Opinion
Docket No. 1,425.
Decided March 28, 1967.
Appeal from Kent; Vander Wal (John H.), J. Submitted Division 3 November 9, 1966, at Grand Rapids. (Docket No. 1,425.) Decided March 28, 1967.
Neal Alan Henderson was convicted of robbery armed. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Sherwin J. Venema, Assistant Prosecuting Attorney, for the people.
Richard G. Leonard, for defendant.
Appellant was convicted by a jury of the crime of armed robbery, committed on March 19, 1965. The facts of the events of that night are basically agreed upon. The dispute in this case concerns the legal consequences of certain acts.
CLS 1961, § 750.529 (Stat Ann 1965 Cum Supp § 28.797). — REPORTER.
Shortly after 8 p.m., on March 19, 1965, the complaining witness, a free-lance used car dealer, was driving with his wife past the used car lot where he had parked some used automobiles. He stopped and got out of his automobile, leaving his wife inside. He noticed that a 1965 Corvette automobile which was on the lot had its engine running and some one was inside it. There were also two young men walking together around the lot, looking at automobiles. These young men were later presented as prosecution witnesses. The complaining witness talked with the two young men and asked them to observe him as he approached the Corvette, explaining that he believed the Corvette was being stolen. As the trio approached the Corvette, the person inside was observed to be the appellant, Neal A. Henderson, who was, from the evidence, unknown to any of the men before that time. In the ensuing conversation, the complaining witness questioned the appellant as to why he was in the automobile. The appellant told the story of his recent employment by the owner of the used car lot. The group started walking towards a telephone, some 600 feet away, to call the lot owner to verify this story. The transcript contains the testimony of the complaining witness as follows:
"We walked approximately 50 feet and he drew this gun from his pocket which was a very small gun, you could barely see it. He had it in the palm of his hand, and he says, `all right, that is far enough' and of course then none of us tried anything. He just happened to fall back a few feet, he drew this gun and we stopped * * * when he drew this gun, he says, `I don't know what I am going to do with you guys, but stop right here,' so I also told Lake and Stephens, I said `look fellows, don't try anything,' I said this in front of Neal Henderson, so we didn't try anything.
"During this time my wife was in the car, in the front of the lot which is approximately 50 feet away from where we were standing, and then he also as he had the gun on us for a while, he stood there then he says `do you guys have any money,' Lake and Stephens answered and said `no.' I says `I have a little bit.' At gun point he said again `well give it to me,' and I drew out, I believe it was, $15 which I gave to him at gun point, and then he says `is this all you have?' I says, `no, I have a couple of dollars more,' he said `well give me that I will need that for gas,' which I had $6 more, I believe at the time it was, I handed him $5, I said, `why don't you let me keep this $1 so I can get gas in my car?' which he allowed me to do. At this time the three of us were still standing there at gun point. After he asked us this and he asked Stephens or Lake, I am not certain which car it was, they had a car in front of the lot, he said, `may we leave?' he said, `definitely not.'"
The testimony of the complaining witnesses was substantiated by the two young men, Lake and Stephens, with one exception, that some time between the time that the appellant "asked" for the money and the time when the money was actually handed over to the appellant, the appellant put his gun into his pocket with his hand remaining in the pocket with the gun.
The appellant then directed the three men to get into the complaining witness's automobile with the complaining witness's wife. They were given instructions by the appellant where to go. The appellant followed them in the Corvette from the used car lot. After a chase through the city traffic of Grand Rapids and a high-speed chase on the expressways in that area, the automobile containing the four innocent parties in this incident was able to "lose" the Corvette driven by the appellant. The complaining witness found a telephone and called the local police department, reporting the incident, the description of the Corvette, and its license number.
The description of the Corvette and its license number were broadcast to all the State law enforcement units. The undersheriff of Mecosta county observed a Corvette pulling into a gasoline station at about 9:30 p.m. the next evening. The officer recognized the automobile as fitting the description broadcast as the stolen automobile wanted in connection with an armed robbery. After confirming the description and the license number of the Corvette with the Grand Rapids police, the officer left his cruiser and approached the appellant, who was standing near the Corvette in the gasoline station. The appellant was asked for his driver's license and automobile registration, but stated that he had "left them home." The officer noted, during this conversation and through the window of the Corvette, that there was no key in the ignition of the Corvette and that the ignition switch had been wired in a manner often used by auto thieves to start an automobile without a key. The officer asked if the appellant minded if the officer looked in the automobile; the appellant replied, "It sits right there, go ahead." A search of the Corvette revealed a small, loaded hand gun behind the front seat. The officer then searched the appellant and found an additional clip of bullets of the same caliber as the hand gun. This gun was subsequently used as people's exhibit #1 in the trial of the appellant on the charge of armed robbery.
This appeal from conviction is based upon two theories: First, that the gun used as the people's exhibit was gained from an unlawful search and seizure and, therefore, was inadmissible as evidence. Under this theory, the appellant seeks to have the finding of guilt set aside and the case remanded for a new trial. The second theory is that the weight of the evidence did not sustain the verdict of guilty of armed robbery. This theory argues that the evidence showed that the complaining witness voluntarily gave the money in question to the appellant and the evidence does not show that the appellant took the money from the complainant. Under this theory, the appellant argues that the case should be dismissed.
The question of search and seizure from an automobile in Michigan has recently been covered extensively by the Michigan Supreme Court in the case of In re Winkle (1964), 372 Mich. 292, certiorari denied (1965), 379 U.S. 645 ( 85 S Ct 611, 13 L ed 2d 551). That case had been remanded to the Michigan Supreme Court upon the suggestion of the attorney general of Michigan, after certiorari had been granted, for a reconsideration of the decision in People v. Winkle (1960), 358 Mich. 551, in the light of the then recent Supreme Court ruling of Mapp v. Ohio (1961), 367 U.S. 643 ( 81 S Ct 1684, 6 L ed 2d 1081, 84 ALR2d 933). It is interesting to note that the reconsidered decision in the Winkle Case, supra, produced three separate opinions; however, any of the opinions would support an affirmation of this case. We need not repeat the history of search and seizure in Michigan, as was so ably set out by Mr. Justice KELLY in the case of In re Winkle. The position that an automobile is a special case under the Federal search and seizure law has long been established. See Carroll v. United States (1925), 267 U.S. 132 ( 45 S Ct 280, 69 L ed 543, 39 ALR 790). In upholding the search registered in the case of In re Winkle, Justice KELLY made it clear, emphasizing a fact very similar to a fact in this case, that Mapp v. Ohio, supra, has not changed the special treatment of automobiles under the search and seizure provisions of the Constitution. He stated, at page 316:
Winkle v. Bannan (1961), 368 U.S. 34 ( 82 S Ct 146, 7 L ed 2d 91).
"A search conducted in Michigan comparable to the Mapp search would not have been condoned under our constitutional law, but would have been condemned. Winkle's home was not searched, but an automobile he was driving which was not registered in his name."
Justice SOURIS, in his concurring opinion, on page 327, states the applicable law, that a search of an automobile could be made if police officers "had probable cause to believe * * * that the automobile had been stolen."
In Preston v. United States (1964), 376 U.S. 364 ( 84 S Ct 881, 11 L ed 2d 777), the United States Supreme Court reversed a conviction where an automobile had been searched after it had been towed to the police garage and the driver had been incarcerated. Mr. Justice Black, speaking for a unanimous court, at pages 367 and 368 in that opinion, stated:
"We may assume, as the government urges, that, either because the arrests were valid or because the police had probable cause to think the car stolen, the police had the right to search the car when they first came on the scene."
There is no question that in this case the officer had probable cause to believe the Corvette had been stolen. A description of the auto plus the exact license number had been broadcast as the stolen automobile wanted in connection with an armed robbery. Under the circumstances presented, the officer would have had no justification for failing to make the search that he did.
We find the theory advanced by the appellant that the complaining witness voluntarily gave the money to the appellant and that, therefore, the jury had no basis for a conviction of armed robbery to be totally without merit.
There was no reversible error committed in the admission of evidence, nor were the constitutional rights of the appellant violated by the search and seizure. The record indicates no miscarriage of justice.
Affirmed.
BURNS and NEWBLATT, JJ., concurred.