321 N.W.2d 742 | Mich. Ct. App. | 1982
PEOPLE
v.
THOMAS
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people.
Craig A. Daly, for defendant on appeal.
Before: BRONSON, P.J., and R.M. MAHER and F.X. O'BRIEN,[*] JJ.
PER CURIAM.
Defendant pled guilty to carrying a concealed weapon, MCL 750.227; MSA 28.424, and was sentenced to 40 to 60 months in prison. Defendant tendered his plea on condition that he be permitted to challenge on appeal the legality of *588 the search that uncovered his concealed weapon. We approve of the use of such conditional pleas since they save the state the expense of a "possibly needless, expensive and time-consuming trial". People v Ricky Smith, 85 Mich App 32, 48; 270 NW2d 697 (1978).
On April 22, 1979, two police officers were approached by a woman who informed them that a man had just "pulled a gun" while standing next to her. She pointed out defendant, who was standing at a bus stop, as the culprit. Defendant then proceeded to board a bus. The policemen pulled over the bus, boarded it, asked defendant to step off, and then conducted a pat-down search. The search turned up a loaded revolver. The woman had refused to tell the police her name and address, and refused to join them in the police car.
We believe that this search is justifiable as a "stop-and-frisk" under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). People v Tooks, 403 Mich 568, 577; 271 NW2d 503 (1978), provides the proper standard of review of a "stop-and-frisk" prompted by information received from a person who refuses to identify herself:
"In determining whether * * * information from [a] citizen-informant carrie[s] enough indicia of reliability to provide * * * officers with a reasonable suspicion under the standards of Terry and Adams [v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972)], we must examine three related factors: (1) the reliability of the particular informant, (2) the nature of the particular information given to the police, and (3) the reasonability of the suspicion in light of the above factors."
According to the Tooks Court, the police may properly act on information volunteered by a citizen who refuses to identify herself:
*589 "* * * [T]he informant in this case was unknown to the police and refused to identify himself during the disclosure of information. Defendant asserts that these factors necessarily lead to the conclusion that the information was neither reliable nor credible. We do not agree.
"There is certainly nothing inherently unreliable about a citizen as opposed to a known informant giving information to the police."
Our review of the record reveals that the citizen-informant was at the time of the incident a hard-working member of the world's oldest profession. Consequently, we find her reluctance to identify herself and ride in a police car quite understandable. There were no circumstances tending to suggest to the police that the citizen-informant had fabricated the information she provided, or that she had mistakenly identified defendant. While the information available to the police may well have been insufficient to support a finding of probable cause, they were certainly justified in entertaining a reasonable suspicion that defendant was carrying a concealed weapon. Hence, the "stop-and-frisk" was proper under Terry and Tooks.
Defendant also contends that he was denied his constitutional right to a speedy trial. We need not consider the merits of this argument, since speedy trial claims are waived by a plea of guilty. People v Parshay, 104 Mich App 411; 304 NW2d 593 (1981).
Defendant's conviction is affirmed.
R.M. MAHER, J. (concurring).
I concur in the result reached by the majority, but write separately to express my disagreement with the majority's incredible assertion that a plea of guilty waives a claim of denial of the right to a speedy *590 trial. Such a claim, if successful, means that a trial should never take place; hence, it relates to the state's authority to try a particular defendant. Such a claim is essentially jurisdictional. See People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976).
Nevertheless, on the merits, I find myself unpersuaded that defendant was denied his right to a speedy trial. Accordingly, I join in the affirmance of his conviction.
BRONSON, P.J. (dissenting in part; concurring in part).
I write separately because I do not believe conditional guilty pleas are valid and enforceable. As I said in People v Ricky Smith, 85 Mich App 32, 39-45; 270 NW2d 697 (1978), it is my opinion that the arguments weighing in favor of the use and validity of conditional guilty pleas are outweighed by their adverse effects on the administration of justice. Further, as I said in Ricky Smith, I believe that until there is a definitive rule or statute allowing conditional pleas or, at least, a Michigan Supreme Court decision upholding their validity, in the interests of uniformity in the trial courts, we should not countenance the use of conditional guilty pleas.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
