People v. Kolaski

382 N.W.2d 833, 147 Mich. App. 636
CourtMichigan Court of Appeals
DecidedDecember 16, 1985
DocketDocket No. 81519
StatusPublished
Cited by1 cases

This text of 382 N.W.2d 833 (People v. Kolaski) 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. Kolaski, 382 N.W.2d 833, 147 Mich. App. 636 (Mich. Ct. App. 1985).

Opinions

Danhof, C.J.

The people appeal by leave granted from the trial court’s order of September 10, 1984, dismissing a charge of operating a motor vehicle under the influence of intoxicating liquor, third offense, MCL 257.625; MSA 9.2325, and two related charges. We reverse the trial court’s finding of entrapment, vacate the order dismissing this case, and remand for reinstatement of the charges.

On June 6, 1984, at approximately 2:00 a.m., two [639]*639Michigan State Police officers stopped a van, driven by Debbie James, in which defendant was a passenger. Trooper Schneider arrested James for driving while intoxicated, took her to the patrol car, and informed her that she could have the van towed at her expense or secured and left at the scene. She decided to leave it on the rural highway, south of Cheboygan and approximately three miles from the Dodds’s house, her intended destination. When another officer asked for identification, defendant stated that his license was suspended, and he presented other proof of identification. Defendant looked intoxicated but was not arrested. Defendant was then told of James’s arrest and her decision to leave the van. Defendant asked the officers for a ride into town or to a telephone, but they refused. At the officers’ request, defendant secured the van. He gave James her purse, but apparently kept the keys. After the patrol car left, defendant drove the van and, as he pulled into the Dodds’s driveway, was arrested for drunk driving by an officer of the Cheboygan County Sheriffs Department.

The testimony of James and defendant conflicted with that of Trooper Schneider over whether James had told defendant to "sit tight” while James called someone to get the van. Another conflict arose from James’s testimony claiming that a radio transmission, "we got him”, was received by the patrol car on the way to the State Police post. Trooper Schneider denied receiving that communication and denied making statements concerning defendant’s arrest on the return trip.

After an evidentiary hearing on defendant’s motion to dismiss, the trial court concluded that defendant had been entrapped, making the following fact findings and reasoning:

[640]*640"Gentlemen, on the question of entrapment on the motion to dismiss, I find it a very interesting question. I’ll say that I would agree with the defense on the point that the police have a continuing duty to prevent crime, and they may also have a duty to generally assist people, but I don’t rest my decision on that duty. I rest it on their duty to prevent crime.
"Now, in this particular factual setting, according to the evidence as I understand it, the police left a drunk defendant — Mr. Kolaski — who they knew didn’t have a driver’s license since it had been suspended, on a public highway with a vehicle; and, of course, there’s a dispute as to whether or not they knew the keys were there at 2:15 in the morning.
"The test in the case of People versus Killian, 117 Michigan Appeals 220 at page 220 (sic), is whether or not the police conduct was likely to create or instigate a crime. Well, there’s been some testimony about the radio, and I don’t find it necessary to rule on that in order to reach a conclusion; and besides that, it would seem to me that that issue is somewhat ancillary to the basic question, which is: Was the conduct reprehensible. Well, whether they talked on the radio or what they said — I mean, if there was some conspiracy, I would obviously consider that reprehensible.
"I don’t find any such conspiracy, but I do find that, first of all, at the scene of the stop, the policy knew that or should have known, according to the testimony— Number 1: that the defendant was intoxicated and a passenger in the vehicle which they’d stopped and arrested the driver of the vehicle, who is Debbie James. They knew the car or her van was left at the scene. They knew that defendant’s driver’s license had been suspended and he was intoxicated and his judgment impaired. They thought he had given the keys back to Miss James but, in fact, the keys were there; and I think therein lies the rub.
"The police took control of the vehicle and the keys when they — Number 1: announced to Debbie James what her options were with regard to disposition of her vehicle. They’ll either secure it at the scene or they’ll call a wrecker to haul it away. Well, as a matter of fact, the vehicle was not secured in the sense that the keys [641]*641to it were left with Mr. Kolaski, and they further permitted the exchange of the purse and the keys between defendant directly and the witness James; therefore, they placed the keys in the status which permitted them to get into defendant’s hands, in effect.
"Certainly the owner of the car, Mrs. James, had no longer — or any control over the vehicle. She was under arrest and there was an obvious and apparent risk and a danger to the public to allow Mr. Kolaski to drive the car. And I’m not saying that the officers intended that or approved of that in any way, but I think the bottom line is that if it was wrong — if it’s wrong for Mrs. James to drive drunk or anyone to drive drunk, it certainly also applies to Mr. Kolaski; and in his condition, it’s not surprising that he would have opted to drive the car rather than choose the more rational and safe alternative of walking.
"I would make another point here. I don’t consider the distances involved, from the standpoint of whether he could have walked to the Dodd residence, particularly significant, because his judgment was impaired. It could have been that it was fifty miles out in the wilderness, and then it would obviously be, in that case, an even stronger case where some determination should have been made about how defendant planned to get home. I think that the police should have verified that plus where the keys were before they left the scene.
"For all of those reasons, it’s my considered opinion that the defense of entrapment is appropriately raised in this case, and I would dismiss the case on that basis. The motion is granted.” (Emphasis added.)

Entrapment is an issue to be determined by the trial court. People v D’Angelo, 401 Mich 167, 173-174; 257 NW2d 655 (1977). The trial court is required to make specific findings of fact which will be reviewed under the clearly erroneous standard. D’Angelo, supra, p 183. In this case, we accept the trial court’s findings of fact but reverse the finding of entrapment which the trial court based upon the officers’ duty to prevent crime, because it is erroneous as a matter of law.

[642]*642Although all may agree with the premise that State Police officers have a general duty to prevent crime, the trial court cited no legal authority, and we find none, which would impose a duty upon the officers to arrest or detain defendant in order to prevent him from operating the van. See MCL 28.6; MSA 4.436. Similarly, no legal authority is provided which would impose upon State Police officers a duty to provide a ride to an individual observed in an intoxicated condition.

Michigan has adopted the objective test of entrapment with express approval given to the minority view articulated by Justices Roberts, Frankfurter, and Stewart of the United States Supreme Court and the minority view articulated by Justices Marston and Campbell of the Supreme Court. People v

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Bluebook (online)
382 N.W.2d 833, 147 Mich. App. 636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kolaski-michctapp-1985.