cross-examination of
officer Evans. The
possibly
give
dеfendant could have
said was that he
did
may
police permission to search. One
waive the issuance of a search
People
permit
premises.
consent
the search
warrant
v.
of his
clearly
Weaver
Mich
and this is
what defendant
elected to do.”
Supreme
granted
appeal
reversed,
Court
leave to
sita
sponte, by order at
I would remand cause this trial court for actions not inconsistent with this opinion.
LITTELL KNORR Trespass Retaining Damages. — Wall —Land Level — property changes A owner who the level of his land liable for damage adjacent by to an property pres- landowner’s caused against adjacent sure from soil fill or building proрerty and may for damages resulting also be liable pounding, compacting soil opera- and vibrations caused construction tions. Prescription — Alleys — — 2. Easements Dedication Com- mon-Law Dedication. Finding strip trial that a court 16-foot of defendant’s land adjoining plaintiffs’ property public alley was a because of implied proper city, common-law dedication was where the party defendant, strip admitted that was not on its tax strip, rolls and that it maintained and witnesses graded city it, testified and removed snow from that general public abutting property well as used owners property, sign strip for and that time identified it as a court. for References Points in Headnotes 2d, 1 23 Am Adjoining Am Jur Landowners 73-76. [1] [2] §§ 2d, Jur Dedication §§