Opinion
Docket No. 78300.
Decided January 21, 1986.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for petitioner.
James C. Thomas, P.C. (by Jamie Ann Thomas), and Barry Resnick, for respondent.
This appeal concerns the seizure of respondent's property by the Detroit Police Department. Petitioners brought a petition for forfeiture under MCL 750.308; MSA 28.540 and MCL 750.308a; MSA 28.540(1).
Detroit police officer Joseph Monacelli testified that he and his partner, Thomas McFarland, were on routine patrol the morning of March 27, 1984, in the area of 19617 Van Dyke in the City of Detroit. Monacelli noticed a black Oldsmobile parked near the location and observed the passenger, a Mr. Czerwinski, get out of the car and walk toward the building at 19617 Van Dyke. The officers observed Czerwinski and the automobile leave the scene and twice return.
After the final return, Monacelli observed Czerwinski enter the building and come out 10 minutes later, carrying nothing in his hands. The officers arrested Czerwinski and the driver for breaking and entering. Monacelli then entered the premises to determine if there was any damage. He observed no damage in the building but saw betting slips and other items of gambling paraphernalia.
A search warrant was subsequently obtained and members of the Detroit Police Department seized the items in question pursuant to the search warrant. Officer Elaine Kapelanski testified that she was a member of the crew that executed the warrant and that, while doing so, the telephones were constantly ringing. She answered one of the calls and received betting requests from the caller. She also testified that once, when she was standing by the front door, an envelope containing additional bet requests and money was dropped in the mail slot.
Respondent first argues that the officers' initial entry into the building without a warrant was invalid and that the seized property was improperly admitted into evidence.
Appellate review of grants or denials of motions to suppress evidence is made on the "clearly erroneous" standard. People v Burrell, 417 Mich. 439; 339 N.W.2d 403 (1983); People v Jackson, 123 Mich. App. 423; 332 N.W.2d 564 (1983). A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made. People v Goss, 89 Mich. App. 598; 280 N.W.2d 608 (1979).
US Const, Am IV protects against unreasonable searches and seizures. Generally, searches without a warrant are held unreasonable. Nonetheless, an exception to the warrant requirement occurs when the search and seizure is of items in plain view. People v Whalen, 390 Mich. 672; 213 N.W.2d 116 (1973). The "plain view" doctrine applies when an officer is rightfully in a position where the evidence is plainly visible. The initial intrusion must be justified, and discovery of the evidence must be inadvertent. Coolidge v New Hampshire, 403 U.S. 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971); People v Harden, 54 Mich. App. 353; 220 N.W.2d 785 (1974).
We must determine whether there were sufficient "exigent circumstances" to warrant the officers' presence inside the building. Respondent correctly states that People v Dugan, 102 Mich. App. 497, 503; 302 N.W.2d 209 (1980), establishes three kinds of probable cause in exigent circumstance cases that permit a search without a warrant:
"The `exigent circumstances' exception provides that when the police have probable cause to believe that a search of a certain place will produce specific evidence of that crime (the foundation requirements for issuance of a search warrant), there is no need for a warrant if the police also have probable cause to believe that an immediate warrantless search is necessary in order to (1) protect the officers or others, (2) prevent the loss or destruction of evidence, or (3) prevent the escape of the accused. People v Harris, 95 Mich. App. 507, 510; 291 N.W.2d 97 (1980). See United States v Chadwick, 433 U.S. 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977), People v Plantefaber, 91 Mich. App. 764, 770; 283 N.W.2d 846 (1979)."
Furthermore, our research, although not yielding a case with the same set of facts as the case at bar, indicates that there is a clearly established rule that public safety officials may enter a building without a warrant in order to protect persons or property, or to determine if there is a person in the premises in need of assistance. Michigan v Clifford, 464 U.S. 287; 104 S Ct 641; 78 L Ed 2d 477 (1984); Michigan v Tyler, 436 U.S. 499; 98 S Ct 1942; 56 L Ed 2d 486 (1978); People v Reed, 112 Mich. App. 693; 317 N.W.2d 228 (1982).
In Tyler, the Court established a rule concerning entry into a building following a fire to investigate the fire:
"In summation, we hold that an entry to fight a fire requires no warrant, and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches." 436 U.S. 511.
A different situation was presented to this Court in Reed. In that case, the police were summoned to an apartment after a tenant discovered his roommate and stereo missing, and blood, human flesh, and bloody towels in the bathroom. The police found blood in the stairwell and on the door leading to the defendant's upstairs apartment. The police entered the apartment without a warrant and discovered the victim's body. This Court affirmed the circuit court's ruling that the entry without a warrant was allowable since the officer could reasonably conclude that there was an injured person in the defendant's apartment in need of immediate aid.
After considering these cases, we believe that the appropriate rule to apply to the instant case is that, in addition to the factors stated in Dugan, supra, a police officer may enter a building within a reasonable time following a breaking and entering in order to (1) secure the premises against further intrusion, (2) determine if the burglars set a fire, planted an explosive, etc., such that immediate action to prevent further property damage or personal injury is necessary, or (3) aid a victim in the building who may be injured or restrained.
There was a need to secure the premises. As discussed above, such a motive is a permissible reason to make an entry into a building without a warrant.
Another reason for the entry, given by Officer Stefanko, was that they would also check to determine if the perpetrators had placed a bomb or the like in the premises. This, of course, would necessitate checking every room. Furthermore, it is not entirely out of the realm of possibility since Czerwinski had not removed any property from the building. Thus, it would be reasonable for the officers to conclude that Czerwinski had gained entry for some illicit purpose other than theft. We conclude that it establishes a sufficient reason to justify the intrusion. Under the circumstances of this case, we are not left with the firm conclusion that a mistake has been made. The decision of the trial court finding the initial entry valid is affirmed.
Respondent also argues that the trial court erred in ordering the forfeiture of the computer equipment, which had not been removed from the packing boxes. Respondent's theory is that the computer equipment belonged to the son of the owner of the premises and was merely being stored inside the building. Respondent contends that it was not shown that the computer equipment was connected to the gambling operation.
The trial court made a finding of fact that the computer equipment was subject to forfeiture. Findings of fact in a bench trial will not be disturbed on appeal unless clearly erroneous. MCR 2.613(C), formerly GCR 1963, 517.1; McRaild v Shepard Lincoln Mercury, Inc, 141 Mich. App. 406; 367 N.W.2d 404 (1985).
MCL 750.308; MSA 28.540 authorizes a police officer:
"to take into his custody all the implements, apparatus or material of gaming as aforesaid, including any articles, equipment, furniture, loud speakers and amplifying apparatus, adding machines, calculators, money changers and boxes and money found therein or in or on gambling apparatus, or material used in connection with or the promotion of gambling or a gambling place."
MCL 750.308a; MSA 28.540(1) provides for the disposition of seized property.
We noted the broad applicability of these sections in Michigan ex rel Comm'r of State Police v One Helix Game, 122 Mich. App. 148, 155; 333 N.W.2d 24 (1982):
"The broad provisions in these sections allow for much more than the destruction of only games of pure chance. Any items used to promote gambling or a gambling place may be seized and ordered destroyed."
After having reviewed the trial transcript, we cannot conclude that the trial court was clearly erroneous in finding that the property was subject to forfeiture.
We have considered respondent's remaining issues and conclude that they do not merit reversal.
The decision of the trial court is affirmed. Costs to appellee.