People v. Smith

1969] v. Smith

PEOPLE v. SMITH Evidence—Suppression—Timeliness—Discretion. 1. Motions — proceeding suppress must A motion to evidence criminal obliged judge made, all, if at in advance of trial as a hearing separate turn from the trial to conduct a aside discretion, admissibility although, as a matter of evidence he do so. Suppres- — — — — Timeliness Discretion Evidence 2. Motions Knowledge. — — Acquisition Defense sion refusing judge Trial to conduct did not abuse his discretion intent separate hearing, trial for assault with while defendant’s sup- progress, was in on a motion to eommit murder defense shotgun police officers, press a box of unused shells which apartment, had one of two warrantless visits to defendant’s allegedly had volun- who obtained from defendant’s brother police, where defense tarily given shells to the the unused suppress that before trial counsel failed to move because the unused shells although police knew the receipt himto defendant’s brother had unused shells. Suppres- — — — — Discretion Evidence Timeliness 3. Motions n — Knowledge. — Acquisition Lack of sion denying a motion defense Trial discretion abused from shotgun obtained spent shell [1, [4-6] ^[2] [7, ^{[11] [9]} [12] [13,14] ^{[10] [15]} Am29 3] 29 Am Jur 16 Am Jur 47 Am 47 Am 16 Am Jur 29 Am 4, Am 47 Am Jur Am Jur Am Jur Jur, Jur, Jur, 2d, Evidence 415. Jur References 2d, 2d, Jur, 2d, Searches and § Searches and Seizures 71. Searches and Seizures 2d, 2d, 2d, Appeal Constitutional Evidence Constitutional Law § Searches Evidence Evidence § for Points § and Seizures 72. 425. Seizures 54. §§ §§ Law Error 426. §§ 542. § § in Headnotes §§ 131, 135, 131. § 839. 136. police visit, though in a warrantless even mo- during trial, appeared tion was made neither where it nor defendant defense counsel had known before trial that spent shotgun shell; had obtained the shell receipt was not on a listed to defendant’s brother apart- for a box of unused shells from obtained defendant’s ment a later warrantless visit. Suppression — — — — 4. Motions Evidence Timeliness Consti- Bight. tutional orderly The interest conduct of a trial which is the basis requiring suppress of the rule that a motion to made in trial, against advance of must be balanced the defendant’s illegally suppressed constitutional to have seized evidence (US Const Am Suppression — Sup- — — 5. Evidence Nondisclosure Motion to press — Timeliness. prosecutor important When a does not disclose evidence until he introduces it at defendant’s trial and neither defendant nor evidence, his counsel is aware of that the defendant does all constitutionally required objects he can be do when he opportunity that evidence when it is offered and an seeks then illegally to show that it was seized. — — — 6. Searches and Seizures Without Warrant Consent Evi- Suppression — — dence Burden of Proofs. prosecution proving has the burden of that consent to a freely voluntarily given, warrantless search was on a prosecution motion to where the relies on consent justify the search. Appeal Bight Deprivation — — — 7. and Error Constitutional Beview. court, appellate reviewing judge’s ruling An involving a trial deprivation right, obliged an asserted of a constitutional guided to review the evidence and to make its determination judge’s but finding. not controlled the trial factual Appeal Bindings Beview—Weight. and Error — of Bact — appellate give An findings court will a trial court’s factual less ordinary weight than imposed the trial where court has an improper proof burden of on the defendant. Bights—Waiver—-Validity. 9. Constitutional Law — A rights only waiver of constitutional is valid when there is an relinquishment intentional right, or abandonment of known v. Smith Bights—Waiver—Presumption. Law — 10. Constitutional against every presumption indulge reasonable A must court rights. oí constitutional waiver Privacy. Parties — 11. Searches and Seizures —Consent—Third premises seareh, party not consent to a even A third if an invasion of occupies, seareh constitutes he owns or investigation person whom privacy of another already focused. has Warrant —Consent—Volun- 12. Searches and Seizures —Without tariness. knowing, only if is a valid to a warrantless search Consent consent, voluntary meaning that has been freely-given, agreement acquiescence. knowledgeable or — — — Consent Third 13. Searches Warrantless Seizures Party — Voluntariness. home a war- without taken from defendant’s Evidence 17- consent, a.m. when defendant’s or at 4:30 rant purpose of year-old alone and uninformed brother was seareh, permit a investigation he could refuse to or that voluntary consent. was not taken with Dissenting

Danhop, J. — —(cid:127) Admissibility — Con- and Seizures 14. Evidence Searches Credibility. — — Witnesses sent by police taken that a shell court’s determination Trial admissible apartment a warrant was without from defendant’s charge premises, brother, who was because defendant’s voluntarily police, supported shell to had repeatedly brother had where the evidence lied, previously stand that he on the witness admitted judge credibility question malting trial to deter- his testimony that accept mine and his decision officers’ clearly erroneous. seizure was not had been no search and — — — Bule View Evidence Plain and Seizures 15. Searches Admissibility. police admissible open plain view JEvidence in or officer occurred. as no search has J. Huff, Snow Appeal Saginaw, Eugene from 1969, at Grand 3 February 11, Division Submitted 19 (Docket

Rapids. 3,856.) No. Decided October 2, Ulister Smith was convicted assault with intent

appeals. to commit murder. Defendant and remanded for a new trial. Reversed

Kelley, Attorney Frank J. General, Robert A.

Derengoski, George General, Solicitor E. Thick II, Prosecuting Attorney, and Bruce J. Scorsone, Chief Prosecuting Attorney, people. Assistant for the

appeal. Moskal, Robert J. for defendant on Before: J.,P. and Holbrook, Danhoe Levin, JJ. prin-

Levin, P. J. defendant Ulister Smith’s

cipal argument appeal admissibility concerns the

by in evidence of certain items seized alleged contravention of his Fourth Amendment rights. The trial ruled the items were

attorney admissible because the defendant’s failed pretrial timely to make a motion to also because he concluded on the merits that search of the defendant’s was a valid

search. p.m.,

At 11 24, 1965, November officerwas attempted pursue apparent shot as he thief. partner His chased the unidentified man but did apprehend him. The defendant was arrested the

following day charged and later was with and now appeals conviction assault on the officerwith

intent to commit murder.1 shooting, hours after

Five at a.m., 4:30 three

police officers went to the three-room defendant’s (Stat MCLA Ann 1962 28.278). 750.83 Rev § § v. Smith him. were They admitted for apartment looking brother, Cassell, "Willie 17-year-old of the officers Two three testified lived there. who this during trial. said visit They they at the shell from expended shotgun a a single obtained At a.m. one of the the bathroom. wastebasket first and two other offi- who made the visit officers for a apartment visit; returned to the second cers a obtained box of unused at this time they shotgun receipt Cassell for police gave The shells. of unused shells.

box trial officers identified a shell and spent At the ones shells obtained the de- they unused as apartment and these were admitted fendant’s over The shell objection. spent was com- a shell found in back of the store near pared scene of the both of these shells shooting; were have from gun. shown to been fired the same The found. itself never gun not have

The did search warrant either apartment. to the defendant’s On visit the first told were visit, they they Cassell for looking brother, defendant, but did state they for their officers investigation. asserted reason voluntarily that on both visits Cassell admitted them They contended that shells apartment. to the of a not discovered the course search during were said, on the first Bather, of the apartment. they asked whether the defendant they visit Cassell him he went from one accompanied gun looking gun. in the another room first visit that on the Cassell testified further They shell from a wastbasket produced on the second An officer testified that bathroom.2 “plain (see Mc view” door was The bathroom App 226, 234) ; the officers [1968], 13 one of testified Donald way.” out a “bit it was 19 op Opinion the Court

of from box unused shells visit Cassell obtained

it in the bedroom and handed drawer a dresser them. police conducted a that testified

Cassell

apartment thorough contents, its of the search

spent produced shell from the and themselves

shells and obtained the box of unused wastebasket from

He that he had drawer. asserted dresser

pro- spent police before the shell never seen duced it. voluntarily people argue since Cassell

police

gave no shells there search was

properly of the could even if the actions

seizure, Cassell search and be characterized a consented. procedural a familiar rule that a motion

It is

suppress if at in advance trial. made, all, must be

obliged judge is to turn aside from the A trial

separate hearing- a of criminal case to conduct trial

jury, although, admissibility in absence of the

People may do so. discretion, he as a matter

ques- Ferguson (1965), Mich of the One of the trial whether refusal tions before us is separate hearing judge in this case conduct a

an of his discretion. was abuse

attorney asserted that defendant’s At the trial the prior knowledge had ob- no apartment. spent shell in the defendant’s tained a (not previously shell referred mentioned a As (Cassell) receipt given at the was identified to in the gun having which fired the same trial as been

shooting. the scene of the a shell found near fired attorney, Joseph filed McDonald, E. The defendant’s

support trial. of motion for new an affidavit in

him the turned over asserted that Cassell He receipt

pretrial during inter- for the unused shells v. Smith the Court spent shell him that a had also not tell did view but police. by the obtained been attorney knew seizure Since attempt sup not to and chose shells unused

judge obliged press trial evidence, the

objection to the time an introduc entertain out to

spent as to the However, unused shells.3 of the tion

view is taken. a different shell custody from the time of The defendant was

shooting, day the 25, after November arrest the his

April 1967. The facts that trial, the 1965, until

apartment police the defendant’s had visited the

spent brought were not obtained a shell had

preliminary examination. There is noth- out at the

showing ing that the defendant or his in the record

attorney to had reason before the trial believe

police. obtained the been that such

unresponsive, was an difficult Cassell On the stand witness.

attorney’s that the It is understandable

brought light have him would not interview the facts

police two had made visits the that the

they had obtained, and that

receipt in the visit, first evidence not listed on the

given of the second at conclusion visit. unused the Cassell the had obtained The fact the receipt, by the would not revealed shells, which was attorney to fact that other items alerted the have examining Indeed, one taken. not listed had been reasonably receipt all could assume below, concluded that Nevertheless, have appears we spent unused nor the shells ordered neither retrial we have not Although the trial be admitted evidence. are to suppress the unused a motion to obliged of time entertain out admissibility of both the question of shells, he did deeide Furthermore, reason merits. spent on the and unused shells will be when the case pertinent allowing motion is a belated admissibility concerning the us the facts we have before retried and shells; United States Gouled v. see of the unused (1921), 255 United States 647) Amos v. L Ed Ct S L discussed the next 266, 65 S Ct Ed US footnote. op the Court

There is no reason dis- listed. items taken were attorney’s unaware assertion that was believe shell. of the seizure the trial before

orderly conduct of trial, in the The interest

requiring of the rule that a motion is the basis which to

suppress in advance of must be trial, be made

right against defendant’s constitutional balanced

suppressed. illegally In seized evidence to have

prosecutor such as this where the has obtained case

important decides not to evidence and disclose

evidence at the time fact introduction of the before

no reason for the defendant or of trial and there is

counsel to have been aware that such evidence

the defendant does all that he can taken, has been

required objects constitutionally to do when he

at time of the evidence to the introduction

opportunity then in evidence and seeks an offered illegally show it was seized.*

just Having stated, reached the conclusion

ordinarily for a testimonial would be remanded case (46 4 20, Agnello (1925), 34 S Ct v. United States See Zeigler People (1960), 358 145, 409); 4, ALR v. 70 L Ed Kaigler 281, People (Kavanagh, 355, 363-365; (1962), 368 Mich v. 346). Super (1968), NJ A2d ) ; State v. Cullen J. People See, also, See, generally, Gillespie, (1967), 38 Ill 2d 399 NE2d v. Johnson Procedure, Michigan & Criminal Law § People Dombrowski p v. p 1143; Supp 157. 1968 Cum § Cf. People 448; Bass 235 Mich App 445, v. (1968), 10 Mich People Ferguson 90, 95; People (1965), 376 Mich v. 588, 593; v. People Harper 651; 3 Mich App v. (1967), Mich Wilson 316, 320; Heibel 305 Mich States, supra, where defendant’s motion See, also, United Gouled v. before trial and the United States suppression had been denied for nevertheless, held, on the faets of that case it that Supreme Court (pp 312, 313) upon trial : when renewed reconsidered should have been “where, trial, probable it becomes that there has progress of a duty papers, is the trial an uneonstitutionl seizure been admission, objection or a motion for an to their to entertain court question exclusion, and decide the then and to consider their papers return have been where motion to presented, even any practice A rule of must not be allowed trial. before denied Similarly, right.” prevail over constitutional reason technical States, supra, pretrial where no motion been Amos v. United see came trial. faets out at the made Smith Opinion op the Coubt hearing

admissibility on the of the seized evidence. However, there is no need to adhere to that course

ruling In action this case. addition to his

objection untimely, judge the defendant’s

during again stated on two occasions the trial and

explaining his denial of the motion for a new

properly trial the merits the evidence was

prosecutor op- obtained. The has not asked for an portunity to introduce additional evidence. At the trial three apartment officerswho went to

questioned

and Willie Cassell were ex-

tensively regarding ap- the two It visits.5 does not

pear forthcoming additional relevant evidence would be

hearing following

at a a remand.6

denying suppress In a renewed motion to made

judge after Cassell testified at the trial, the stated:

proof “The defendant has burden of on a mo- suppress [and] tion to has not made out case here.”

This was erroneous. On a motion evi-

prosecution rely upon dence where the con- seeks

justify a sent to search, warrantless it has bur- proving freely den of and that the consent was fact voluntarily given.7 reviewing judge’s ruling

In a trial on an issue deprivation involving asserted of a constitutional right, appellate obliged court is itself to review guided the evidence and make its determination separate hearing suppress, been motion Had there on the t<> amplify evi- the record of the trial could not be considered Kaigler, supra, pp 292, dence 297- adduced before trial. here, 299. But since the reeord is the record which the trial admissible, trial concluded on merits that the evidence was record review. which we 6 officers but not The two who visited the who did testify were endorsed as witnesses on the information. 7 Bumper (1968), (88 1788, North 543 v. Carolina 391 S Ct US People People Kaigler, 797); supra; (1968), 20 L Ed v. Shaw 2d v. 558, App 9 Mich 565. App 359 19 Mich

368 Opinion op the Coubt by judge’s tbe trial factual de- controlled but judge’s case the trial In this deter- termination.8

weight we is entitled to less than would mination

imposed give improper ordinarily it since on the defendant.

proof burden

by regarding consent to a search a de-

The law

party significantly af- a third has been fendant or

emphasis shift in the a fundamental fected

application of the Amendment9 announced Fourth

Supreme Court: the United States

property premise interests control “The seize has search and Government seizures be ‘un discredited. Searches been

Amendment even within the Fourth reasonable’ superior property though asserts the Government recognized We have at common law. interest principal object of the Amendment Fourth privacy property, protection of rather than procedural increasingly fictional and discarded have concepts.” property Warden, rested barriers Maryland Penitentiary (1967), Hayden US v. 387 782). (87 L 1642, 18 304 Ed 2d 294, S Ct

evaluating claims that consti- cases,10 In other rights the United States waived, have been tutional 617, 8 619; (CA 10, 1965), 352 F2d Wren v. United States Cf. People 410, 418; v. Pallister (1960), v. Hamilton 359 Mich (1968), 139, 15 Mich 141; Summers (1968), 14 Mich v. Shaw, supra, 346, Court reversed the trial App judge’s In our v. search; to a the defendant consented determination to those in the circumstances were somewhat similar 374 US facts and 33, (83 (1963), 23, 34 S Ker present case. v. California Cf. 726, (1965), 1623, 738); Cox Louisiana 379 US L Ed 10 2d Ct 536, 453, 471); 545, (83 L Ohio fn 8 Ed 2d Jacobellis v. S Ct (84 1676, 793). 184, 188, 189 L Ed 2d (1964), S Ct 378 US through Applicable the Fourteenth Amendment. to the States 6 L Mapp (1961), S Ct Ed 2d v. Ohio 367 US See 1081, 84 ALR2d e.g., See, S Ct Johnson Zerbst Maxey 453; ; Proctor Book 1461) 82 L Ed Company Recently Mich 521. v. Chance Furniture “A Michigan Supreme declared that true waiver an in voluntary by implication. arise tentional, It has been act cannot v. Smith Opinion op the Court Supreme and the Michigan Court Supreme Court have familiar applied the principle that waiver is or relinquishment intentional the abandonment of a 11 In right.* known v. Shaw (1968), Mich 558, we a App where reversed finding that the de fendant had a consented to we search, spoke of the presumption waiver of against constitutional rights and stated for basis the rule which requires tous indulge every reasonable presumption against is (p 562) waiver “not far seek. to It rests human plain fact of experience that easily rights waived are easily lost.” rights

In v. Overall 7 Mich App 153, our held third party may Court not consent to of search, premises even occupied owned and by if him, the search constitutes an of invasion of privacy person upon another whom an investiga- tion has focused.12 Other courts have stated that Kelly voluntary relinquishment right.” of a defined as the known Allegan Judge (1969), 425, Circuit 382 Mich In Miranda Arizona 384 US 436 Ct S 974), Supreme L Ed 2d extended 10 ALR3d the United States concept require police this an officers to advise accused custody right person in to remain of constitutional silent one preconditions any might several of to the use eourt of statement he subsequently and 14. make. See footnotes 13 Stoner The Overall decision was based on v. California People Kaigler, 11 L S Ct 2d and Ed supra. Stoner In the Court held invalid a search of a hotel room authorized night stating (pp 488, by clerk, 489) : rights protected clear by “Our decisions make the Fourth by applications Amendment are not law this Court be eroded strained agency ‘apparent authority.’ of or unrealistic of doctrines As said, unnecessary import has ‘it is ill-advised into surrounding right the constitutional the law to be free from un- developed distinctions, seizures subtle reasonable searches and refined law by not to evolving body private property law the common which, law, almost branch shaped more than other has been * * * validity largely ought distinctions whose is historical we in the fair administration of bow to them the criminal law. comport justly proud do our To so would not claim of protections charged procedural accorded to those with crime.’ [Ci- tations omitted.] important petitioner’s “It bear mind that it was con- right here, night stitutional was at stake and not the which clerk’s .19 Mick Opinion op the Court person search to be valid who consent investigation object must have been is the per- to refuse to his constitutional aware only petitioner therefore, right, which It was a hotel's. nor directly through agent. deed, or or either word waive eould It is true unambiguously clearly consented night clerk nothing in to indicate that the record But to the search. night clerk that the basis whatsoever to believe police had the had by petitioner permit to the to search the been authorized petitioner's room.” the (451 257), (1969), 62, 270 P2d the Su 51 Hawaii v. Matias In State (one justice dissenting) au held on the preme Court of Hawaii may right be waived thority Amendment Stoner that “the Fourth of that, accordingly, right,” by to the and only individual entitled the always Another decision which is insufficient. third-party consent a Mackie impact Stoner United States v. potential of recognized the 223, 1968), 219, 224, but there found (CA 2, 401 F2d the court wicz consent consenting spouse had been authorized to search that the agent the eonsenter was the of records because the personal tax of under in spouse for “tax and the return noneonsenting matters” also, 94 See, (1963), State v. Pina vestigation Ariz 243 joint was a return. (1924), (383 v. 184 167, 169), State P2d and Warfield 854). (198 NW 56Wis Supreme in Hawaii Court in Overall and that of the Our decision Matias, supra, excepted, generally adopted courts have not State v. “apparent authority” “private property de-emphasis and of Stoner’s law” concepts and that a defendant’s constitutional the statements own, is only agent” right is his which he or his “authorized can waive. (1968), (248 432 466 Commonwealth v. Rundle Pa Illustrative A2d closely Pennsylvania Supreme 197), divided Court where held binding on the defendant his wife’s consent to search and valid premises right by enter; had defendant which she the used the authority search invalid on the of would have held the dissenters — — Similarly, (1967), (230 Jenkins v. State see Del A2d Stoner. 262), friend with Supreme girl held Court where the Delaware her, by premises in rented whom he lived defendant con payments, give tributing rent effective to the could consent to search legal tenant; Stoner distinguished the she was sole on because right possession consenting ground that the of control and the party noneonsenting party. in that ease was inferior to that of the Supreme (1969), States This decision was affirmed 395 US of the United Court (89 1677, 253) grounds; S Ct L Ed 2d other fn opinion Court’s states: the remaining adequately contentions been “Petitioners have resolved — — (1967), (230 below. Jenkins State the court See v. Del — — 262), (240 146).” Jenkins State Del A2d and A2d Cupp (1969), (89 In Frazier Ct 22 L 2d 394 US 731 S Ed Supreme recently 084), United States Court held that where the bag jointly and used it with his defendant owned duffel eousin home, bag eousin and left cousin’s eould consent to (the cousin’s) 740): (p its search at the time of his arrest “he clearly authority consent to its search.” The ruled implicating in the search evidence found the defendant was ad- v. Smith Opinion op the Court requested search.13

mit the Still other courts have

Miranda-type specific -warning ruled that unless a related

rights Fourth Amendment a sus-

custody, pect in his consent to a search will not be

Support propositions ap- effective.14 for all these though missible even he had not consented to the seareh on the authority of Harris v. United States Ct US S long objects falling 19 L Ed 2d “It has been settled that plain in position view of an who in officer has a to be subject to have that view are to seizure and be in introduced Warden, Maryland Penitentiary evidence,” p 236, Hayden 294, 299, L S Ct Ed 2d clothing identifying where the Court held pursuit the observation leaving admissible found a hot- weapons. opinion seareh for The Court concluded its allowing bag use cousin to home, (p 740) it at his cousin’s defendant “must taken to have assumed the rislc that would allow someone [the eousin] (Emphasis else to supplied.) look inside.” Although greatly it is to be doubted whether United States Supreme Court, having criticized in Stoner the “unrealistic doctrines ‘apparent authority’ distinctions, developed and ‘subtle and refined ” by meant evolving body common private law,’ law in property assumption introduce still another and novel fietion — already badly law, risk—into this from content at the moment apparent muddled area of the it is Delaware, supra, the Court’s nonaetion in Jenkins v. it is adequate (whether correct) to treat or not interpretations grounded State veloped distinctions, which are on “subtle de evolving body private refined the common law property law.” Cupp Frazier explained ground v. itself be on the that defendant, the cousin of bag the who as a co-user of the duffel con seareh, may thought sented to its have advantage he would obtain some by consenting investigation to a seareh in the which had also upon balancing focused him. right The of a of the co-owner or co-user protect police investigation to the other owner’s or on a third in against himself as best he can right privacy justify user’s of does not reliance party’s consent in such a ease as this one where the eon investigation senter is not one whom an has focused. 13Schoepflin (CA 9, 1968), 390, 399; v. United States 391 F2d Cipres (CA 9, 1965), v. United States 95, 97; 343 F2d Rosenthall v. (CA 6, 1968), (burden Henderson proof gov 389 514 F2d of is on intelligently given) ernment to show that ; consent was Gorman v. (CA 1, 1967), United States (where 380 F2d 158 the defendant is custody, in government the burden on the to show that the consent i.e., voluntary, relinquishment the intentional or abandonment right, (CA particularly of a known 10, 1965), heavy) ; is Wren v. United States (the 352 F2d cognizant 618 defendant must be of rights; government ; his v. in proof) has the burden of United States (DC Mass, Barton 1967), Supp See, 282 also, F 785. the cases regarding right footnote 14 which hold that advice to withhold necessary precondition validity is a consent to the of a consent. (CA 7, 14 United States v. Nikrasch 1966), 740, 744; 367 F2d App 19 on of opinions Michigan Supreme in Court. pears 355; 358 Mich People Zeigler (1960), People v. v. (per Mich 281 T. M. Kaigler Kavanagh, Weaver 241 Mich v. 616.15 J.); Supp 268; United (DC Pa, F United States v. Blalock However, Del, Supp F (DC 1968), 280 636. Moderacki States v. that have concluded have considered the matter most courts which where the consent specific no Fourth relied on that defendant given warning be if the has been need defendant Amendment the Miranda warnings that the Miranda warnings; these have reasoned courts apprise remain of his a defendant are sufficient (CA 1, 158; 1967), 380 State Gorman United States F2d silent. v. 275) ; v. Beal (1968), 92 P2d Idaho 124 Oldham (73 and 787) Rptr and cases cited. 268 Cal Cal therein seizures, as United “The law of searches revealed [the interplay decisions, of Supreme] product is the Court’s States guarantee against and of seizure and the 5th Amendment’s compelled dual unreasonable seareh the 4th Amendment’s person guarantee that no shall be against himself, any be a its criminal ease to witness protect privacy and to purpose being to of the individual against compulsory production protect of evidence to be used him (Citations ad against omitted.) Proof confession is never him. of voluntarily, burden have made and the unless shown to been missible (Citation omitted.) people to show that was. proof of voluntarily held to have been and to be have been made Confessions admissible omitted) proofs (citations when the show that the officers first advised the eonfessor of confessions were made to whom the obligation talk all rights, him he was under no his told against used him his statements would be evidence eautioned * * * him. safeguards evidence thrown around admission into are “Such so, confessions, voluntary help And insure their character. evidence, confessions, incriminating ob- respeet other than facts, seizure, showing by search and under conceivable tained alia, rights, advised his as, inter the accused was first of if he such that, did, not submit to a search and that he need informed fruits thereof to him, consenting against be used in his would may well, contrary in- seareh and seizure the absence involuntary dications, voluntary, be aet secured held to coercion, hence, rights, and, of his ren- waiver constitutional under Zeigler, supra, pp dering admissible.” 363- such evidence supra, People Kaigler, p Similarly, (per T. Kavanagh, see M. concurring, justices reaching J., same result justices other other three reasoning signing separate opinions). different following Supreme pertinent: our Court is also statement goes have case which further than other we found “The Griswold, A 67 Conn 290 LRA In is State v. made one the seareh was with the consent assistance of this case charge office and found the court to be agent. rights had not It was held that defendant’s constitutional fundamentally infringed. I think this is If decision unsound. been the rights by any Tom, the citizen be waived constitutional People v. Smith op the Court principles

Application Overall, stated in requires Kaigler Zeigler, Weaver and reversal

suppression of the evidence seized. case this

consent to a search which not could Cassell already Additionally, on the defendant. focused

upon an examination record that it is clear

given by alleged to have been Cassell consent the was voluntary knowing, freely-given, consent. anot

Returning ease, facts of this noted to the

recognition of the fact that the that, the outset people, places,”16 “protects Amendment Fourth minimal

significance may attached to the he fact

apartment occupied hy the defendant and that the

defendant’s, Cassell’s, and the was the Cassell supported paid the rent and Cassell. defendant More

totality important is the of the facts and circumstances.17 17-year-old negro youth, Cassell,

Willie

policemen by at 4:30 a.m. Even three confronted

spent produced the shell assert, he if, as

police been, this must have shells, unused

request by police. response to a testified, in

right privacy of his in the contents were found the unused shells drawer where dresser protection; not to it is he to the utmost is entitled lightly

must he a A consent to he valid waived.18 hy voluntary means definition, consent,19 this, charge puts temporarily Harry, employs and Dick, whom or (Emphasis property, very indeed.” they hang slender thread his supplied.) 616, 620, 621. People (1928), 241 Mich v. Weaver supra, Shaw, our Court. decided v. Also relevant 347, 351 S Ct US Katz United States v. 576). L19 Ed 2d Fourth Amend under the or consent constitutes waiver “What in each case.” particular circumstances is determined ment Kaigler, supra, p 295. v. 372); P2d (1962), 45 Hawaii 622 Evans State v. See (198 NW (1924), 184 Wis 56 State v. Warfield Zeigler, supra; People supra; People Kaigler, 1951), Shaw, (CA DC, 190 F2d 649. supra; States Judd v. United F2d also, States Waldron v. United (CA DC, See, 19 359 374 App Opinion op the Court acquiescence (see

knowledgeable agreement or text 10). police accompanying Cassell, as the footnote

testimony of show’s,was not informed own officers’ the

investigation. purpose He not ad- of the was

permit a could search.20 that he refuse vised These

age, together hour facts, with Cassell’s

police and the officers’ arrival attendant of the

atmosphere neg'ate finding a of voluntari- coercive

suppose would have It idle to that Cassell ness. is

police any way officers.21 with the in interfered Procedure, Gillespie, Michigan Criminal Law & See, generally, 2 Supp 875, p 161. Cum 1968 § 20 14), it (see if, of have held footnote as a number courts Even person’s validity precondition of an accused to the not an essential specific given have been Fourth to a that he shall consent search warnings, long Miranda warning he was Amendment as right concerning give constitutional the failure to advice appraising in whether factor be considered withhold consent (CA 6, voluntary. alleged Rosenthall v. Henderson consent is People (241 514, 516; (1968), Haskell 41 25 1968), NE2d F2d v. Ill 2d 389 Mass, (DC 1967), 282 F 430). v. Barton United States Cf. States, supra, 785; em Supp Gorman v. United where the court warning right phasized been was Miranda of the to remain silent finding his to search given the both consent defendant voluntary holding specific warn that a search and Seizure ing required. not It, therefore, appears that the law of consensual searches has point pre-Miranda eases progressed at to the confession least person rights in is an accused was advised the sense that whether determining significant the voluntariness of his actions. factor (86 (1966), 737, 1761, 740 S 16 Davis v. North Carolina Ct Practice, 41.07[4], L 8A Moore’s Federal 2d See discussion Ed § pp 41-45. 21 (D DC, 1959), Supp United States v. Roberts 179 F 478 See (consent police midnight freely at held mother to search Shropshire (ED intelligently given) ; La, 1967), United States v. 271 (consent Supp police F early obtained obtained when defendant admitted morning involuntary). finding hour held Also invalid a consent implied apparent authority coercion under the (1921), v. United States Amos officers are US 654); (CA 1963), (41 65 L Pekar v. United Ct Ed States S Higgins 319; (1954), App v. United States (209 315 F2d F2d DC 340 (Fla App, 819); State 811); Talavera v. 186 So 2d (241 430); 41 Ill 2d 25 NE2d v. Haskell Nelson v. United Cf. DC, 1953), (CA States F2d Jennings See, also, 2d Cal P2d daughters 56) (dictum [ages minor two 15 and could not 17] early consent; qiolice morning accompanied arrived — — matron) ; 270) (dictum State Malcom Del A2d (SD 16-year-old consent); could United son States v. Block Smith op the Coukt totality

Looking and circum- of the facts at the responses police request to the stances, Cassell’s

voluntary of the de- waiver not constitute a did

right protected from constitutional to be fendant’s an unreasonable search

and seizure. at a officer identified the defendant The wounded

showup at the 16, 1965, on December one-man

identify lineup him in could not a five-man trial but

just days two after the shoot 26,1965, on November

identify partner ing. could not the defendant. His Although there was other circumstantial evidence implicating beyond defendant it cannot be declared

defendant

a reasonable doubt22 that

illegally been convicted even if the would have

had not been introduced in evidence. seized shells

Accordingly, error not harmless. was

assignment of to be men-

Another error needs

likely to recur tioned because concerns matter

put upon Questions to Willie Cassell a retrial. were

extrajudicial concerning shoes statements about

by alleged defendant. The to have been worn

prosecutor testimony argu- in his referred to this

jury. regarding testimony ment to the The

confusing prosecutor’s argument shoes was and the permissible may well have exceeded bounds. On kept testimony argument remand the should be Roby within the limits in Ruhala set out 379 Mich 102.

Reversed and for remanded trial. new Judge Holbrook that the for the reason concurs illegal. search and seizure fact that the The minor brother of the defendant furnished NY, 1962), handyman Supp (20-year-old 202 F not con could May sent); (Miss, 1967), (son v. State waive cannot So 2d right). defendant’s 22 People Liggett Chapman 706, 716, 717; 378 Mich 18, 23, S L Ct 17 Ed 2d California reh. den. 386 L US 987 S 18 Ed 2d Ct Dissenting J. Dani-icot, shells under the direction of

and unnsed

shell police make it the less a search does not

seizure. (dissenting). opinion The J., Danhof, assumption predicated

majority

particular search in was in fact a this case. there It is

assumption opinion rather than the this

disagree. I

judge when he the motion trial said denied

a new trial:

partly “Although some as a conflict, there was changing some of defendant’s brother of his result police, great weight previous statement to the

no indicated that there was unlawful of search or seizure in this case.

by counsel, the cases cited defendant’s “Unlike here went to defendant’s when the teen-age defendant, brother to talk apartment, opened the door, invited them into the

questions to their defendant, and got answer about gave police, them to the took exhibits receipt for them. opinion “It is the this both at the trial court that the evidence which is on the and now record case, in this shows search and seizure no of defend- premises voluntary absence, ant’s in his but a offer police by of the shells to the brother, charge who was sole of the and the premises apparently trying at the time and was to cooperate establishing the of innocence the de- (Emphasis of or of fendant this offense offense. supplied.) material, “That later to the shells were found be circumstantial evidence in the did not make case, acquisition require original illegal they their or suppressed, opinion of even if court, in the this timely presented a motion to that effect had been

of in advance trial.” v. Smith Opinion by J. Dissenting Danhof, testimony conflict be- discloses record The police brother, officers and defendant’s the

tween repeatedly Willie Cassell And, since Cassell. Willie

he to witness stand that had lied on the admitted

police statements it was for the trial in earlier the

question credibility, to determine

police in favor of upon he this determination I made

say this record that officers. cannot

clearly erroneous. such determination

“plain view” rule that This follows the

open plain or the evidence in where view without is admissible Kuntze officersees

necessity search,

People has occurred, as no search

People 419; 371 Mich v. McDonald

App 13 Mich

(CA9, 1964), United States case of Davis v.

factually F2d similar to the instant case.

eight-year-old daughter admitted two cus- Davis’

policemen agents his home. toms and two One

plain agents view observed wastebasket of the

agent recognized containing as marihuana. what the

pp 304, The court 305: said, of defendant’s is obvious from its denial “It the fact credited that the trier of motion they gone testimony of the officers talking solely purpose for the defendant’s home purpose not for the or intent enter

to him—and arresting premises ing searching him, or Likewise, it is certain without warrant. believed testimony manner of the officers’ as to the entry officers into house and that the intent entry instant of was still but * * * attempt to talk to the defendant. distinguished all from of cases case is “This appellant, by entirely peaceful referred entry no or home, into the search invited minds of the officers to search in the intent entry. legally However, room, once inside 19 Dissenting Opinion by J. Danhof, required remain to tbe blind officers were containing wastebasket fact that a obvious. Tbe plain sight five feet in their within was marihuana they entered and at the time that of the door another wastebasket containing in marihuana was

plain sight was un- at that time in the bathroom by when testified contradicted the it the defendant suppress. well ‘It is established motion open patent is is what and not a search observe light.’ (Citations daylight or in artificial either (citations omitted.) Judge Holtzoff, said As was

omitted) a search and without an un- ‘if, without

premises, entry article lawful into the a contraband * * * premises, the are not is in the seen required eyes their and need walk out to close ” they article saw and leave the where it.’

police agents true and While is that the

supra, Case, officers in the to defend- Davis went

daytime night, ant’s not at I do house

not find this difference should con- factual

trolling. nothing There to indicate that

anything than officersconducted other themselves

by imply, To as it is a lawful manner. done majority, otherwise unfair.

In Brant 260 Iowa NW State v.

621) 2d where the court held that the defendant

entering consented to officers his hotel room and one picked up gun officer defendant’s coat and saw sticking pocket out of no search the inside was properly officer could seize was that which readily observable.1 might

This one case also be considered as which if there was defend search it private ant’s who handed brother as citizen then Party Consent Search See also article entitled “Third (1967). Quarterly 12, L 18-20 U in Wash Seizure” BGf& Co. v. MPSC Transportation particular question police, items to and was no thus, search officers.* upon I cannot find this record that way Either so as was conducted officers a search evidence of the preclude the introduction into or the I would affirm. spent shell unused shells. 613) 50 Misc. 2d NYS2d v. Helmus [de Gutridge Maryland police] ; gave gun wife fendant’s 557) opened Ms looker and wife Md 514 A2d [defendant’s (Tex, 1963), police]; Lucas Texas handed narcoties therein (1963) plastic 368 SW2d reh. den. landlord found [defendant’s gave police]. cheeking masks commodes masks to while and & B CO. v. PUBLIC

G TRANSPORTATION COMMISSION SERVICE Appeals — — — and Carriers Law Procedure 1. Administrative — (cid:127) —(cid:127) Burden Proof. Evidence Grounds complaining requires carrier Motor Carriers Act Vehicle Michigan grounds that a specify which elaims or order unreasonable unlawful Public Service Commission grounds proving clear those and sustain the burden of 479.20). (MCLA satisfactory evidence § 2. Administrative Law and Procedure —Carriers—-Certificate— Interpretation —Reasonableness. defining MicMgan Commission Public Service

An order of the cer- Rapids vicinity” as used in a motor carrier’s “Grand necessity to mean Grand public convenience tificate Rapids affirmed eight miles of Grand Rapids point or a within does not contain clear where the reeord or unreasonable. unlawful order of commission is ^{[1] [2]} 13 Am 13 Am Jur Am Jur Jur 2d, 2d, References 2d, Carriers § Administrative Carriers §§ for Points Law 98, 99. §§ in Headnotes 370-375, 469, 750.

Case Details

Case Name: People v. Smith

Court Name: Michigan Court of Appeals

Date Published: Oct 2, 1969

Citation: 172 N.W.2d 902

Docket Number: Docket 3,856

Court Abbreviation: Mich. Ct. App.