Docket 8625 | Mich. Ct. App. | Dec 10, 1970
PEOPLE
v.
NELSON
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Leonard Meyers, Assistant Prosecuting Attorney, for the people.
Alan A. May for defendant on appeal.
Before: V.J. BRENNAN, P.J., and LEVIN and PETERSON,[*] JJ.
V.J. BRENNAN, P.J.
On March 7, 1969, defendant Charles Nelson was arrested in a police narcotics raid. He was subsequently convicted by a jury of unlawful possession and control of narcotics.[1]
On the day of the arrest, police officers arrived at the basement of a residence in Inkster, Michigan with an arrest warrant for someone other than the defendant and a warrant to search the premises. Upon entering, the officers observed narcotics paraphernalia and arrested all present on a charge of *253 frequenting a place of illegal occupation. At the time of the arrest, defendant's person was searched; an envelope containing marijuana was found and later introduced into evidence at defendant's trial. The record does not show whether it was necessary for the officers to open the envelope to determine whether it contained marijuana.
Defendant makes four assignments of error, none of which requires reversal.
First, it is claimed that a warrantless search incident to a lawful arrest is limited in scope to a search for dangerous weapons, and, therefore, it was illegal for the officers to seize the envelope found on defendant's person if they did not believe it contained a dangerous weapon. Defendant's reliance on Terry v. Ohio (1968), 392 U.S. 1" court="SCOTUS" date_filed="1968-06-10" href="https://app.midpage.ai/document/terry-v-ohio-107729?utm_source=webapp" opinion_id="107729">392 U.S. 1 (88 S. Ct. 1868, 20 L. Ed. 2d 889), is misplaced. That case dealt with the permissible scope of a "stop and frisk" where probable cause for an arrest is absent. If, however, the defendant is lawfully arrested, an incidental search may be conducted of the arrestee's person and the area within his immediate control for implements with which the crime was committed and the fruits and evidence of the crime as well as for weapons. People v. Herrera (1969), 19 Mich. App. 216" court="Mich. Ct. App." date_filed="1969-10-01" href="https://app.midpage.ai/document/people-v-herrera-2181281?utm_source=webapp" opinion_id="2181281">19 Mich. App. 216; People v. Panknin (1966), 4 Mich. App. 19" court="Mich. Ct. App." date_filed="1966-07-26" href="https://app.midpage.ai/document/people-v-panknin-1645774?utm_source=webapp" opinion_id="1645774">4 Mich. App. 19; Chimel v. California (1969), 395 U.S. 752" court="SCOTUS" date_filed="1969-06-23" href="https://app.midpage.ai/document/chimel-v-california-107979?utm_source=webapp" opinion_id="107979">395 U.S. 752 (89 S. Ct. 2034, 23 L. Ed. 2d 685). Evidence of the crime with which defendant was charged and any evidence of other crimes properly uncovered in a search may be legally seized. People v. Herrera, supra. The defendant did not contest the legality of the arrest. We are persuaded the officers could, consistent with the Fourth Amendment, seize the envelope containing the marijuana.
Defendant also contends that he was prejudiced by the prosectuor's failure to indorse and produce all res gestae witnesses. It should be noted that defendant *254 did not object to the original indorsement nor did he ever offer the names of other witnesses who could give testimony. Under such circumstances, we do not feel that reversible error was committed. See People v. McLaughlin (1966), 3 Mich. App. 391" court="Mich. Ct. App." date_filed="1966-05-24" href="https://app.midpage.ai/document/people-v-mclaughlin-1229441?utm_source=webapp" opinion_id="1229441">3 Mich. App. 391.
Finally, defendant claims that the court erred in refusing to read back certain testimony on request of the jury and in ordering the removal of defendant's 7-month-old baby from the courtroom. Not only do these contentions lack substantive merit; but they were waived by failure to file a timely objection. People v. Reynold (1969), 20 Mich. App. 397" court="Mich. Ct. App." date_filed="1992-06-25" href="https://app.midpage.ai/document/people-v-reynold-2017096?utm_source=webapp" opinion_id="2017096">20 Mich. App. 397; People v. Bradley (1966), 4 Mich. App. 660" court="Mich. Ct. App." date_filed="1966-10-25" href="https://app.midpage.ai/document/people-v-bradley-1613077?utm_source=webapp" opinion_id="1613077">4 Mich. App. 660. See, also, Klein v. Wagenheim (1967), 379 Mich. 558" court="Mich." date_filed="1967-11-06" href="https://app.midpage.ai/document/klein-v-wagenheim-1660322?utm_source=webapp" opinion_id="1660322">379 Mich. 558.
In light of the foregoing, the decision of the trial court is affirmed.
Affirmed.
All concurred.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123).