151 N.W.2d 225 | Mich. Ct. App. | 1967
PEOPLE
v.
OVERALL.
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, S. Jerome Bronson, Prosecuting Attorney, Robert W. Leutheuser, Chief Appellate Counsel, and Raymond James Hand, Assistant Prosecuting Attorney, for the people.
James E. Nichols, for defendant.
*155 QUINN, P.J.
By jury verdict, defendant was convicted of second degree murder[1] and was sentenced February 27, 1962, to prison for a term of 15 to 40 years. By this appeal, defendant questions the propriety of admitting in evidence a .380 automatic gun barrel, allegedly obtained by illegal search, and the denial of his motion for dismissal at the close of plaintiff's proofs on the basis a prima facie case had not been established. Prior to trial, defendant moved to suppress the above evidence, a hearing was had thereon, testimony was taken, and the motion was denied.
March 16, 1961, Richard White died of a gunshot wound inflicted on that date by a .380 caliber pistol. Testimony taken at the preliminary examination and on the motion to suppress disclosed that subsequent to March 16, 1961, police received information indicating defendant was involved in an armed robbery in which a.380 caliber automatic was used, that such a weapon had been seen in a bedroom occupied by defendant and another in a residence owned by defendant's grandmother, that heroin had been found at the scene of the White shooting, and that defendant was a user of heroin. Possessed of the foregoing information, 2 police officers and defendant's parole officer went to the grandmother's residence September 15, 1961, to arrest defendant for murder; they did not have a warrant for defendant's arrest nor a search warrant. About 10 a.m. of September 15, 1961, the officers placed the residence in question under surveillance but without covering the rear door. This continued until about 10 p.m., when the officers went to the door of the residence, knocked and inquired of defendant's father, who answered the door, if defendant was there. Receiving a negative answer, they asked permission to look *156 through the house. The father referred the officers to the grandmother for an answer to this request. It is disputed whether she granted this permission, but the bedroom occupied by defendant and another was searched and a .380 automatic gun barrel, a homemade syringe and 3 syringe needles were found. Ballistic tests indicated the bullet taken from White's body and a bullet from a wall at the scene of White's shooting had been fired through the gun barrel obtained by this search. A warrant for defendant's arrest was issued September 18, 1961, and he was later apprehended in Ohio.
Defendant contends that even if the grandmother authorized the search, such authorization is not binding on him, citing Stoner v. California (1964), 376 US 483 (84 S Ct 889, 11 L ed 2d 856). Stoner, supra, supports the contention as does People v. Kaigler (1962), 368 Mich 281. There is no showing here that defendant waived his right not to be subject to unreasonable search or that he consented to the search.[2]
The plaintiff seeks to justify the search on the basis that defendant was on parole, his parole officer was present, and the latter, by authority of PA 1953, No 232, § 38, CLS 1956, § 791.238 (Stat Ann 1954 Rev § 28.2308), was authorized to search. We read People v. Carr (1963), 370 Mich 251, to hold to the contrary. It is true that Carr was in jail for a misdemeanor at the time of the unlawful search and defendant was on parole from a felony conviction when the search here involved was made, but we do not believe this difference is a legitimate basis for distinguishing the basic doctrine of Carr, namely: "Imprisonment for an unrelated crime does not strip one of all his civil rights and constitutional *157 safeguards against unreasonable search and seizure."
The search here was unreasonable; the fruits thereof were inadmissible and defendant's motion to suppress should have been granted. This result obviates discussion of defendant's second ground of appeal.
Reversed and remanded for new trial.
McGREGOR and A.C. MILLER, JJ., concurred.
NOTES
[1] CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549).
[2] US Const, Am 4; Mich Const 1908, art 2, § 10, as amended; Mich Const 1963, art 1, § 11. REPORTER.