287 N.W.2d 366 | Mich. Ct. App. | 1979
PEOPLE
v.
HUNTER
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.
Before: D.C. RILEY, P.J., and J.H. GILLIS and MacKENZIE, JJ.
ON REMAND
PER CURIAM.
Defendant was found in the living room of a house the police had entered pursuant to a search warrant. Syringes and other narcotic paraphernalia were in plain view. Defendant was arrested for knowingly loitering in a place where such paraphernalia is kept or sold. Detroit Municipal Code § 28-8-8. A search of defendant revealed a quantity of powder alleged to contain heroin.
Defendant was charged with possession of heroin with intent to deliver, MCL 335.341(1)(a); MSA 18.1070(41)(1)(a). After being bound over, defendant moved to suppress the evidence obtained in the search following the arrest and to quash the information. The trial court found the ordinance under which defendant was initially arrested to be unconstitutional and granted the motion.
Plaintiff appealed to this Court as a matter of right. This Court affirmed. People v Hunter, 90 Mich App 1; 282 NW2d 218 (1979). A majority of the panel held that the ordinance was unconstitutional and concluded implicitly that since the defendant *52 had been arrested pursuant to that ordinance, both the arrest and the search were invalid.
On July 19, 1979, the Michigan Supreme Court denied plaintiff's application for leave to appeal. 406 Mich 1006 (1979). On October 16, 1979, the Michigan Supreme Court granted plaintiff's motion for reconsideration of its application for leave to appeal and remanded the case to the Court of Appeals for reconsideration in light of Michigan v DeFillippo, 433 US 31; 99 S Ct 2627; 61 L Ed 2d 343 (1979).
The question presented is whether an arrest made in reliance on an ordinance, which at the time had not been declared unconstitutional, is valid regardless of a subsequent judicial determination of its unconstitutionality. On the authority of Michigan v DeFillippo, supra, we hold that it is and reverse.
The ordinance in question is presumptively valid. People v McQuillan, 392 Mich 511, 536-537; 221 NW2d 569 (1974). A review of the record establishes that the arresting officers had abundant probable cause to believe that the defendant was committing an offense, i.e., violating the ordinance. Accordingly, the defendant was subject to a valid arrest. Detroit v Recorder's Court Judge, 85 Mich App 284, 290; 271 NW2d 202 (1978), MCL 764.15; MSA 28.874. The validity of the arrest is not affected by the subsequent judicial determination that the ordinance is unconstitutional. Michigan v DeFillippo, supra. The search which followed was valid because it was incidental to the arrest. United States v Robinson, 414 US 218, 235; 94 S Ct 467; 38 L Ed 2d 427 (1973).
The evidence discovered in the course of that search should not have been suppressed. The motion to quash was improperly granted.
Reversed. The case is remanded for further proceedings not inconsistent with this opinion.
