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analyzing whether a defendant was "carrying" a weapon in a suitcase by determining whether the defendant had actual or constructive possession of the weapon
Summary of this case from People v. YoungOpinion
Docket No. 97985.
Decided July 25, 1988. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.
Henry L. Greenwood, for defendant.
The people appeal as of right from an order of the circuit court quashing an information charging defendant with carrying a concealed weapon. MCL 750.227; MSA 28.424. We affirm.
Defendant was charged with carrying a concealed weapon. A preliminary examination was held on July 30, 1986, and defendant was bound over for trial on the charge. The transcript of the preliminary examination was not forwarded to this Court. However, at a hearing on defendant's motion to quash the information the following facts were given to the circuit court. On June 30, 1986, a security guard manning an x-ray machine at the Detroit Metropolitan Airport observed an unmarked suitcase containing a gun. The suitcase was placed on the conveyor belt by a bellhop from the Mariott Hotel. The guard who observed the gun called a deputy sheriff who arrived and also observed what appeared to be a gun. The suitcase was opened and a .357 caliber Smith Wesson nickel-plated revolver was found inside a shaving kit, inside the suitcase. At some point, the details are unclear, defendant spoke up and claimed the suitcase.
Following a bindover, defendant moved to quash the information on grounds that no evidence was presented showing that defendant knew the gun was present or that defendant was carrying the gun in any way. Defendant argued that the "carrying" of the gun must be on or about the person and, in this case, no evidence was presented that the luggage holding the concealed weapon was "on or about" her person. Following arguments, the court granted defendant's motion to quash ruling (1) defendant could not be said to be carrying a concealed weapon since at the time the gun was discovered it was not within the possession of defendant or within her reach, and (2) the corpus delicti rule was violated here since no other proof independent of defendant's statement showed that the luggage belonged to defendant.
We find a holding regarding the circuit court's first ruling dispositive of this appeal and address only that issue. There is an apparent paucity of Michigan law defining the term "carrying" as it is used in the applicable statute. However, our Supreme Court, in defining the term in the context of carrying a concealed weapon in a motor vehicle, noted:
The case law indicates that the concepts of "carrying" and "possession" have much in common. See State v Benevides, 425 A.2d 77 (RI, 1981), which states that a defendant carries a weapon when he exercises some element of intentional control or dominion over it. Most jurisdictions have held that this control need not amount to "actual possession" but that it encompasses "constructive possession" of the forbidden instrument as well. See Brown v United States, 58 US App. DC 311; 30 F.2d 474 (1929). [ People v Butler, 413 Mich. 377, 390, n 11; 319 N.W.2d 540 (1982).]
In Brown, supra, the Court of Appeals for the District of Columbia examined the meaning of the term "on or about" the person as used in the federal counterpart to Michigan's concealed weapons statute. There, the court opined that from this language Congress did not intend to limit prohibition to the carrying of such a weapon on the person, but, instead, intended the term to include weapons held near or in close proximity to defendant, and within his convenient control and easy reach, so that defendant could promptly use it, if prompted to do so by any violent motive. Brown, supra, 30 F.2d 475.
Michigan's concealed weapons statute has similar language and provides that a person shall not carry a pistol concealed on or about his or her person. MCL 750.227(2); MSA 28.424(2). Here, it is clear defendant had no "actual possession" of the gun since it was in her suitcase on a conveyor belt at the time it was discovered. We are thus left with the question of whether we can declare "constructive possession" of the weapon on the facts of this case. On the facts of this case, we cannot declare that the weapon in question was "on or about the person" of defendant. The gun was in a suitcase not within her control and was not in close proximity to her. Accordingly, we cannot declare that the circuit court abused its discretion in quashing the information.
Our ruling is supported by the Michigan Legislature's intent in enacting the concealed weapons statute; that was, to discourage quarrelling persons from suddenly drawing and using concealed weapons. See People v Shelton, 93 Mich. App. 782; 286 N.W.2d 922 (1979). On the facts of this case, this harm would not be prevented by applying the instant statute to defendant's behavior. 49 U.S.C. § 1472 embodies the federal government's response to attempts by individuals to bring weapons aboard planes, either in carry-on luggage or in luggage to be stored in the cargo hold. Possibly, defendant could be prosecuted under this statute. However, defendant's actions in the instant case do not bring her within Michigan's concealed weapons statute.
Affirmed.
HOLBROOK, JR., P.J., concurred in the result only.