People v. Futrell

336 N.W.2d 834, 125 Mich. App. 568

• Court: Michigan Court of Appeals
• Decided: May 5, 1983
• Docket: Docket 57823
• Status: Published

Opinions

Bronson, J.

The people appeal as of right from an order quashing the information against defendant. The decision to quash was based on an order granting defendant’s motion to preclude the people from introducing into evidence a handgun found in defendant’s car. Defendant had been charged with carrying a concealed weapon, MCL 750.227, MSA 28.424.

On appeal, plaintiff claims the trial judge erred by relying exclusively on the preliminary examination transcript in deciding defendant’s motion to suppress. This practice was explicitly prohibited by the Supreme Court in People v Talley, 410 Mich 378, 390, fn 3; 301 NW2d 809 (1981). In Talley, the Court declined the opportunity to consider whether opposing counsel may stipulate to the trial court’s sole reliance on the preliminary examination transcript in deciding a suppression motion. Talley, supra, p 392, fn 4.

In the present case, defendant sought a favorable ruling of law on facts adduced from preliminary examination testimony. The people did not dispute these facts which were based on the testimony of police officers; they do not do so now. We do not believe the Supreme Court, in Talley, meant to impose an absolute requirement that an independent hearing be held on every motion to suppress. Where a sufficiently complete stipulation of facts is made, the trial court may decide the motion based on the stipulation. See People v Chernowas, 111 Mich App 1, 3, fn 2; 314 NW2d 505 (1981). In Talley, the Court pointed to two problems which can arise if sole reliance is placed on a review of the preliminary examination transcript: the need for determinations of credibility and the inadequate exposition of constitutionally significant facts, Talley, supra, p 391. See also the concurring opinion by Justice Levin, Talley, supra, pp 393-396. A stipulation of facts eliminates the problem of determining credibility. The facts stipulated to might still, however, be insufficiently detailed to inform the court of all that is constitutionally significant. In such a case, sole reliance on a stipulation would be error. In the present case, however, the people have failed to point to any area in which further elucidation of the facts might advance their position. Under the circumstances, it was not error to decide the suppression question without an independent hearing.

We nonetheless reverse the decision quashing the information and suppressing the use of the handgun in evidence. The trial court ruled that the search of defendant’s car without a warrant was improper due to the absence of exigent circumstances justifying an immediate search.

Under federal law, the absence of exigent circumstances is irrelevant when police have probable cause to believe that evidence of crime will be found in a lawfully stopped automobile. United States v Ross, 456 US 798; 102 S Ct 2157; 72 L Ed 2d 572 (1982); Carroll v United States, 267 US 132; 45 S Ct 280; 69 L Ed 543 (1925); Chambers v Maroney, 399 US 42; 90 S Ct 1975; 26 L Ed 2d 419 (1970).

In the present case, a restaurant employee observed the butt of a handgun, apparently carried by defendant in a shoulder holster. She activated a silent alarm, to which the police responded. Shortly after the alarm was activated, defendant was seen by a restaurant patron walking out to his car, opening the door, bending down and momentarily disappearing from sight. When police officers arrived on the scene, they frisked defendant, but found no handgun. They interviewed the restaurant employee and the restaurant patron who told them of defendant’s visit to his car. An officer went to the car, opened the door and found the handgun in a shoulder holster under the front seat.

The reasonable inferences which could be drawn from the statement of the restaurant patron gave police probable cause to believe that evidence of a concealed weapons offense would be found in defendant’s car. Had police not immediately searched the car, it could have been moved, resulting in the loss of the evidence. Because of the car’s mobility, exigent circumstances existed justifying the seizure of the car while a magistrate’s approval for the search was sought. The essence of the "automobile exception” is the United States Supreme Court’s determination that, given these circumstances, police need not seek a magistrate’s approval before they conduct a search. In Ross, Justice Stevens explained the justification for the Carroll-Chambers automobile exception allowing police to search the car immediately:

"These decisions are based on the practicalities of the situations presented and a realistic appraisal of the relatively minor protection that a contrary rule would provide for privacy interests. Given the scope of the initial intrusion caused by a seizure of an automobile— which often could leave the occupants stranded on the highway — the Court rejected an inflexible rule that would force police officers in every case either to post guard at the vehicle while a warrant is obtained or to tow the vehicle itself to the station.” Ross, supra, p 807, fn 9.

He cited the following rationale from Chambers v Maroney:

" 'For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.’ ” Ross, supra, p 807, fn 9.

We find no constitutional significance in the fact that defendant’s car was parked in the restaurant’s lot and that he was a short distance from it at the time he was confronted by the police. See People v Bukoski, 41 Mich App 498; 200 NW2d 373 (1972); United States v Troiano, 365 F2d 416 (CA 3, 1966), cert den 385 US 958; 87 S Ct 396; 17 L Ed 2d 303 (1966); United States v Callahan, 256 F Supp 739 (D Minn, 1964); Commonwealth v Katz, 202 Pa Super 629; 198 A2d 883 (1964); North v Riverside County Superior Court, 8 Cal 3d 301; 502 P2d 1305; 104 Cal Rptr 833 (1972); United States v Milham, 590 F2d 717 (CA 8, 1979); State v Bottelson, 102 Idaho 90; 625 P2d 1093 (1981); United States v Bellina, 665 F2d 1335 (CA 4, 1981); United States v Cobler, 533 F Supp 407 (WD Va, 1982); State v Januszewski, 182 Conn 142; 438 A2d 679 (1980); State v Martin, 87 NJ 561; 436 A2d 96 (1981). The facts of this case and of the cases cited here are not even remotely similar to those considered in Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971).

We reverse the orders quashing the indictment and suppressing the use of the handgun in evidence.

Cynar, J., concurred.