Docket 67054 | Mich. Ct. App. | Mar 20, 1984
PEOPLE
v.
SIZEMORE
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.
Gerald J. Van Wambeke, for defendant on appeal.
*784 Before: V.J. BRENNAN, P.J., and M.J. KELLY and G.R. COOK,[*] JJ.
G.R. COOK, J.
Following a bench trial conducted in the Washtenaw County Circuit Court, defendant was convicted of breaking and entering an occupied dwelling with the intent to commit larceny. MCL 750.110; MSA 28.305. Defendant was sentenced to three years probation and ordered to pay costs and make restitution. Defendant now appeals as of right.
James Fidler and his wife discovered that their home in Ypsilanti Township had been broken into on March 13, 1982, at approximately midnight. Several items had been taken, including a television, two pairs of binoculars, and a cable television box. The police were called and the crime, including a description of the stolen items, was detailed on a briefing sheet which was read by on-duty sheriff's deputies prior to the beginning of their shift each day.
On March 15, 1982, Washtenaw County Sheriff's Deputy Lester Wallen, an 11-year police veteran, and his partner, Willis Chapman, were patrolling an area of Ypsilanti Township known for its high incidence of larcenies and break-ins. The officers noticed a car on Parkwood in front of an apartment building while driving northwest on Ford Boulevard. The car's motor was running, but its lights were turned off. The officers could see people in the vehicle and noticed one person in the back leaning forward. This person's shoulders would disappear from sight, and it was obvious to Deputy Wallen that this individual was attempting to place something underneath the seat.
As the officers approached, the subject vehicle *785 began to move forward with its lights still off. Deputy Chapman motioned for the car to stop. As it stopped, Deputy Wallen recognized the driver of the vehicle as a person who had been involved in break-ins. He also recognized defendant from having previously arrested him for unrelated breakins in Pittsfield Township.
Deputy Wallen got out of his patrol car and, using his flashlight, he looked through one of the stopped vehicle's windows. He could see a portion of a black metal object in a garbage bag protruding slightly from underneath the driver's seat. Deputy Wallen asked the vehicle's three occupants to exit from the car. They were patted down for weapons, but none were found. Deputy Wallen then retrieved the garbage bag from the back seat and determined that the metal object he had observed was a cable television box. Deputy Wallen recalled that one had been listed as stolen on that evening's briefing sheet.
After informing the occupants of the car of their Miranda[1] rights, Deputy Wallen questioned them concerning the ownership of the cable television box. Each subject denied knowledge of the box, although at some point one of the passengers said that he had seen the box but did not know what it was.
The men were then taken into custody for further investigation. Deputy Wallen stated at trial that, while defendant and his companions were not informed that they were under arrest at that time, Deputy Wallen considered defendant to have been arrested for possession of stolen property over $100.
At the police station, defendant was again informed *786 of his Miranda rights. During a taped interview, defendant admitted that he and a cohort had broken into the Fidlers' home and had stolen a television, two sets of binoculars, and a cable television box.
Defendant first contends that the police officers' decision to stop the car in which he was riding violated his Fourth Amendment rights, citing Terry v Ohio, 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 (1968). Under Terry an investigatory stop is permissible if it is based upon specific, articulable facts which, when taken together with the rational inferences to be drawn from these facts, would lead a reasonable police officer to believe that criminal activity may be afoot. Probable cause is not required. People v Martin, 99 Mich. App. 570" court="Mich. Ct. App." date_filed="1980-08-25" href="https://app.midpage.ai/document/people-v-martin-2217376?utm_source=webapp" opinion_id="2217376">99 Mich. App. 570, 575-576; 297 N.W.2d 718" court="Mich. Ct. App." date_filed="1980-08-25" href="https://app.midpage.ai/document/people-v-martin-2217376?utm_source=webapp" opinion_id="2217376">297 NW2d 718 (1980), lv den 413 Mich. 926 (1982).
In this case, the police possessed a reasonable suspicion of possible criminal activity at the time of the stop. The officers noted a parked vehicle in a high crime area with its lights off and its engine running. The occupant in the back seat was, in Deputy Wallen's words, "obviously attempting to place something underneath the seat" and, when the patrol car approached the parked car, it began to move with its lights off. See People v Olson, 98 Mich. App. 207" court="Mich. Ct. App." date_filed="1980-06-16" href="https://app.midpage.ai/document/people-v-olson-2163578?utm_source=webapp" opinion_id="2163578">98 Mich. App. 207, 210-211; 296 N.W.2d 218" court="Mich. Ct. App." date_filed="1980-06-16" href="https://app.midpage.ai/document/people-v-olson-2163578?utm_source=webapp" opinion_id="2163578">296 NW2d 218 (1980), lv den 410 Mich. 899 (1981).
Defendant next argues that even if the initial stop was constitutionally permissible, the subsequent intrusion into the automobile and the seizure of the cable television box was violative of the Fourth Amendment because the intrusion was not based upon probable cause.[2] After the stop of the *787 vehicle, the deputies obtained further information pertinent to a determination of whether probable cause to search existed. Deputy Wallen identified both the driver of the vehicle and defendant as having been involved in other break-ins. In addition, before he actually entered the vehicle which defendant occupied, Deputy Wallen could see the edge and corner of a metal box contained in a garbage bag underneath the driver's seat. One of the passengers in the vehicle placed his feet over the box as if to hide it.
We conclude that, under the totality of the circumstances, the deputies had probable cause to conduct a search. The facts of this case are not dissimilar from those presented in People v Damaska, 404 Mich. 391" court="Mich." date_filed="1978-12-29" href="https://app.midpage.ai/document/people-v-damaska-2228508?utm_source=webapp" opinion_id="2228508">404 Mich. 391; 273 NW2d 58 (1978). One significant distinction is that in Damaska the officers noted that the name taped on the seized item, a calculator, was not defendant's, while no comparable circumstance is presented here. However, this case also poses facts, not present in Damaska, leading to the conclusion that probable cause existed, namely: (1) Deputy Wallen's knowledge that two of the three occupants in the vehicle had been involved in break-ins in the past, (2) the furtive gestures of the back-seat passenger, (3) the efforts by this passenger to obstruct the cable television box with his feet, and (4) the vehicle's occupants professed lack of knowledge of the box. As in Damaska, supra, p 394, the facts in this case "form an equally compelling combination" and mandate a finding of probable cause. An immediate search of the vehicle which defendant occupied was permissible *788 as exigent circumstances existed. The automobile might never have been located again had the officers taken the time to obtain a warrant. Chambers v Maroney, 399 U.S. 42" court="SCOTUS" date_filed="1970-10-12" href="https://app.midpage.ai/document/chambers-v-maroney-108184?utm_source=webapp" opinion_id="108184">399 U.S. 42, 51; 90 S. Ct. 1975; 26 L. Ed. 2d 419 (1970).
Defendant finally asserts that his arrest was improper because the police did not have probable cause to believe that he had committed a felony. Defendant's argument is based upon: (1) the contention that the officers had no reason to believe the box was stolen and (2) Deputy Wallen's testimony that he did not know how much cable television boxes were worth.
We find that Deputy Wallen did have probable cause to believe the cable television box was stolen. At the time of the arrest, in addition to the circumstances which supported the search of the vehicle, the deputies also knew that a cable television box of the type reported stolen by the Fidlers was in defendant's possession. Moreover, the wire on the back of this box had been broken as if it had been "jerked" apart from where it was originally connected. While the totality of these circumstances did not constitute proof beyond a reasonable doubt, they certainly would allow a person of reasonable caution to believe that an offense had been committed. People v Rodriguez, 83 Mich. App. 606" court="Mich. Ct. App." date_filed="1978-05-15" href="https://app.midpage.ai/document/people-v-rodriguez-2039548?utm_source=webapp" opinion_id="2039548">83 Mich. App. 606, 609; 269 NW2d 199 (1978).
Defendant further asserts that, since the deputies did not know what a cable television box was worth, he could not permissibly be arrested for a felony, and no misdemeanor was committed in the officers' presence. See People v Ward, 73 Mich. App. 555" court="Mich. Ct. App." date_filed="1977-02-03" href="https://app.midpage.ai/document/people-v-ward-1628848?utm_source=webapp" opinion_id="1628848">73 Mich. App. 555, 557; 252 NW2d 514 (1977). We disagree. First, probable cause to arrest does not require proof beyond a reasonable doubt. It was certainly not unreasonable for the deputies to assume that cable *789 television boxes are worth more than $100 and, therefore, to believe that a felony had been committed by defendant. Second, assuming, arguendo, that probable cause to arrest for a felony was not possessed by the deputies, they could minimally conclude that a misdemeanor was being committed in their presence, namely, receiving and concealing stolen property with a value under $100.[3]
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Miranda v Arizona, 384 U.S. 436" court="SCOTUS" date_filed="1966-06-13" href="https://app.midpage.ai/document/miranda-v-arizona-107252?utm_source=webapp" opinion_id="107252">384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694; 10 ALR3d 974 (1966).
[2] Defendant also argues at some length that the intrusion was not permissible as a protective search for weapons on less than probable cause because the police were not motivated out of concern for their safety. See People v Rosales, 406 Mich. 624" court="Mich." date_filed="1979-07-25" href="https://app.midpage.ai/document/people-v-rosales-1861466?utm_source=webapp" opinion_id="1861466">406 Mich. 624; 281 NW2d 126 (1979), cert den 444 U.S. 1025" court="SCOTUS" date_filed="1980-01-07" href="https://app.midpage.ai/document/michigan-v-rosales-9018159?utm_source=webapp" opinion_id="9018159">444 U.S. 1025 (1980). We decline to discuss the merits of this contention because the prosecution does not attempt to justify the search as one intended for the deputies' protection. Instead, the prosecution argues that probable cause to search existed.
[3] Deputy Wallen stated that he arrested defendant for receiving and concealing stolen property. Defendant later confessed to the break-in, however, and the charge was modified.