People v. FutrellPeople v. Futrell
Lead Opinion
Thе people appeal as of right from an order quashing the information against defendant. The decision to quash was based on an order granting defendant’s motion to preclude the people from introducing into evidence a handgun found in defеndant’s car. Defendant had been charged with carrying a concealed weapon,
On appeal, plaintiff claims the trial judge erred by relying exclusively on the preliminary examination transcript in deciding defendant’s motion to suppress. This practice was explicitly prohibited by the Supreme Court in People v Talley,
In the present case, defendant sought a favorable ruling of law on facts adduced from preliminary examination testimony. The people did not dispute these facts which were based on the testimony of police officers; thеy do not do so now. We do not believe the Supreme Court, in Talley, meant to impose an absolute requirement that an independent hearing be held on every motion to suppress. Where a sufficiently complete stipulation of facts is made, the trial court may decide the motion based on the stipulation. See People v Chernowas,
We nonetheless reverse the decision quashing the information and suppressing the use of the handgun in evidence. The trial court ruled that the search of defendant’s car without a wаrrant was improper due to the absence of exigent circumstances justifying an immediate search.
Under federal law, the absence of exigent circumstances is irrelevant when police have probable cause to believe that еvidence of crime will be found in a lawfully stopped automobile. United States v Ross,
In the present case, a restaurant employee observed the butt of a handgun, apparently carried by defendant in a shoulder holster. She activated a silent alarm, to which the police responded. Shortly after the alarm was activated, defendant
The reasonable inferences which could be drawn from the statement of the restaurant patron gave police probable cause to believe that evidence of a concealed weapons offense would be found in dеfendant’s car. Had police not immediately searched the car, it could have been moved, resulting in the loss of the evidence. Because of the car’s mobility, exigent circumstances existed justifying the seizure of the car while a magistrate’s approval for the search was sought. The essence of the "automobile exception” is the United States Supreme Court’s determination that, given these circumstances, police need not seek a magistrate’s approval before they conduct a search. In Ross, Justice Stevens explained the justification for the Carroll-Chambers automobile exception allowing police to search the car immediately:
"These decisions are based on the practicalities of the situations presented and a realistic appraisal of the relatively minor protection that a contrary rule would provide for privacy interests. Given the scope of the initial intrusion caused by a seizure of an automobile— which often could leave the occupants stranded on the highway — the Court rеjected an inflexible rule that would force police officers in every case either to post guard at the vehicle while a warrant is obtained or to tow the vehicle itself to the station.” Ross, supra, p 807, fn 9.
" 'For constitutional purposes, we see no differеnce between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, еither course is reasonable under the Fourth Amendment.’ ” Ross, supra, p 807, fn 9.
We find no constitutional significance in the fact that defendant’s car was parked in the restaurant’s lot and that he was a short distance from it at the time he was confronted by the police. See People v Bukoski,
We reverse the orders quashing the indictment and suppressing the use of the handgun in evidence.
Concurrence Opinion
(concurring). I concur in the majority’s reversal of the orders suppressing the evidence and quashing the information, but would remand for an evidentiary hearing on defendant’s motion to suppress.
This case raises an issue left open by the Supreme Court in People v Talley,
The transcript of the preliminary examination paints the following scenario. On January 29, 1981, an employee at a Burger King restaurant, while taking defendant’s order, noticed a large bulge under defendant’s clothing near his shoulder. When she saw the end of a gun, the employee thought there was to be a robbery and sounded an alarm. A restaurant patron, Elizabeth Wasik, then saw the defendant leave the restaurant, heаd toward a car and sit in it. Ms. Wasik then saw the defendant "bend over”. The police arrived shortly thereafter. After speaking to both the employee and Ms. Wasik, they searched the defendant. Finding no weapon, one of the officers searched the сar pointed out by Ms. Wasik. There, the officer found a gun in a shoulder holster on the floorboard behind the passenger seat. On the basis of this evidence, the defendant was eventually charged with carrying a concealed weapon on or about his рerson and/or carrying a concealed weapon in a motor vehicle,
Bound over for trial, the defendant brought a motion to quash the information which was properly treated as a motion to suppress. Both parties stipulated that the triаl court could rule on the
In People v Talley, supra, the Supreme Court specifically disapproved of the exclusive use of preliminary examination transcripts in determining a motion to suppress. Instead, the trial court is to review the evidence de novo by conducting an evidentiary hearing. Two concerns motivated the Court’s decision to adopt this position. First, a "trial court cannot properly assess credibility from the cold record prepared at the preliminary examination”. Talley, supra, p 391. Second, a de novo review allows the trial court to explore "constitutionally significant factual matters” not developed at the preliminary examination. Id.
A stipulation does not alleviate these concerns. In Talley, for example, it was critical for the court to decide whether the arresting officer testified truthfully that he observed the defendant stash a paper bag containing the evidence under his car seat. The officеr’s credibility could not be assessed from the "cold record” made at the preliminary examination. I fail to see how a stipulation would sufficiently enliven the record to allow the trial court to adequately assess the officer’s testimony. As Justice Levin, сoncurring in Talley, remarked:
"[W]here there is an issue of credibility it is necessary to conduct a hearing and hear the witnesses. Unless the judge himself hears the witnesses, the advantage of the judge’s superior opportunity to assess credibility is lost.
"I would not allow the parties to stipulаte to use of a preliminary examination record as a basis for deciding a credibility issue.” Talley, supra, p 395.
Thus, the problems attending a trial court’s reliance on the preliminary examination transcript, identified in Talley, survive a stipulation. It may be argued, however, that these problems affect only the interests of the parties and that they should be allowed their decision to run the risk of damaging their own cause by stipulating to an inaccurate and incomplete record. But Talley was not concerned primarily with the interests of the parties. Rather it sought to assist trial and appellate courts in properly deciding the defendant’s constitutional claims. Thus, the Court explained thаt it prohibited the exclusive use of preliminary examination transcripts to rule on a suppression motion
"in order to promote a more thorough exposition of the events surrounding a contested search or seizure. This, we hope, will aid the trial courts as well as the appellate courts in drawing the difficult line between the constitutionally permissible search or seizure and the constitutionally impermissible one.” Talley, supra, p 390, fn 3.
The reason that this prohibition assists the court in properly resolving the defendant’s constitutional issues is clear: only on the basis of an adequate record can the court properly determine the legality of the challenged search and seizure, and the preliminary examination transcript does not provide such a record.
As shown above, a preliminary examination transcript provides an inadequate record for purposes of ruling on a suppression motion whether or not the parties have stipulated to it. Thus, a trial court cannot properly rule on a suрpression motion on the basis of a stipulated preliminary examination transcript. By doing so, the trial court fails to vindicate the precise value which Talley sought to protect: the proper resolution of defendant’s constitutional issues. I conclude that a trial court may not rule on a suppression motion on the basis of a preliminary examination transcript alone even if stipulated to by the parties.
I find that the trial court erred by ruling on defendant’s motion to suppress on the basis of the stipulatеd preliminary examination transcript alone. I would reverse the orders suppressing the evidence and quashing the information and remand for an evidentiary hearing on defendant’s motion to suppress.
Because of my disposition of this case, I express no opinion as to the merits of defendant’s constitutional claim.