PEOPLE v ROBINSON
No. 2 September Term 1972, Docket No. 53,824
Supreme Court of Michigan
November 29, 1972
Rehearing denied January 30, 1973
388 Mich 630
OPINION OF THE COURT
1. PRISONS-ARREST-JAIL-PERSONAL BELONGINGS.
Rеquiring removal and deposit of personal belongings with the jailer when a person is arrested and jailed is a customary procedure.
2. SEARCHES AND SEIZURES-PRISONER INVENTORY-POLICE OFFICER‘S OBSERVATION.
Information obtained by a police officer through the exercise of his senses as he observes articles being removed by a prisoner from his pockets and transferred to a receptacle for safekeeping is not information obtained as a result of a search.
DISSENTING OPINION
T. M. KAVANAGH, C. J., and ADAMS and T. G. KAVANAGH, JJ.
3. SEARCHES AND SEIZURES-REASONABLENESS-CONSTITUTIONAL LAW-SEARCH WARRANT.
The general rule is that any search is unreasonable under the Fourth Amendment guarantee against “unreasonable searches and seizures” unless conducted рursuant to a validly issued search warrant (
REFERENCES FOR POINTS IN HEADNOTES
[1, 2] 5 Am Jur 2d, Arrest § 73.
[2] 47 Am Jur, Searches and Seizures § 19.
[3] 47 Am Jur, Searches and Seizures § 6.
[4] 47 Am Jur, Searches and Seizures §§ 6, 18.
[4, 5] “Plain view,” observation of objection, 29 L Ed 2d 1067.
[5] 47 Am Jur, Searches and Seizures § 19.
5 Am Jur 2d, Arrest §§ 24, 34-36.
Lawfulness of nonconsensual search and seizure without warrant, prior to arrest, 89 ALR2d 715.
[6] 29 Am Jur 2d, Evidence § 415.
Modern status of rule governing admissibility of evidence obtained by unlawful search and seizure, 50 ALR2d 531.
[7] 29 Am Jur 2d, Evidence §§ 425, 426.
Exceptions to the general rule that any search is unreasonable unless conducted pursuant to a validly issued search warrant are: (1) prinсipally, a search may be lawful when conducted in conjunction with a lawful arrest contemporaneous to the arrest and confined to the person and immediate surroundings of the individual arrested, (2) an automobile may be searched without a warrant when there is probable cause to believe that an object or substance is hidden within and there is a possibility that it may be destroyed before a warrant can be obtained, and (3) an object in plain view may be properly seized.
5. SEARCHES AND SEIZURES-ARREST-PRIVATE CITIZENS-POLICE OFFICERS-STATUTES-MISDEMEANORS-OBJECTS IN PLAIN VIEW-EVIDENCE-MOTION TO SUPPRESS.
The power to arrest in Michigan is governed by statute, a private citizen cannot lawfully arrеst another for the commission of a misdemeanor and a police officer cannot arrest a person for the commission of a misdemeanor outside his presence without a wаrrant; therefore, where a private citizen marched defendant into a police station and charged him with a misdemeanor and, on the strength of the private citizen‘s complaint defendant was arrested and searched and among his possessions was found a cigarette lighter connecting him with a robbery, his arrest was invalid because there was no warrant issued prior to his arrest and accordingly the search of defendant cannot be sustained as being made pursuant to a valid arrest and, as there was no allegation that the lighter was in plain view but was produced only аs the result of a search, the lighter was seized as the result of an unlawful search and should have been held inadmissible in defendant‘s trial for armed robbery when his attorney moved to suppress the evidence (
6. CRIMINAL LAW-IDENTIFICATION-EVIDENCE-SEARCHES AND SEIZURES.
An initial taint of an identification procedure will affect subsequent proceedings linked to the tainted activity; therefore, where evidence of the showup identification of defendant by the victim of a robbery resulting directly from the discovery of a cigarette lighter found among defendant‘s possessions, springing from an impermissible search, provided the only link between defendant and the robbery of the owner of the lighter and there was no separate, independent basis connecting the
7. CRIMINAL LAW-EVIDENCE-MOTION TO SUPPRESS-DISCRETION.
While it is generally true in Miсhigan that a motion to suppress evidence must be made prior to trial, the trial judge does have the discretion to entertain such a motion at trial.
Appeal from Court of Appeals, Division 1, Levin, P. J., and R. B. Burns and J. H. Gillis, JJ., affirming Recorder‘s Court of Detroit, George W. Crockett, Jr., J. Submitted September 5, 1972. (No. 2 September Term 1972, Docket No. 53,824.) Decided November 29, 1972. Rehearing denied January 30, 1973.
37 Mich App 115 affirmed.
Henry Robinson was convicted of unarmed robbery. Defendant appealed to the Court of Appeals. Affirmed. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Williаm L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Leonard Meyers, Assistant Prosecuting Attorney, for the people.
State Appellate Defender Office (by Daniel S. Seikaly), for defendant.
BLACK, J. (for affirmance). I agree with the reasoning of both opinions below (37 Mich App 115, 119) and therefore vote to affirm. In particular I adopt as level-headed common sense the first two paragraphs of the concurring opinion Presiding Judge LEVIN prepared. They read:
“When a person is arrested and jailed it is a customary procedure to require him to remove and deposit his personal belongings with the jailer.
“Information obtained by a police officer through the
T. E. BRENNAN, SWAINSON and WILLIAMS, JJ., concurred with BLACK, J.
T. G. KAVANAGH, J. (dissenting). Defendant brings this appeal from a decision in the Court of Appeals1 affirming his conviction for unarmed robbery.
On February 14, 1971, defendant Henry Robinson was marched into a police station at the point of a rifle wielded by an irate citizen, one John E. W. Jones. Jones alleged that Robinson had tricked him out of 40 dollars. On the strеngth of Jones‘s complaint Robinson was arrested and searched. Among his possessions was found a cigarette lighter with the initials “J. T.“. A police officer recalled that a similar cigarette lighter hаd been reported as taken from one Jessie Tate two weeks earlier during a robbery. Mr. Tate was called in, and at a showup, identified defendant as his robber.
Defendant was tried for robbery armed. At trial his attorney made motions to dismiss the charges, and to suppress the evidence. Both motions were denied. Defendant was subsequently found guilty of robbery unarmed and sentenced to not less than 7-1/2 years in prison.
Basically, three issues are present on appeal: 1) Whether the cigarette lighter was produced as a result of an unlawful search and was therefore inadmissible; 2) If the seаrch was unlawful, was the showup identification inadmissible under the “fruit of the poisonous tree” doctrine; and 3)
The Constitution of the United States2 guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * * “. The general rule is that any search is unreasоnable unless conducted pursuant to a validly issued search warrant. No search warrant was issued in this case.
Only three exceptions to this general rule have been carved out by the many deсisions of the United States Supreme Court. First, a search may be lawful when conducted in conjunction with a lawful arrest.3 Second, an automobile may be searched without a warrant when there is prоbable cause to believe that an object or substance is hidden within, and there is a possibility that it may be destroyed before a warrant can be obtained.4 The third exception is that an objеct in plain view may be properly seized.5
No automobile search is involved here, so the second exception clearly does not apply.
A search made pursuant to a vаlid arrest is the principal exception to the rule requiring a search warrant. Initially this exception was only allowed upon a showing that the obtaining of a warrant would be impractical.6 This was subsequently modified to allow any search if reasonable.7 The excep-
It is clear that the search in this instance was contemporaneous to the arrest, and was confined to defendant‘s pеrson. However, the search was unlawful because there was no valid arrest. The power to arrest in Michigan is governed by statute. Jones‘s private arrest of defendant was for, by his claim, larcеny by conversion under 100 dollars, a misdemeanor.9 A private citizen cannot lawfully arrest another for the commission of a misdemeanor.10
A police officer cannot arrest a persоn for the commission of a misdemeanor outside his presence without a warrant.11 Because there was no warrant issued prior to the arrest of this defendant, his arrest was invalid. Accordingly the seаrch of this defendant cannot be sustained as being made pursuant to a valid arrest and the first exception has no application.
Likewise we conclude that the third exception does not apply for there is no allegation that the lighter was in plain view. The statements of the prosecutor and the testimony of the police officers inescapably lead to the сonclusion that the lighter was produced only as the result of a search. We conclude therefore that the lighter was seized as the result of an unlawful arrest, and therefore should have beеn held inadmissible.
The next question presented is whether evidence of the showup identification of defendant was inad-
The showup at which defendant was identified by Jessie Tate resulted directly from the discovery of the lighter. Springing as it does from an impermissible search, such evidence is inadmissible.14
Finally, while it is generally true in Michigan that a motion to suppress evidence must be made prior to trial, nevertheless the trial judge does have the discretion to entertain such a motion at trial.15 Having done so here, the question is properly before us.
Reversed and remanded.
T. M. KAVANAGH, C. J., and ADAMS, J., concurred with T. G. KAVANAGH, J.