People v. Dowdy

536 N.W.2d 794, 211 Mich. App. 562
CourtMichigan Court of Appeals
DecidedJune 23, 1995
DocketDocket 159129, 161111
StatusPublished
Cited by8 cases

This text of 536 N.W.2d 794 (People v. Dowdy) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Dowdy, 536 N.W.2d 794, 211 Mich. App. 562 (Mich. Ct. App. 1995).

Opinions

Per Curiam.

In Docket No. 159129, a jury convicted defendant Dowdy of two counts of first-degree felony murder, MCL 750.316(l)(b); MSA 28.548(l)(b), one count of first-degree premeditated murder, MCL 750.316(l)(a); MSA 28.548(l)(a), two counts of armed robbery, MCL 750.529; MSA 28.797, one count of arson, MCL 750.72; MSA 28.267, and one count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). In Docket No. 161111, defendant Patten was convicted by a jury of three counts of first-degree premeditated murder, one count of attempted murder, MCL 750.91; MSA 28.286, three counts of armed robbery, one count of assault with intent to commit armed robbery, MCL 750.89; MSA 28.284, one count of arson, and one count of felony-firearm. Both defendants appeal their convictions as of right. We agreed to consolidate these cases and we now affirm the convictions.

i

On March 31, 1992, Vincent Vasquez, Roberto Garza, and another man were in an apartment from which crack cocaine was being sold. Later that evening, three other men arrived and announced that they were robbing the men in the apartment. The three robbers bound Vasquez, Garza, and the other man using duct tape, beat [565]*565them, and repeatedly asked them where the money was kept. The three robbers waited for the arrival of another man, Marcus Ferguson. When Ferguson arrived, the robbers beat him, took his money, and tied him with duct tape. The robbers then splashed gasoline on the victims and lit them afire. Ferguson, Garza, and the other man died. Vincent Vasquez survived.

At the hospital, Vasquez told the police that he knew one of the robbers was Johnny Gipson. He described Gipson and explained that he had worn a University of Michigan Wolverine jacket with a slash across the back. Vasquez also testified that he knew the other robbers were Gipson’s uncles. Although he did not know the names of Gipson’s uncles, he had met them before and knew their nicknames. At trial, he identified the two uncles as defendant Dowdy and defendant Patten.

Vernon Garza, the brother of Roberto, had been at the apartment earlier that night. When Vernon Garza arrived, Johnny Gipson, an acquaintance of the victims, was already there. Gipson had just come to the lobby to let two other men into the building. Garza had never seen the two men before, but he already knew Johnny Gipson. At trial, Garza identified the two other men as defendant Dowdy and defendant Patten.

The police questioned Vasquez at the hospital. Vasquez described the three robbers and gave their nicknames. He told the police that Vernon Garza would know where the men . lived. The police went to an address supplied by Vernon Garza and knocked on the door. The police claim that a resident of the house voluntarily allowed them to enter. The police then arrested everyone in the house, including Johnny Gipson and defendant Dowdy. According to the police, while they were arresting the residents, a baby started crying [566]*566upstairs. When one resident asked if he could take care of the baby, the police accompanied him upstairs. On a bed in one of the rooms upstairs, they saw a University of Michigan jacket matching the one described by Vasquez. The police admitted that, at this time, they had neither an arrest warrant nor a search warrant.

At this point, the police called Recorder’s Court judge Richard Cunningham and asked him to sign a search warrant for the house. Judge Cunningham discussed some items in the warrant and expressed his concern about the existence of probable cause to search the house. Judge Cunningham testified that he only determined that probable cause existed after the police , told him that they had entered the house previously and seen the University of Michigan jacket. He stated that, without the evidence from the prior entry, there was no probable cause. With the warrant signed by Judge Cunningham, the police entered the house a second time and confiscated the University of Michigan jacket.

Recorder’s Court judge Robert Evans heard the motion to suppress the evidence found in the second visit to the house. Judge Evans found that the initial entry without a warrant was improper. Judge Evans stated that he did not believe the residents of the home consented to let the police in. He also disputed police testimony that they only went upstairs to take care of the crying baby. However, Judge Evans stated that probable cause existed for the search warrant even without the evidence from the initial entry without a warrant.

Both defendant Dowdy and defendant Patten confessed to the crimes while in police custody. At trial, Johnny Gipson testified for the prosecution. Separate juries convicted the defendants.

[567]*567II

Defendant Dowdy first argues that the trial court erred in denying hi§ motion to suppress evidence found in the search. He claims that the trial court, with Judge Evans presiding, was required to grant deference to Judge Cunningham’s decision. At the suppression hearing, Judge Cunningham testified that, without the evidence that the officers saw the University of Michigan jacket in the house during the first visit, he would not have signed the warrant. We do not consider Judge Cunningham’s testimony to be a "decision” to which the trial court must grant deference.

Appellate scrutiny of a magistrate’s decision involves neither review de novo nor application of an abuse of discretion standard. When reviewing whether probable cause existed for issuance of a warrant, this Court must ask whether a reasonably cautious person could have concluded that there was a substantial basis for the finding of probable cause. People v Russo, 439 Mich 584, 603; 487 NW2d 698 (1992).

Vincent Vasquez told the police that the perpetrators included a man named John and his two uncles. During the crime, John wore a University of Michigan Wolverine jacket with a slash across the back. Vasquez informed the police that Vernon Garza knew where John lived. Vernon Garza then showed the police the house where John lived. The police had the names of both Vasquez and Garza. Identifiable citizens and crime victims are presumably reliable. People v Powell, 201 Mich App 516, 522-523; 506 NW2d 894 (1993). We find that a reasonably cautious person could find a substantial basis for probable cause for the search.

Defendant Dowdy argues that the trial court based its determination on erroneous facts because [568]*568it stated that John had been seen at the house a few hours earlier. Although the trial court did indicate that John was at the house a few hours before the warrant was issued, and that information was not in the search warrant, this error was harmless. Probable cause to search is concerned with whether certain identifiable objects are probably to be found at the present time in a certain identifiable place. Russo, supra at 605. Regardless of whether John was spotted at the house a few hours earlier, the police would probably find John’s jacket at John’s house.

iii

Next, defendant Dowdy argues that his custodial confession should have been suppressed. Defendant Dowdy was arrested during the initial entry into the house without a warrant. Defendant Dowdy maintains that, because the initial entry into the home was unconstitutional, his subsequent statement should be suppressed as a result of that illegal entry.

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536 N.W.2d 794, 211 Mich. App. 562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dowdy-michctapp-1995.