Petition for Writ of Certiorari — Michigan v. White

8

Indeed the cireumstances in White were even more exi-

gent than those in Chambers in this last regard because

all four oceupants of Chambers car were arrested and

their friends were not alerted to their quandary, See

Cardwell, Despite the fact that the Chambers’ vehicle was

stopped on a pubiie read and the White vehicle was parked,

the White vehicle was more likely to be moved from the

jurisdiction in frustration of any forthcoming seareh. To

say that the poliee eould have prevented the wife from

removing the vehicle from the jurisdietion while a war-

rant was sought is to admit to the very erux of Chambers,

An effective search requires either an immediate seareh

or what effeetively constitutes a seizure of the automobile.

The Court in Chambers sees no difference between the

two.

Furthermore there is a lesser intrusion in White than

in Chambers or Coolidge insofar as the wife is at least

given use of the automobile because an immediate seareh

rather than a seizure of the vehicle is cimploved.

The Michigan Supreme Court's finding that there was

no probable cause to arrest White and to seareh lis auto-

mobile beeause Dan Johnson was not shown to be reliable

is also clearly erroneous. The court's reliance on toe lack

of prior contact between Johnson and the poliee to estab-

lish a history of reliability and on the facet that Jonson

was neither a police officer, a vietim, nor an uninvoly. |

eyewitness is superficial. The only other factor the court

mentioned in finding an insuflicient showing of reliability

was a claimed lack of corroborative facts within the knowl-

edge of the offieers.

Indeed the police did have corroboration and there are

other factors to consider which do demonstrate reliability.

Johnson had deseribed to them the gun he had seen in

9

White’s possession corresponding to the one used in the

crime, Moreover the informant’s statement to them consti

tuted an adimission against penal interest. See frmour

v Salisbury, 492 Pld ose (OA 6. 1974). The specificity of

Johnson's statement shows reliability. See Harris v United

States, 45 US O08, 0) S Ct 2000, 29 1 kdb 2d 25 (1971).

The facts given by Johnson were within his personal knowl-

edge. He was a named citizen informant. Tle was not a

paid informant. See cfawilar v Tervas, 378 US 108; S48

Ct 1909; 12 1. Bd 2d 725 (164).

Beenuse both probable cause and exigent cireumstanees

existed at the time of the search and seizure, the Michigan

court's finding that the search and seizure was unreason-

able is not in aecord with the decisions of this Court.

Additionally the danger to the citizenry of leaving a

deadly weapon untended in the trunk of an automobile

parked on a public street where the officers had probable

cause to believe in its presence renders such a search rea-

sonable though without a warrant. To disregard Cady

compounded the error of the Supreme Court of Michi-

gan.

10

CONCLUSION

Wherefore, the Petitioners, the People of the State of

Michigan, respectfully submit that for the foregoing rea-

sons che Supreme Court of the State of Miehigan has ren-

dered a judgment in this eause which is contrary to the

decisions of this Honorable Supreme Court of the United

States of Ameriea, so that a Writ of Certiorari should

be granted.

Respectfully submitted,

WILLIAM L. CAH ALAN,

Prosecuting Attorney for Wayne County

DOMINICK Ro CARNOVALE,

Chief, Criminal Division

PATRICIA J. BOYLE,

Chief Appellate Attorney

MICHAEL R. MUELLER,

Assistant Proseeuting Attorney

Attorneys for Petitioners

Dated: November 30, 1974

11

OPINION

(State of Michigan Court of Appeals)

Division |

People of the State of Michigan, }

Plaintitt Appellee,

v L No. 10596

James White,

Defendant. Appellant.

(Filed June 2s, 1972)

Before: Levin, Pod. Re B. Burns and Gillis, bd.

Per Curiam

The defendant, -lames White, was ceonvieted by a jury

of murder in the first degree. MCLA 750.516; MSA 2s.048.

A DSLR. bus driver was shot during the night of Novem-

ber IS, 1964. and died early the following morning. Two

eyewitnesses saw a man hurrying away from the bus after

the shooting but they were not able te see the man’s face.

The police were informed by Joe Smith that a young man

named Dau Johnson knew something about the killing.

Johnsen learned that the police were looking for him, and

at 12:30 am. November 26, 1964, he went to the police

and gave information which implicated the defendant

White.

At the trial Johnson testified that he and White had gone

to the seene where the killing occurred on four or five oe-

easions to wateh the buses and that they were planning ou

robbing a bus. On November IS, 164, the day of the shoot-

ing. they had discussed robbing a bus. The meeting took

12

place in White’s ear and a third person, Bill Smith, was

present. Johnson claimed he did not see White again that

day. Johnson identified a gun found in the trunk of White's

automobile shortly after he was arrested as the gun he had

seen in White’s bedroom one month before the killing, and

said that White sometimes kept the gun in the trunk of

his automobile. Both Johnson and the police testified that

Johnson had told the police on the morning of November

26 everything he was then relating on the stand.

Acting on the information supplied by Johnson the police

hurried to White’s apartment arriving at 2:15 a.m, Novem-

ber 26. Four police officers knocked on the door and, when

White asked who it was, one of them replied that it was

Jimmy Kdwards. White opened the door a erack and the

police pushed their way into his apartment and arrested

him. The police then searched his apartment while others

took the ear keys and searched the automobile which was

parked in front of the apartment house.

White was taken to the stationhouse and questioned. The

police claim he gave four statements. None were signed.

In the first statement, given at 4+ a.m., shortly after his

arrest, White said that he had bought the gun (found in the

trunk of the automobile) on November 24—6 days after the

killing—from Bill Smith for $21. At the trial White ad-

mitted that he made that statement, but denied making the

other three statements attributed to him.

The seeond satement was said to have been given by

White 5!. hours later, at 7:50 a.m. In that statement

White is said to have declared that he wished to change

his original statement, that he had lied to protect his friend,

sill Smith, who actually murdered the bus driver. White

said that at about 6:50 p.m. on the night of the shooting

13

he drove Smith to a place near where the killing occurred.

Snuth left the ear to visita girlfriend in a nearby apart-

ment. White noticed that Smith had a revolver in his coat

pocket at the time. Smith returned to White’s automobile

at about 8:30 and said that his girlfriend's husband had

eome home unexpeetedly and an argument ensued in the

course of which he had to fire the gun but missed. Sub-

sequently White learned of the D.S.R. holdup murder and

suspected Smith, and later Smith admitted the shooting to

him.

In the third statement, given 12 hours later at 7:30 p.m.,

White said that he had introduced Johnson to Bill Smith,

and “that Bill Smith at that time was interested in holding

up DSR. coaches and he brought in Dan Johnson's name

as being an expert on it. And that they picked up Dan

Johnson near his home and he introduced Dan Johnson to

this Bill Smith while he was in his car. They drove around,

discussing the possibility and probabilities of D.S.R. held-

ups at this particular location, at LaSalle and Webb"—the

place where the killing occurred.

An officer testified that White eave the fourth statement

at P10 arm.. November 27, shortly before he was arraign-

ed. White is said to have told the officer, in tears during

a monetary loss of composure, “1 didn’t mean it. he lunged

at me and the gun went off." The officer said that White

immediately regained his composure and told the ofticer

he was speaking of Smith. A short time later White said

that they could eliminate Smith, that he was not involved

in this, and that he would make a formal statement “if we

[the police | could make some promises and we assured

him we could not promise him anything.”

White was arraigned on November 27 at 2 p.m., the first

day the courts were open after his arrest. November 26,

the day he was arrested, was Thanksgiving Day.

14

I.

A munber of issiies are raised on appeal. The principal

issues center around the validity of White's arrest at his

residence in the middle of the night and the validity of the

search a short time afterwards of his automobile parked

outside his residence, the police not having obtained a war-

‘ant for either his arrest or the seareh.

The arrest and search took place in November, 1965.

This was | vear before Miranda’ was decided, and 4 years

before Chimel and 6 years before Coolidge’ were decided.

Viewing the matter in retrospeet——as of November, 1965

~-it appears clear that no police officer could have been

expected to obtain an arrest warrant before making a felony

arrest on probable cause.

In People v-Herreca, 19 Mich App 216 (1969), our Court

said that research had disclosed no case supporting the

defendant Herrera’s contention that a warrantless arrest,

although on probable cause, is unlawful if the police had

suflicient opportunity to obtain a warrant before the arrest.

Shortly after /errera was decided, the United States

Court of Appeals for the District of Colunibia Circuit, sit-

ting ex banc declared, in what appears to be the first

modern appellate court opinion focusing direetly on the

issue, that the Fourth Amendment right of the people to

be secure in their persons and effeets against unreasonable

searehes and seizures, whieh “assures citizens the privacy

~-

1 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694;

10 ALR3d 974 (1966).

> Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685

(1969).

* Coolidge v New Hampshire, 403 US 446; 91 S Ct 2022; 29 L Ed

2d 564 (1971).

15

and security of their homes unless a judicial officer deter-

mines that if must be overriden, is applicable not only in

case of entre to search for property, but also in case of

entry in order to arrest a suspect.” Dorman vo United

States, 455 F2d 384. 390) (CADC, 1970). Phe Court em-

phasized that in cases of exigent circumstances or urgent

need a warrant would not be required and listed among

the factors to be considered the following: “first. that a

grave offense is involved, particularly one that is a crime

of violence.” second, “that the suspect is reasonably be-

lieved to be armed.” Third, that the information showing

probable cause is especially clear. “Fourth, strong reason

to believe that the suspect is in the premises being entered.

Fifth, a likelihood that the suspect will eseape if not swiftly

apprehended.” Sixth, that the entry can be made peaceably

although in proper circumstances forcible entry might be

justified. Seventh, the time of entry, it being less unreason-

able to enter without consent during the daytime than

during the night although, again, forcible nighttime entry

may be justified in especially strong cases of exigent cir-

cumstances or urgent need.

On the facts presented in Dorman and in every case we

have found accepting and adopting the Dorman rule, the

warrantless, nighttime entries and arrests were found to

be justified. In each of these cases the defendant was

charged with a crime of violence and was believed to be

armed.*

4 See, e.g., United States v Harris, 435 F2d 74 (CADC, 1970);

Vanee v Siate of North Carelina, 432 F2d 984 (CA 4, 1970). Cf. Peo-

ple v Moreno, — Colo —; 491 P2d 575 (1971). See, also, Coolidge v

New Hampshire, supra, p 480.

* This important question of constitutional law was recently con-

sidered by the United States Supreme Court, but on the facts the Court

found it unnecessiry to resolve it. See Joiinson v Louisiana, decided May

22, 1972, 40 LW 4524, 4527. See discussion 10 Cr L 1059, 4136-4137.

16

We are satisfied that the police officers who acted in this

ease cannot be faulted for not having anticipated Dorman,

however clear it may be to some of us that the Fourth

Amendment protects persons as well as property from

unreasonable searches and seizures, and, unless there is

need for acting without a warrant, a seareh or seizure ts

inherently unreasonable unless a judicial officer first makes

an independent determination of probable cause.*

We conclude thac viewed in retrospect as of November,

1965, the officers could not have been expected to obtain

an arrest warrant. Additionally, it probably was not pos-

sible to obtain one at 2 a.m. on Thanksgiving Day morning;

the reeord does not show that an arrest warrant could have

been obtained at that time. Moreover, the likelihood is that

the circumstanees justified immediate action by the police.

it appears that persons other than Dan Johnson knew that

he had gone to the police station to tell about the killing.

Word that Dan Johnson was at the police station might

have been eommunieated to White in the middle of the

night giving him an opportunity to escape. The police had

reason to believe that White was armed. Under all thie

circumstances, the police might have been justified in ob-

taining entry in the manner in which they did.

Il.

We have also concluded that the police acted properly

in seizing the gun found in the trunk of the automobile.

In Chimel, the United States Supreme Court limited the

right of the police to search as an incident to an arrest to

the area within the “immediate control” of the person being

6 See Note, The Neglected Fourth Amendment Problem in Arrest

Entries, 23 Stanford L Rev 995 (1971).

17

arrested, and defined the phrase “immediate control” to

ean “the area from within which he [the person arrested |

might gain possession of a weapon or destructible evi-

denee.”

In Coolidge, the Court ruled that a seareh of an auto-

mobile seized following the defendant’s arrest in his home

was invalid under the cireumstances that there was no

reason Why the police could not have obtained a warrant

hefore searching the automobile, and there was no danger,

against which police could not guard, of the loss of evi-

denee as a result of the delay whieh would have oceurred

had the police sought a search warrant before seizing the

automobile.

The United States Supreme Court has held, however,

that Chime? does not apply ret oactively. The reach of

Coolidge, as applied to a case such as this where the cir-

cumstances do suggest the possibility of loss of evidence

and where waiting to obtain a search warrant probably

would have meant a lengthy delay in acting, is not entirely

clear.

The pre-Chimel law concerning the scope of permissible

search as an incident to an arrest, as elucidated by courts

throughout the land, is confusing. It would not be pro-

ductive to attempt to understand and reconcile the plethora

of conilicting pre-Chimel search incident authority. It ap-

pears on examination of search incident decisions of the

Michigan Supreme Court® and of our Court deeided after

7 Chimel v Calfornia, supra, p 763.

* See People v Harper, 365 Mich 494, 501 (1962); People v Ritholz,

359 Mich 539, 551 (1960); People v Taylor, 341 Mich 570, 577 (1954).

18

Harris? Trapiano® and Rabinowits.. and before Chincl,

that the officers did not exeeed established limitations in

searching the trunk of the automobile without a warrant.

111.

Turning te the other assignments of error, we have

examined the transeript of the evidentiary hearing con-

eerning the admissibility of White's statements and have

concluded that the trial court did not clearly err in finding

that they were freely and voluntarily given.

The delay between arrest and arraignment was not for

the purpose of obtaining a confession.

The jury could reasonably infer from Dan Johnson's

testimony that the bus driver was killed in an attempt to

perpetrate a robbery and. thus, there is sufficient evidence,

apart from the confessional statements attributed to White,

that the bus driver was killed during the perpetration or

attempt to perpetrate a felony mentioned in the first-degree

murder statute.

The tral judge did not commit reversible error in al-

lowing the two teenage eyewitnesses to testify concerning

the man they saw running away from the bus after the

» Harris v United States, 331 US 145; 67 S Ct 1098; 91 L Ed 139%

(1947).

Trupiano v United States, 334 US 699; 68 S Ct 1220; 92 L Ed

1663 (1948).

iL'nited States v Rabinowit:, 3389 US 36; 70 S Ct 4380; 94 L Ed

693 (LYD0).

12 We also note that the officers had reasonable cause to believe,

on the basis of the information obtained from Johnson, that the gun

would be found in the trunk of the automobile. See A Model Code of

Pre Arraignment Procedure, § 6.05 (Tent Draft No 3, 1970); People v

Danny S. Williams, 3835 Mich 549, 659 (1970).

Bu

shooting. On direet examination one of the boys pointed

out White as the man he identitied at the showup. On cross-

examination that boy admitted, that beeause of the dark-

ness, he was never really sure of the identification, and

also admitted that he had picked two men out at the showup

as looking like the killer, and that he never saw the killer's

face. ‘The other boy could not identify anyone either at the

showup or at the trial The testimony of these witnesses

could not have intluenced the jury.

There was no objection at the trial to the testimony of

the ballisties expert who testified that the bullet that killed

the vietim was fired from the gun found in the trunk of

White's auternobile.

The trial judge did net err in refusing te alew inquiry

eoncertitie a poss ble lie detector test.

a oss 4 ’ Pr : y asf , “ees | Xo

Phe judse’s question ue of the witnesses did not execced

peruissibie tin ts.

Under the cireumstanees that Dan Johnsen testited that

the defendant White and he had been planning the com:

mission of a DSLR. bus rebbery at the very loeation where

the killing occurred, and that he had spent part of the day

of the killing with White in the company of Smith, and

officers testified that at ene point White had accused Smith

of killing the driver and said that Smith had admitted: the

killing to him, and White admitted that he had purchased

the fatal gun frem Smith, it was net errer te charge the

jurers, in effect, that if they believed that it was someone

else, ie.. Smith, whe killed the DSR. driver they vould,

nevertheless, conviet White ef murder as an accomplice.

Nor did the judge err in instructing the jury that there

were only two possible verdicts, guilty of murder in the

first degree and net guilty. There was ne request for in-

structions on lesser offenses, nor objection to the instrue-

tions given.

Affirmed.

6

stances required by the decisions of this Court and he-

‘ause the probable cause requirement was not met where

the informant was not shown to be reliable.

However a thorough consideration of the pertinent de-

cisions of this Court and of the faets in White demon-

strates that the search and seizure was reasonable, though

Without a warrant, both because the automobile exception

applies and beeause Cady vo Dombrowski, 413 US 433; 93

S Ct 2025; 37 L Hd 2d 706 (1973), applies.

The Michigan court traces the automobile exeeption

from Carroll v United States, 267 US 182: 45 S Ct 2sS0;

69 L Kd 2d 348 (1925), to Coolidge vy New Hampshire,

405 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971); sewed

ring also to Cady, Cardwell vo Lewis,— US—: 94 S Ct

M464; 41 L Ed 2d 325 epi and Almeuda-Sanchez v

United States, 418 US 266; 93 S Ct 2435: 37 L Ed 2d 596

(19735). The opinion does not carefully artieulate the rela-

tionship of White to these cases but only states that there

are no exigent circumstances in White exeept perhaps that

a gun was the objeet of the search. By implication, there-

fore, the court tits White under II-B of the plurality opin-

ion in Coolidge.

To the contrary siabesaie’ ie tptipcan submits that

Chambers v Maroney. 399 US 42: 908 Ct 1975: 26 L Ed 2d

419 (1970), especially when viewed in the light of TIL in

the plurality opinion in Cardiell, is controlling.

Chambers reiterates the principle that a warrantless

search and seizure involving an automobile is reasonable

if based upon probable cause when there are exigent cir-

cumstanees grounded on the movability of an automobile.

This Court went on to say:

7

“For constitutional purposes, we see no differ-

enee between on the one land seizing and holding

acar before presenting the probable cause issue to

Qomagistrate end oon the other hand carrying out

an immediate search without a warrant. Given prob-

able cause to search, either course is reasonable

under the Fourth Amendment.” S99 US) at 52.

It is expressly set forth in Coolidare that the Court does

not question these principles, 405 US. at 482. The Court

holds, however, that while there was probable cause to

search Coolidge’s car, there Were no exigent circumstances,

so that the automobile exception was inapplicable.

But White contrasts with Coolidge in that definite exi-

gent circumstances do exist. As the Court pointed out in

Coolidge the investigation had been proceeding with the

defendant's knowledge for about three weeks. Tle liad co-

operated. He had had ample time to destroy evidence. LLow-

ever, in Wife the police had gained their reasonable be-

lief that the defendant had committed the erime only min-

utes earher and they were given to understand that the

cefendant would resist arrest. Unlike Coolidge where the

object of the search was neither contraband, nor stolen

soods, nor a dangerous weapon, White did involve a dan-

gerous Weapon, Moreover, in) White the events oecurred

early in the morning of a holiday and a magistrate was

not available. Furthermore ino Coolidge the vehiele was

parked ina private drive, so that a search and seizure there-

of represented a greater intrusien than that in White where

the car was parked on the public street. See Cardwell in

this regard. And perhaps most importantly, whereas the

ear in Coolidge was secured from movement, the ear in

White could easily have heen moved by the defendant's wife

Who had been alerted to the situation because she was pres-

ent during her husband's arrest.

OPINION

(Supreme Court of the State of Michigan)

(People of the State of Michigan, Plaintiff-Appellee,

v James White, Defendant-Appellant. No, 54222

(Filed September 6, 1974)

Before The Entire Bench (except Levin, J., and Fitzger-

ald, J.)

Swainson, J.

A DSR bus driver named Lucian Fryling was fatully

wounded during the night of November 18, 1964, at LaSalle

Boulevard and Webb in the City of Detroit. Two eyewit-

Nesses saw a man hurrying away from the bus after the

shooting but they were not able to see the man’s face.

One week later, on November 25, 1964, the police re-

eeived information from a doe Smith which led them to

seek Dan Johnson, the informer and principal witness in

this ease. When Johnson learned that the police were look-

ing for him, he reported to the precinct station. After be-

ing interviewed by the detectives in charge of the investi-

gation, Johnson made a statement at approximately 12:30

a.m. on November 26 (Thanksgiving Day), 1964.

At the trial Johnson testified that he and appellant had

gone to the scene where the killing occurred on four or

five occasions to watch the buses and to plan the robbery

of a bus driver. On the afternoon of November 18, 1964,

the day of the shooting, they had discussed robbing a

driver. The meeting took place in appellant’s ear and a

third person, Bill Smith,* was present. Johnson claimed

*To avoid confusion it should be noted that the record clearly

indicates that Joe Smith and Bill Smith are not the same individual.

21

he did not see appellant again that day. Johnson identified

a gun found in the trunk of appellant's automobile shortly

after he was arrested as the gun he had seen in appellant's

bedroom one month before the killing, and said that ap-

pellant sometimes kept the gun in the trunk of his auto-

mobile. Both Johnson and the police testified that Johnson

had told the police on the morning of November 26 every-

thing he was then relating on the stand.

Acting on the information supplied by Johnson and

Without a warrant the police immediately went to appel-

lant’s apartment arriving at 2:15 aim, November 26. The

police officers knocked on the door. When appellant asked

who it was, one of them replied that it was Jimmy d-

wards. Appellant opened the door a crack and the police

pushed their way into his apartment and arrested him.

After appellant was under their control, the police

searched the apartment but did net find a handgun. The

police then took appellant's Keys and searched his car,

which was parked on the street in front of the apartment

house. A handgun was discovered in the car's trunk and

was seized by the police.

Appellant was taken to police headquarters sometime

before + a.m. on the morning of the 26th. He was not taken

before a judicial officer for arraignment until 2 p.m. on

the afternoon of the 27th. In the interim defendant was

questioned several times and confronted with the handgun

seized from his car and with Johnson's statement implieat-

ing appellant in the murder of the DSR but driver. Ae-

cording to the police, appellant made four unsigned state-

ments during this period.

Appellant made unsuecessful pretrial motions to sup-

press the admission of the gun and his unsigned state-

9

ments. He was subsequently tried and convicted of first

degree murder and sentenced to life imprisonment. The

Court of Appeals affirmed the conviction in a per curiam

opinion dated June 28, 1972, and this Court granted leave

to appeal, 388 Mich 780 (1972).*

In this appeal we focus on appellant's two primary al-

legations of error.

1. Was the warrantless search of appellant's ear, which

was parked on the street in front of the apartment in

which appellant was arrested, made in violation of the

State and/or Federal constitutional rights to be free from

unreasonable civil seareh and seizure?

2. Did the delay in appellant's arraignment and the na-

ture of the interrogation process render appellant’s state-

ments inadmissible at trial?

I

Whenever the police intrude into a sphere of protected

privacy without the prior authorization of a warrant is-

sued by a neutral judicial officer, their conduct is subject

to careful scrutiny by the courts. To sustain the validity

of a warrantless search the burden rests on the People

to demonstrate that the police acted in a reasonable man-

ner, based on probable cause and in response to an exi-

gent circumstance bringing the search under one of the

specifically established exceptions to the warrant require-

ment. Coolidge v New Hampshire, 408 US 448, 454-495;

OLS Ct 2202; 29 L Ed 2d 564 (1971); People v Mason,

22 Mich App 595, 616-617; 178 NW2d 181 (1970). If the

People fail to meet this burden it is the duty of our courts

14 detailed examination of the prolonged delay between trial and

appellate consideration of this case is attached to this opinion.

23

to suppress the admission into evidence of any fruits of

the unwarranted seareh. Mapp v Ohio, 367 S 643: 81S

Ct 16S4; 6 L Kd: 2d 1081 (1961).

The first step we must take in reviewing the search of

appellant's parked automobile and the resulting seizure

of the handgun is to determine if the warrantless search

arguably fits within one of the exceptions to the warrant

requirement. The People argue that the search was proper

under what is generally described as the “automobile ex-

ception” and it is to the consideration of this exeeption

that we now turn.

The perimeters of the automobile exception have not

heen definitively established by the United States Supreme

Court or by our state's courts. From the early leading case

of Carroll y United States, 267 US 132145 8S Ct 280: 69

L. Md 545 (1925) to more reeent cases such as mee rs

Vv Maroney, D999 TS 42-90 S Ct HPL 26 L Ed 2d 419

(1970). and Coolidge v New Hampshire » 405 US a. 9]

*The only other exception that could possibly justify the search

would be the exception for search incident to a valid arrest. Even as-

suming for the moment that appellant's arrest was valid the law ex-

tant in 1964 did not authorize the search of a vehicle parked outside of

a person’s home when the arrest was accomplished inside of the home.

Compare, Harris v United States, 331 US 145, 67 S Ct 1098; 91 L Ed

1599 (1947) and United States v Rabmowitz, 3359 US 5 96; TOS Ct 450; 94

1. Ed 653 (1950) with Coolidge v New Hampshire, supra, at 403 US 443,

455-457.

The most factually relevant Michigan case existing at the time

of the present search and seizure, People v Harper, 365 Mich 494; 113

NW2d 808 (1962), upholds the warrantless search of an automobile

on the basis of the reasonableness of the police conduct and the pres-

ence of probable cause to search. The court declined to uphold the

search as simply incident to an arrest. Jd. at 365 Mich 494. 501.

Likewise, in People v Williams, 383 Mich 549; 177 NW2d 151 (1970),

the Court upheld a search of an automobile shortly after defendant's

arrest on the basis of probable cause to search and the reasonableness

of the search.

24

S Ct 2022; 29 L Ed 2d 564 (1971), the United States Su-

preme Court has resolved each case narrowly on its own

facts based on the interrelated concepts of reasonableness

and probable cause. Mach new situation thus requires the

courts to reflect on the rationale underlying the exception

and to adopt the teaching of the prior cases to the facts of

the ease at bar. Cf. Cada vy Dombrowski, 413 US 433, 439:

93 S Ct 2525, 2527; 37 L Bd 2d 706, 713 (1973).

In Carroll yv United States, supra, the Supreme Court

initially recognized that there were situations in whieh

a warrantless search of an automobile would not violate

the Fourth Amendment warrant requirement. Appellant

Carroll challenged the authority of federal agents to stop

and search his automobile for the presence of illegal liquor

under the National Prohibition Act. The Court considered

both the primary goal of the aet--to seize contraband. li-

quor rather than to prosecute violations--and the facet that

the agents had probable cause to believe that illegal liquor

was being transported in Carroll's moving vehicle. In this

limited context the Court said:

“We have made a somewhat extended reference to

*** show that the guaranty of freedom from unreas-

onable searches and seizures by the Fourth Amend-

ment has been construed * * * as recognizing a neees-

sary difference between a search of a store, dwelling

house or other structure in respect to which a proper

official warrant readily may be obtained, and a seareh

of a * * * automobile, for contraband goods, where it

is not practicable to secure a warrant beeause the

vehicle ean be quickly moved out of the loeality or

jurisdiction in which the warrant must be sought.”

267 US 132, 153.

25

The Carroll Court certainly did not see itself as eliminat-

ing the warran: requirement simply because the object to

be searched was a mobile vehicle. It emphasized that: “In

cases Where the securing of a warrant is reasonably practi-

eal, it must be used * * * “267 US 132, 156.

Again in 1949 the Court reviewed a situation involving

the transportation of liquer contrary to law and upheld

the search of defendant Brinegar’s automobile after a high-

way stop on probable cause. Brivegar vo United States,

dos US 160; 69 S Ct 1502; 93 L Ed 2d 1879 (1949). In the

course of resolving the case before it. the Court repeated

the narrow scope of the holding in Carroll,

“The Carroll decision held that. under the Fourth

Amendment, a valid seareh of a vehicle moving on a

publie highway may be had without a warrant, but only

if probable cause for the search exists.” 358 US 160, 164,

The Supreme Court first) examined the warrantless

seareh of a parked automobile in Prestouw v United States,

d76 US c64; 54 8 Ct sst: 1) Led 2d 777 (1964). In

Preston the faets reveal that the poliee received a eom-

plaint at 5:00 a.m. that three unidentified men were acting

suspiciously and had been sitting in a parked ear in a

business district since 10:00 p.m. Tne police investigated

the complaint and questioned the occupants of the ear.

The police then arrested the three men for vagraney and

had the automobile removed to a police garage. Later, they

searched the carat the police garage and seized two loaded

revolvers and other evidence that was used against Pres-

ton at his trial on charges of conspiracy to rob a federally

insured bank.

Mr. Justice Black writing for the Court found the search

of the automobile at the police garage to be unreasonable.

At the time the oeceupants were arvested the police did not

26

search incident to arrest nor did they have probable cause

to search the vehicle itself. After the car was in police

custody, there was no danger of its removal and therefore

no circumstances making a warrantless search reasonable.

Broadly interpreting the prior automobile exception cases,

Justice Black wrote:

“Our cases make it clear that searches of motorears

must meet the test of reasonableness under the Fourth

Amendment before the evidence obtained as a result

of such searches is admissible.” 376 US 364, 366.

See also, Cooper v California, 386 US 58; 59-60; STS Ct

788; 17 L Ed 2d 730 (1967): Duke vy Taylor Implement

Manufacturing Co, 3891 US 216; 88 8 Ct 1472; 20 L Ed 2d

538 (1968).

Then, in a ease that at first appears to be departure from

past precedent, the Court in Chambers v Maroncy, supra,

upheld the validity of warrantless search of an automobile

taken into police custody after its occupants were stopped,

and arrested on robbery charges. The Court speaking

through Justice White, however, did not perceive the hold-

ing in Chambers as stating a different rule of law than

that found in the prior automobile exception cases. In

Chambers the police had the requisite probable cause to

seareh the automobile for weapons at the time that it was

stopped and its occupants arrested. Justice White then

argued that sinee there was originally probable cause to

search, the police in essence did not intrude into an area

of protected privaey in any greater degree by searching

the car when it arrived at the station house than they

would have by immobilizing it until a warrant could be ob-

tained.

The Chambers Court was. in fact, very mindful of the

past cases. In reaching its result it recognized that there

r+ |

Was not an “automobile exception” per se but rather an ex-

ception that allowed for warrantless searches of moving

vehicles based on probable eause.

“In enforcing the Fourth Amendment's prohibition

against unreasonable searches and seizures, the Court

has insisted upon probable cause as a minimum require-

ment for a reasonable search permitted by the Consti-

tution, Asa general rule, it has also required the judg-

ment of a magistrate on the probable-cause issue and

the issuance of a warrant before a search is made. Only

in exigent circumstances will the judgment of the police

as to probable cause serve as a suflicient authorization

for a search. Carroll, supra, holds a seareh warrant

unnecessary where there is probable cause to seareh

an automobile stopped on the highway: the ear is

movable, the occupants are alerted. and the ear’s eon-

tents may never be found again if a warrant must be

obtained. Hence an immediate seareh is constitution-

ally permissible.” 3989 US 42, 512

‘Insight into the limits of the automobile exception may also be

found in the later dissenting opinion of Justice Brennan in Cady v

Dombrowski, 413 US 433, 441:

“But the search of the Thunderbird plainly cannot be sustained

under the ‘automobile exception,’ for our prior decisions make it

clear that where, as in this case, there is ne reasonable likelihood

that the automobile would or could be moved, the ‘automobile ex-

ception’ is simply irrelevant.”

See also, Cardwell v Lewis, — US —; — 8S Ct —; — L Ed Wd —;

42 USLW 4928, 4952-4955 (1974) (Stewart, J., dissenting) :

“(The Carroll doctrine simply recognizes the obvious—that

a moving automobile on the open road presents a situation ‘where

it is not practicable to secure a Warrant because the vehicle can

be quickly moved out of the locality or jurisdiction in which the

warrant must be sought.’ Carroll, supra, at 153. See also Almeida-

Sanchez v. United States, 4138 U.S. 266, 269. Where there is no

reasonable likelihood that the automobile would or could be moved,

the Carroll doctrine is simply inapplicable. See, e.g., Coolidge,

supra; Preston v. United States, 376 U.S. 364.”

28

The most recent automobile exception ease factually rel-

event to appellant White’s ease is Coolidge y New Hamp-

shire, supra. Although decided by the Court in 1971,

Coolidge reviewed police conduct taking place in 1964 and

1965. In terms of the dates involved and the character of

the seareh performed, Coolidge bears a great similarity te

the present case.

The essential faets in Coolidge indicate that the police

went to speak to Coolidge at his home on January 28,

1964, in the course of investigating a murder that had

been committed earlier that month. Coolidge spoke to the

police and accompanied them to take a lie detector test

after which he was not arrested. The police continued their

investigation and on February 19, 1964, returned to Cool-

idge’s home and arrested him on the murder charge. At

the same time the police seized Coolidge’s automobile

parked in his driveway and towed it to the station house

where it was searched without a valid warrant.* Vacuum

sweepings from the interior of the car were seized and

later admitted into evidence over objection. Coolidge was

thereafter convicted of the murder.

In examining this search the Court’ found the automo-

bile exception inapplicable. *tHere there was probable

‘ause, but no exigent circumstances justified the police in

*The police had obtained a warrant to search but the Court held

the warrant invalid since it was issued by the state attorney general

rather than a neutral magistrate. 403 US 445, 449-495.

5’ The Court spoke through a plurality opinion authored by Justice

Stewart. Justices Douglas, Brennan and Marshall joined in the opin-

ion of Justice Stewart on the automobile exception issue, part II-B of

the opinion. Justice Harlan also concurred with the above Justices in

part II-l) of Coolidge that found no exigent circumstances present to

justify a warrantless seizure of the automobile.

29

proceeding without a warrant”. 403 US 445, 464. The faets

in Coolidge placed the seizure outside of the reasonable

limits for warrantless searches.

“The word ‘automobile’ ix not a talisinan in whose

presence the Fourth Amendment fades away and dis-

appears. And surely there is nothing in this case to

invoke the meaning and purpose of the rule of Carroll

vy. United States—-no alerted criminal bent on flight,

no fleeting opportunity on an open highway after a

hazardous chase, no contraband or stolen goods or

weapons, no confederates waiting to move the evi-

denee, not even the inconvenience of a special police

detail to guard the immobilized automobile. In short,

by no possible stretch of the legal imagination can

this be made into a case where ‘it is not practicable

to secure a warrant,’ ”. 403 US 443, 461-462.

Following the instruction of these United States Su-

preme Court precedents, we have serious doubts that the

People have sustained their initial burden of demonstrat-

ing that the search here in issue fits within the perimeters

of the automobile exception to the warrant requirement.

The appellant's automobile was parked and unoceupied

when the police arrived with an ample number of officers

to allow the automobile to be guarded while a warrant was

sought. The one circumstance, in our analysis, that might

arguably support the reasonableness of the warrantless

search was the police suspicion that a weapon was located

in the automobile; but a legal basis for the proposition

that the suspected presence of a gun alone proves an exi-

gent cireumstance is derived only from the dicta in Cool-

idge. The presence of a weapon did not alter the Supreme

Court's analysis ‘n either Preston v United States, supra,

’

30

or Dyke y Taylor Implement Manufacturing Co, supra.

Furthermore, even this Coolidge dicta may be read to in-

dicate that the presence of a weapon is only one factor in

creating, and not the sum total, of an exigent cireum-

stance. See, for example: Cady v Dombrowski, supra.

Based then on the case law and the basie requirement

of search and seizure law, we are inclined at this point to

hold that the warrantless search and seizure of appel-

lant’s automobile was unreasonable, and therefore not with-

in the automobile exception. In our opinion, however, it

is not necessary to test our decision on this basis alone.

‘The reasonableness of any search or seizure must be de-

termined as of the time of search or seizure. In the de-

termination of reasonableness, consideration may be given

to the information possessed by the police officer.” People

v Tis, 384 Mich 214, 219; 180 NW2d 801 (1970). In the

present case, the nature of the information on whieh the

police aeted also leads us to conclude that the warrantless

search was unreasonable.

The police had not focused on appellant as a suspect in

the homicide until after they had questioned Dan Johnson.

Then, acting solely on the information supplied by John-

son, the police arrested appellant and searched his apart-—

ment and ear and siezed the handgun. From the reeord we

learn that the police first sought out Dan Johnson on No-

vember 25th after a Joe Smith had reportedly given the

police information leading them to Johnson. After Johnson

learned the police were looking for him, he voluntarily re-

ported to the station house. The police interviewed John-

son at the station house who, according to his own trial

testimony, met an initial physical description given to the

dl

police by one of the witnesses at the scene of the shooting.

Then, early in the morning of November 26th, Johnson

made a statement indieating that although he was not a

witness to the shooting, he had reason to believe that appel-

lant was probably the person responsible for the homicide.

The record, however, reveals no prior contact between

the police officers and Johnson that would have allowed

them to assess his reliability. Neither is there any indica-

tion that the police officers had available or knew of sufli-

cient facts to corroborate the details of Johnson's state-

ment prior to their arrest and search of appellant. All we

‘an gather from this record is that the police first acted

on the information by arresting and searching appellant

and thereafter obtained a material witness warrant against

Johnson under which he was detained until he testified

against appellant at trial.’

6 The record does not clearly indicate the precise reason that the

police questioned Johnson—whether they considered him a suspect or

merely a lead to further information. The People did not produce

Joe Smith nor did they indicate the substance of the information re-

garding Johnson that Joe Smith gave to the police. The record does

indicate, however, that Johnson did meet part of the vague description

(6 feet tall, 170 pounds) given by one of the witnesses to the police

shortly after the shooting.

Since the People carry the burden of proving probable cause for

the police actions, we in this case, must accept the inference from the

record that is most favorable to appellant. We, of course, do not ex-

press any belief or suspicion that Dan Johnson was in fact involved

in the shooting of the DSR bus driver. We look only to determine if

the police could use his statement without corroboration as their sole

basis for a warrantless search of appellants’ automobile.

7We note that Johnson did not fit inte the category of either

a police officer, victim or uninvolved eyewitness that would allow the

police, without more, to credit his reliability. McCreary v Sigler, 406

F2d 1264, 1269 (CA 8, 1969) cert den, 395 US 984; 89 S Ct 2149; 25

L Ed 2d 773(1969); People v Lewis, 240 Cal App 2d 546, 550; 49 Cal

Rptr 579 (1966); 387 Mo L Rev 538, 541 (1972). Thus, the l’eople

must be able to point to some evidence in the record that indicates that

the police had reason to believe that Johnson was providing them with

reliable information.

32

Under the law extant at the time of the search we find

that the police did not have a suflicient basis to credit Joln-

son's statement as reliable. The present facts form a

marked contrast to the information held sufficient to jus-

tify a warrantless seareh in Draper vy United States, 358

US 307; 79 S Ct 329; 3 L Ed 2d 327 (1959). In Draper

the police acted on information from an informer who had

previously provided them with reliable and aeeurate in-

formation of criminal activity and arrested Draper with

heroin in his possession. Even then, however, Draper was

not arrested until several aspeets of the informer’s state-

ment were visually verified. The police were not required

under the holding in Draper to verify the fact that Draper

possessed heroin prior to the arrest but they were required

to be reasonably certain of the truth of the informer's

statement before they acted. “| With every other bit of

[the informant's| information being thus personally veri-

fied, [the narcotics agent] had ‘reasonable grounds’ to be-

lieve that the remaining unverified bit of [the informant’s |

information—that Draper would have the heroin with him

—was likewise true.” 358 US 307, 313. Aeeord, Whiteley

vy. Warden, 401 US S60; OL S Ct 1051; 28 Lo ed 2d 506

(1971); People v Tisi, 384 Mich 214, 219; 180 NW2d S01

(1970). |

Johnson's statement could have been used lawfully as

an investigative tool and a “lead” to interview appellant

White. The police also could have attempted to corrobor-

ate its details prior to the arrest and search and pre-

sented their information to a judicial officer for his deter-

*Compare also People v Harper, 365 Mich 494; 113 NW2d 808

(1962) where this Court found sutflicient probable cause to search de-

fendant’s car trunk after defendant stated to the police that a quantity

of marijuana was stored there.

33

mination as to whether a warrant should issue. The police,

however, did none of these things. Rather, they proceeded

to conduct a warrantless search.

The judicial preference for searches conducted under

the authority of a search warrant should be expressed not

only in terms of the narrowly drawn exceptions to the

warrant requirement but also in terms of a more stringent

standard of review applied to all aspects of warrantless

searches. The courts thereby encourage police officers to

seek a warrant before acting.

“The point of the Fourth Amendment, which often is

not grasped by zealous oflicers, is not that it denies law

enforcement the support of the usual inferences which

reasonable men draw from evidence. Its protection con-

sists in requiring that those inferences be drawn by a neu-

tral and detached magistrate instead of being judged by

the officer engaged in the often competitive enterprise of

ferreting out crime.” * *" (Footnote omitted.) Johnson

v. United States, 333 US 10, 13-14; 68 S Ct 367; 92 L Ed

456 (1948). See also, Jones vi lunitted States, 362 US

257, 271; SOS Ct 725: 4 L Ed 2d 697 (1960); Whiteley

v Warden, 401 US 562, 566; 91S Ct 1031; 28 L Ed 2d 306

(1971).

In this ease we conclude that the police proceeded to

conduct a warrantless search in a situation that did not

present an exigent cireumstance and on the basis of

questionably reliable information. The decision of the trial

court denying appellant's motion to suppress was erron-

eous:

The search and seizure violated the protection of the

Fourth and Fourteenth Amendments and Cons! 1963, art

1, $11. The introduction of the gun as evidence should

have been suppressed.

34

II

The second issue we must review is appellant's conten-

tion that the trial judge erred by failing to suppress cer-

tain admissions made to the police after arrest but before

arraignment. Factually, the record reveals that the follow-

ing events occurred between the time of appellant's arrest

on November 26 and his arraignment on November 27.

November 26, 2:50 am.—Appellant arrested and

taken to police headquarters.

4a.m.—<Appellant was questioned at police headquar-

ters Homicide Bureau by Detectives Eifrid and Rohn.

The police claim that appellant was advised of his

constitutional rights; appellant states that no warn-

ings were given him at this time.

Appellant was confronted with the hand gun seized

and, according to the police, made a statement, never

signed, accounting for his activities on the evening of

November 18, 1964. Appellant also stated that he pur-

chased the seized hand gun on November 24, from Bill

Smith and had placed it in his car trunk where it re-

mained until seized by the police. This first interro-

gation ended at about 5 a.m.

7:50 am.—Appellant was again questioned by De-

tectives Kifrid and Rohn. Appellant admitted being

informed of his constitutional rights. He was then con-

fronted with a ballistics report linking the seized gun

to the homicide and with Johnson's statement. Appel-

lant. according to the police, now disclaimed his 4 a.m.

statement and said he wanted to make a new state-

ment. This statement, never signed, related that appel-

lant was originally trying to protect Bill Smith, who

had admitted the shooting to him. Appellant said he

35

purchased the gun from Smith only after Smith as-

sured him that it had not been used as a murder wea-

pon.

8:30 a.m.—Appellant was placed in a cell block at

police headquarters.

12 noon—The police claim that appellant was fed for

the first time. Appellant maintains he was not fed un-

til 3 p.m.

4 pm.—Appellant was interrogated by oflicers from

the Holdup Squad concerning an unrelated crime.

7:30 pan—Appellant was interrogated by Detective

Kifrid. According to the detective’s testimony, appel-

lant was read in full Dan Johnson's statement relating

how Johnson and appellant on several occasions had

watched coaches with an intent to rob the drivers but

had never done so. Kifrid testified that after their

hearing the statement appellant “stated that it was

true, except that Dan Johnson was trying to place too

much blame on him | Appellant.” (T-60.)

8 p.m.—Appellant consulted with an attorney.

»»

November 27, 11:40 a.m. —Appellant being con-

cerned that he had not as yet been taken to court,

asked a turnkey if he could see someone related to his

case. Detective Rohn responded to talk to appellant.

Appellant stated that this interview was limited to

determining when he was going to court and if the

police had located Bill Smith. In contrast, Detective

Rohn testified that when he entered the interview

room, appellant “stood up, tears started to come down

his cheeks. He turned and faced the wall and he made

the remarks, ‘I didn’t mean it, he lunged at me and

36

the gun went off.’” (T-29.) Detective Rohn testified

that appellant then quickly regained his composure

and stated that he was referring to Bill Smith and

not to himself.

2 p.m.—Defendant was arraigned in court on a

charge of first degree murder.

In this pre-Miranda v Arizona, 384 US 4386; 86 8 Ct

1602; 16 L Ed 2d 694; 10 ALR 8d 974 (1966) situation,

we first examine the admissibility of appellant's statements

under the Michigan statutory requirements governing the

arrest-arraigninent process.

The statutes governing the arrest-arraignment process

provide that after a defendant has been arrested on felony

charges he shall be taken before a magistrate for arraign-

ment ‘‘without unnecessary delay.” MCLA 764.13; 764.26;

MSA 28.871(1); 28.885. These sections, while straightfor-

ward in their command to the police, have not been incer-

preted by this Court or require the exclusion of every ad-

mission or confession obtained during a period of unrea-

sonable delay. Only when the delay has been employed as

a tool to extract a statement has an exclusionary rule been

imposed under these seetions. People vy Hamilton, 359

Mich 410; 102 NW2d 738 (1960); People vy Harper, 365

Mich 494; 118 NW2d 808 (1962); People v Farmer, 380

Mich 198; 156 NW2d 504 (1968).

In the present case the trial judge acted within the

hounds of his diseretion when he held appellant’s state-

ments admissible. The police, in our opinion, should have

acted promptly in bringing appellant before a magistrate.

The fact that November 26 was Thanksgiving Day was, in

itself, no exeuse for delay. People v Hamilton, 359 Mich

410, 417; 102 NW 2d 738 (1960). Even assuming, how-

au

37

ever, that the delay was unnecessarily long, we cannot say

that the trial judge was, under the present record, required

to find that the police used the delay as a tool to further

their interrogations.

The trial judge could have reasonably accepted the po-

lice testimony that appellant was repeatedly warned of

his constitutional rights before being questioned. Appel-

lant also had an opportunity to consult with a lawyer.

Moreover, the most damaging of appellant's alleged state-

ments, that made on November 27th, was not the product

of a police interrogation. Appellant requested the Novem-

ber 27th interview with the police officers and, according

to police testimony, volunteered his statement as soon as

the detective arrived.

We are also unable to accept appellant's coniention that

the interrogations were of a coercive nature in violation

of his constitutional rights. We are mindful that the

People carry the burden of proving voluntariness. People

v Zeigler, 358 Mich 355, 364; 100 NW2d 456 (1960). Our

independent review of the record, however, again indi-

cates that the trial judge reached a decision that was rea-

sonable under the facts of this case.

Likewise, we find appellant's citation to Fahy v Con-

necticut, 375 US 85; 848 Ct 229; 11 L Ed 2d 171 (1963)

unpersuasive. In Fahy the Supreme Court held that. it

was error to not allow Fahy “a chance to show that his

admissions were induced by being confronted with the il-

legally seized evidence.” 375 US 85, 91. In the present

case appellant's trial counsel argued both the illegality

of the seizure of the gun and the inadmissibility of ap-

pellant’s statements. Counsel, however, did not ask the

court to determine if the confrontation with the illegally

seized weapon had “induced” appellant to make his state-

38

ments. Therefore, we find no error under /’ahy on the part

of the trial judge.°

The Court of Appeals is reversed in part and affirmed

in part. This case is remanded for a new trial.

/s/ John B. Swainson

/s/ Thomas M. Kavanagh

/s/ Thomas Giles Kavanagh

APPENDIX

‘

This ease has taken 10 years to reach this Court on

original appeal. We cannot avoid our duty to comment

upon the negligent and cavalier manner in which this case

has proceeded to final appellate consideration. During

these ten years Mr. White has remained in prison when,

as we hold today, he was entitled to a new trial. The peo-

ple also have surely been prejudiced by this delay. It will

undoubtedly be difficult to find witnesses and prepare for

a new trial concerning events that occurred in 1964. See,

People vy Thomas, 390 Mich 93, 95; 210 NW2d 776 (1973).

These proceedings have taken every conceivable turn.

Appellant’s arrest and trial took place in a relatively nor-

mal period of time from November 1964 to April L965.

The appellate process began in April 1965 with the ap-

pointment of Willis F. Ward as counsel. Mr. Ward subse-

quently was appointed to the Michigan Publie Service

Commission (MPSC). Commissioners are prohibited from

° Appellant, of course, may move to have his statements suppressed

under Fahy v Connecticut, as part of the normal procedures incident

to the new trial that we find is required under Part I of today’s opin-

ion. Cf. People v Kennedy, 384 Mich 239; 183 NW2d 297 (1971).

39

practicing law in addition to their position. Mr. Ward re-

quested attorney Clayton L. Davis, Jr. to inform the Re-

corder’s Court of Ward's inability to pursue the appeal.

Mr. Davis finally wrote in September 1966 (114 years

later); and requested to be appointed substitute appellate

counsel.” Over the next three years Mr. Davis failed to

proceed with any speed and demonstrated a lack of dili-

gence in pursuing the matter. In 1967 he sent appellant one

letter reporting work on the case was in progress. Appel-

lant contacted Mr. Davis several times requesting action.

When these efforts proved fruitless, appellant wrote the

Supreme Court Administrator to enlist his aid in obtain-

ing effective assistance of counsel. The inquiry of the Ad-

ministrator motivated Davis to “promise” to file an Ap-

plication for a Delayed Motion for a New Trial in May,

1968. The motion was finally filed in January 1969. The

motion was opposed by the prosecutor's office and denied

in May 1969 by the Recorder's Court. Action on the case

then rested another nine months, until February 1970

when Davis was dismissed as counsel under the direction

of the Supreme Court Administrator.

Mr. Joseph Freed was appointed new appellate counsel

and work began again on appellant's appeal. Mr. Carl

Ziemba then became associated with the appeal. The ree-

ord indicates Mr. Freed handled much of the early pro-

ceedings, and Mr. Ziemba the later proceedings.

The administrative morass in which appellant was en-

tangled tripped on its own feet, however, with the extra

* Mr. Ward retained responsibility for proceeding with appellant's

appeal until] Mr. Davis was formally appointed substitute appellate

counsel. Subsequently, Mr. Ward was assessed $100 court costs by

the Court of Appeals for failure to meet the time limits required to

preserve appellant’s appeal as of right.

40

appointment of Mr. M. Heetor Cisneros as counsel. Mr.

Cisneros promptly withdrew when informed of the ap-

pointment of Mr. Freed. Through most of 1970 Freed bat-

tled to prepare the case, experiencing among other hur-

dles, difficulties in obtaining trial transcripts. The matter

was finally on its way to consideration by the Court of

Appeals in late 1970. Then in December 1970 the Prose-

eutor obtained the first of many time extensions which

put the matter over into 1971. Leave for Delayed Appli-

‘ation to Appeal was granted by the Court of Appeals

Mareh 23, 1971, a long 6-1. vears after appellant White

was first inearcerated.

There were several prosecution delays in filing briefs

through the summer of ‘71. The case was scheduled for

hearing for the Fall. On October 11, 1971, People v White

was finally heard by the Court of Appeals. Eight months

later. on June 28, 1972, the Court of Appeals issued its

opinion affirming the conviction. The case was immediately

appealed to the Supreme Court. In September, 1972, it

was necessary for this Court to remand the ease to the

Reeorder’s Court for a determination of indigeney. In-

digeney was found and on December 5, 1972, the State Ap-

pellate Defender, Mr. White's fifth counsel, was assigned

the ease.

The case moved slowly through the Supreme Court pro-

eeedings in 1973. Appellant was granted two extensions

of time to file his brief in March 1975. Notiee of hearing

was given August 6, 1975, and the appeal finally argued

and submitted October 3, 1975. This case has been under

consideration sinee that time.

41

Williams and Coleman, J.J. (To Affirm)

Justice Swainson has written a perceptive opinion which

graphically demonstrates the difficulty of grappling with

warrantless automobile search and seizure questions under

the Fourth Amendment. With Justice Swainson, we are

persuaded that this Court must do all that is appropriate

to persuade law enforcement officers to make every rea-

sonable effort to employ search warrants in order to

safeguard our constitutional right of privacy. We are con-

vinced that is the purpose and interest of the Fourth

Amendment :

“The right of the people to be secure in their per-

sons, houses, papers, and effeets, against unreason-

able searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly de-

seribing the place to be searched, and the persons or

things to be seized.”

However, on the facts in the instant case, we hold that

the police acted within the bounds of the Fourth Amend-

ment with respect to their search of appellant’s ear. We

agree with Justice Swainson on the second issue.

42

I—FACTS

At approximately 8:00 p.m. on the evening of November

1S, 1964, a DSR bus driver was slain. Moments after the

fatal shots two eyewitnesses saw a man hurry from the

bus in which the slain bus driver lay. Although the wit-

nesses were unable to see the man's face, nevertheless they

retained and later related to the police a general deserip-

tion of the fleeing man.

Approximately a week later, one Dan Johnson, upon

learning that the police were looking for him in conneec-

tion with this crime voluntarily appeared at a precinct

station. He informed the police that he had reason to

believe that the appellant, James White, was responsible

for the death of the bus driver. He recounted that he had

been at the scene of the crime with the defendant, James

White, four or five times between 7:00 and 9:00 p.m. on

evenings preceding the crime. Their purpose for these

visits was to plan a robbery of a bus driver. Johnson fur-

ther informed the police that earlier on the night in ques-

tion he had been with defendant. At that time defendant

asked Johnson what he was doing around 7 :00 p.m. because

he (James White) was going to get a bus. This meeting

took place in defendant's ear. A third person, Bill Smith,

was present. Johnson also informed the police that he had

seen a gun in defendant's bedroom and that defendant kept

a gun such as the one described as the murder weapon

in either a bedroom drawer or in the trunk of his automo-

hile “under some rags.” Aeting upon this information

received sometime between 1:00 and 2:00 a.m., the police

arrested White at his apartment around 2:15 a.m. Thanks-

giving Day. The police asked White for his ear keys and,

upon receiving them, searched the trunk of his car parked

43

on the street in front of the apartment. There, “under

some rags,” the police found the murder weapon, the sup-

pression of which is the subject matter of this opinion,

I—COOLIDGE; PRESTON ; CADY—

AUTO SEARCHES

Justice Swainson relies heavily on Coolidge v New

Hampshire, 403 US 443; 91'S Ct 2022; 29 L Ed 2d 564

(1971). However, Coolidge specifically excepts hypotheti-

eal facts which more than the faets in Coolidge itself re-

late directly to the instant case. The Coolidge Court said:

“Even assuming, arguendo, that the police might

have searched the Pontiac in the driveway when they

arrested Coolidge in the house, Preston vy United

States, 376 U.S. 364, makes plain they could not le-

gally seize the car, remove it, and search it at their

leisure without a warrant.” [Emphasis added.] 403

US 448, 457.

The Coolidge hypothetical facts differ from White only

in that in Coolidge the car was in the driveway and in

White across the street, the difference between suburban

and urban living.

Moreover, in White there was a reason for search that

does not appear in Coolidge, namely that the police had

probable cause to suspect the murder weapon was in the

ear. In Coolidge, the Court said “(t]he objects [vacuurn

sweeping of microscopic particles to show presence of

gun powder and murder victim] that the police are as-

sumed to have had probable cause to search for in the car

were neither stolen, nor contraband nor dangerous.” 403

US 443, 460. That is probably why the Court also said

44

*thlere there was probable cause, wat no exigent cireum-

stances justified the police in preceeding without a war-

rant.” [Emphasis added.] 403 US 443, 464.

This brings us to Preston v United States, 376 US 364;

S48 Ct SSi: 11 L Ed 2d 777 (1964) where the Court

speaks more positively even than in Coolidge about the re-

served exception. In Prestcn, the Court said:

“Here, 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 was

stolen, the police had the right to search the car when

they first came on the scene. But this does not decide

the reasonableness of a search at a later time and at

another place.” [Emphasis added.] 376 US 364, 367-

368.

The Preston hypothetical is closer to White even than

the Coolidge hypothetical is, because of two factors: first,

the Preston hypothetical speaks firmly of “probable cause”

and second the Preston hypothetical speaks of the police

conducting the search **when they first came on the scene.”

This reference is to “exigent circumstances” because, while

the ear was temporarily parked, the ear was occupied and

could have been driven away just as surely as a car stopped

on the highwy. See Carroll vy United States, 267 US 132;

45 8 Ct 280; 69 L Ed 545 (1925). Both faetors are present

in White-—-the Coolidge search was made only after a

lengthy investigation of over a week.

It would be stretching Coolidge to say on the basis of

the hypothetical exception that it was precedent for up-

holding the search in White. However, on the other han4,

45

it would be inaccurate to say that Cooli.ge controls White

against the validity of the search.’

Likewise, Preston on the basis of its hypothetical can-

not be said to be four square p: _edent for the reasonable-

ness of the search in White, beeause the defendants were in

a parked car at the time of the search of the car, whereas

White was in his apartment room across the street. How-

ever, Preston cannot be said to be precedent against the

validity of the White search. In fact, Preston in this hypo-

thetical seems to extend the probable cause rule from mov-

ing cars to parked cars, at least if the defendants are in

them, although already arrested. In White, of course, the

defendant was arrested and in custody but his wife and

Bill Smith were not.

This brings us to Cady v Dombrowski, 413 US 433; 93

S Ct 2525; 37 L Ed 2d 706 (1973). Cady justified a search

where the defendant had been arrested for an automobile

accident while drunk and taken to the police station and

his wrecked car had been hauled to a private garage. Two

or three hours after the arrest the police searched the ear

without a warrant to look for the defendant Chicago po-

lice officer's service revolver. The Court concluded its

consideration of this part of its opinion in these words:

“Where, as here, the trunk of an automobile, which

the officer reasonably believed to contain a gun, was

vulnerable to intrusion by vandals, we hold the search

was not unreasonable within the meaning of the

Fourth and Fourteenth Amendments.” 413 US 433,

448.

1 We do not believe Justice Swainson says it does.

46

In reaching this conclusion the Court said that the police

had exercised a form of custody, and that search was stan-

dard police procedure, in order to bring the ease closer to

Harris v United States, 390 US 234; 88 8 Ct 992; 19 L Ed

2d 1067 (1968) and Cooper v California, 386 US 58; 87

S Ct 788: 17 L Ed 2d 730 (1967). 413 US 433, 442, 443,

445. However, it is obvious that the danger of the weapon

falling in the wrong hands is the Court's primary con-

eern. For example, it says:

“In Harris the justifieation for the initial intrusion

into the vehicle was to safeguard the owner's prop-

erty, and in Cooper it was to guarantee the safety

of the custodians. Here the justification, while differ-

ent, was as immediate and constitutionally reasonable

as those in Harris and Cooper: concern for the safety

of the general publie who might be endangered if an

intruder removed a revolver from the trunk of the

vehicle.” 415 US 455, 447.

What lessons do we learn from Coolidge, Preston and

Cady?

(1) The Fourth Amendment protects the publie against

unreasonable search and seizure. The ultimate test

is whether the officers’ actions under all the eireum-

stances surrounding the search were reasonable.

That was the test in 1964 and that is the test today.

(2) Neither Coolidge nor Preston is precedent against

the reasonableness of the seareh in White;

(3) Coolidge and Preston are support but not four

square precedent for White;

(4) Cady is strong support but again not four square

precedent for White;

47

(5) Coolidge articulates the underlying principle pat-

ently or latently present in all the pertinent cases,?

namely the Siamese twins of reasonable warrantless

search: “probable cause” and “exigent cireumstan-

ees.” The Court said:

“Here there was probable cause, but no exigent

circumstances justified the police in prozeeding with-

out a warrant.” [Emphasis added.] 403 Us 443,

464.

The Court in Coolidge emphasized tests for “exigent

cireumstanees” in finding there were none in Cool-

idge. The Court said:

“In this case, the police had known for some time

of the probable role of the Pontiae car in the crime.

Coolidge was aware that he was a suspect in the

Mason murder, but he had been extremely eoopera-

tive throughout the investigation, and there was no

indieation that he meant to flee. He had already

had ample opportunity to destroy any evidence

he thought incriminating. There is no suggestion

that, on the night in question, the car was being

used for any illegal purpose, and it was regularly

parked in the driveway of his house. The opportun-

ity for seareh was thus hardly ‘fleeting.’ The objects

that the police are assumed to have had’ probable

cause to search for in the car were neither stolen

nor contraband nor dangerous.” 403 US 443, 460.

2 Excluded from this discussion are the so-called custody cases:

Cooper v California, 386 US 58; 87 S Ct 788; 17 L Ed 2d 730 (1967),

and Chambers v Maroney, 399 US 42; 90 S Ct 1975; 26 L Ed 24 419

(1970).

48

(6) Where there is “probable cause” and the seareh is

contemporaneous and nearby (defendants in parked

ear—Preston; defendant in house, ear in driveway—

Coolidge) the seareh may be constitutional ;*

) Where there was “probable cause” to believe the de-

fendant’s weapon might be in the ear and there

was natural concern that the weapon might fall

(

into the wrong hands (an exigent circumstance)

search in a ecar sent by the police to a private garage

several miles from the police station where the de-

fendant had been under arrest and in custody for

more than two hours was held reasonable. The ear

was said to be in partial custody of the police and

3See Dyke v Taylor Implement Manufacturing Co, 391 US 216,

221; 88 S Ct 1472; 20 L Ed 2d 5388 (1968):

“Automobiles, because of their mobility, may be searched with-

out a warrant upon facts not justifying a warrantless search of a

residence or office. Brinegar v United States, 388 U.S. 160 (1949) 5

Carroll v United States, 267 U.S. 182 (1925). The cases so hold-

ing have, however, always insisted that the officers conducting the

search have ‘reasonable or probable cause’ to believe that they will

find the instrumentality of a crime or evidence pertaining to a

crime before they begin their warrantless search.”

And see, Chambers v Maroney, 399 US 42, 49, 51; 90 S Ct 1975;

26 L Ed 2d 419 (1970):

“*The right to search and the validity of the seizure are not

dependent on the right to arrest. They are dependent on the rea-

sonable cause the seizing officer has for a belief that the contents

of the au‘omobile offend against the law.’” [Quoting from Carroll

v United States, supra. ]

* . * . s

“Only in exigent circumstances will the judgment of the police

as to probable cause serve as a sufficient authorization for a

search.”

49

the weapon search was said to be standard police

procedure in such a ease. Cady.*

II—GENERAL LEGAL OBSERVATIONS

While Coolidge, Preston and Cady are closest to prece-

dent for White, a few more general observations on the

background law are in order.

To begin with, it is fair to report that Chmiel v Califor-

nia, 399 US TH2, 755; 89'S Ct 2034; 23 L Ed 2d 685 (1969),

one of the more recent of the leading eases in the field,

said in passing:

... The decisions of this Court bearing upon that

question [warrantless search incident to arrest] have

been far from consistent...” 593 US 752, 755.

Furthermore, an earlier case, //arris y United States,

del US 145, 150; 67 S Ct 1098; OL I Ed 2d 1399, 1947),

made the following remark:

* ... The test of reasonableness cannot be stated

in rigid and absolute terms. ‘Each case is to be decided

on its own facts and circumstances.’ Go-Bart Import-

ing Cov United States, 282 US 344, 357 (1931)."

To return to Chime/, the Court there said:

‘ nad ly

hus although ‘[t]he reeurring question of the

reasonableness of searches’ depend upon ‘the facts and

4 Whatever the validity today, under Supreme Court cases, of the

Michigan cases, People v Herper, 365 Mich 494; 113 NW2d 808 (1962)

and People v Williams, 383 Mich 549; 177 NW2d 151 (1970), decided

prior to Cady, they are distinguishable from White, first, in that the

arresting officers did not, when they came upon the scene in the former

cases know what they were looking for in the car searched, and, sec-

ondly, because they did not have the “exigent circumstances” present

that the instant case presents.

00

circumstances—the total atmosphere of the ease’ id.,>

at 635, 66 (opinion of the Court), those faets and c¢ir-

cumstances must be viewed in the light of established

Fourth Amendment principles.” 395 US 752, 765.

Finally Chambers v Maroney, supra, 399 US 42, 48,

made a point which underlies many of the eases:

“In terms of the circumstances justifying a war-

rantless search, the Court has long distinguished be-

tween an automobile and a home or office.”

See also Dyke vy Taylor Implement Manufacturing Co,

supra, 391 US 216, 221; Brinegar v United States, 338 US

160, 176-177; 69 S Ct 1502: 98 Lb. Ed 1879 (1949): Carroll v

United States, supra, 207 US 152, 151.

In passing, the article, * Warrantless Searches and Seiz-

ures of Automobiles.” ST Harv L Rev 835 (1974), presents

a fairly workable rule of thumb with which to proceed:

‘In black letter law, the basie rule for warrantless

automobile searches and seizures is easy to state: a

ear may be searched or seized without warrant if

there are both exigent circumstances and probable

cause to believe that the car will yield) contraband

or evidence useful for prosecution of crime.” Id, 835.

5 Referring to United States v Rabinowitz, 339 US 56; 70 S Ct

430; 94 L Ed 653 (1950).

d1

IV—APPLYING COOLIDGE, PRESTON

& CADY TO WHITE

A.—Critical Factors in White

In the light of these lessons from Coolidge, Preston and

Cady, plus other salient case observations, the critical fac-

tors in White are:

1)

3)

4)

White involves a crime of violence, murder, and an

unlocated gunman said to be dangerous;

The police learned of the identity and whereabouts

of the alleged murdered between 1 A.M. and 2 A.M.

Thanksgiving morning, a day when no magistrate was

available (45a; 77a; Trial Transcript, p 5]

The informer “told us [the police] the pistol was ei-

ther in his bedroom [drawer] or in the trunk of the

ear” “under some rags.” The ear was described as a

“D6 Ford... yellow two door, had a big dent in the

back of the trunk” with an outside padlock [26b-27b;

8b; 28b; Sda; Sla-S2a];

The informer deseribed the hand gun which he had

seen in the alleged murderer’s possession before the

murder. Incidentally he identified it at trial and a

ballisties expert tied the murder bullet to that weapon

[25b; 38b-39b; 23b-24b; 89a-90a];

The police were informed that the alleged murderer

had a gun and ‘‘was going to resist arrest if any

policemen came to take him” [6b];

6 See “Warrantless Searches & Seizures of Automobiles,” 87 Harv

L Rev 835 (1974).

oe]

a2

6) The police were concerned that the murder weapon

not be destroyed [2b].

B.—Application of Law to White

Checking our own criteria and having in mind the “at-

mosphere” test and the twin requirements of exigency and

probable cause, we begin by distinguishing the faets in

White from those in Coolidge where the investigation had

lasted over a week with the cooperation of the defend-

ant, with no indication of flight on his part and where

there had been “ample opportunity to destroy any evi-

dence he thought ineriminating “ As the Court remarked

in Coolidge, there was no exigent imperative.

White on the other hand reeks with exigent impera-

tives.’ To begin with, there is a murderer loose who is al-

leged to be dangerous, the police learn of his whereabouts

between | and 2 A.M. Thanksgiving morning. Upon arrest

at about 2:15 A.M. the same morning and seareh of his

apartment the alleged murder weapon is not found but the

information received is that the gun if not in the bedroom

ix in the trunk of an aptly deseribed car which should be

at that hour, and was, parked nearby across the street.

While the defendant is under arrest, his wife and Bill

Sinith are not and there is always the possibility that one

of them could remove the ear or the gun. In addition there

exists the possibility that the weapon will fall into the

wrong hands. Beeause it is Thanksgiving Day and before

7 We do not suggest exigent circumstances would not be established

by factors not us numerous or persuasive as these. We merely empha-

size that in this case the circumstances are overwhelmingly supportive

of such a finding.

D3

daylight the possibility of finding a magistrate to secure

a warrant is illusory.*

While certain of the accessory faets in Cady, such as

semi-police custody of the car, (but see Preston) and stand-

ard procedure, are not present in White, the facts in White

certainly argue as strongly for reasonableness, especially

in light of Cady's real rationale for intrusion into the ve-

hicle; **Coneern for the safety of the general publie who

might be endangered if an intruder removed a revolver

from the trunk of the vehicle.” 413 US 433, 447.

Additionally, the negative pregnant in Coolidge states

that there were “no exigent circumstances” (403 US 443,

464) where, among other things, there had been “ample op-

portunity to destroy any evidence he [the defendant]

thought incriminating.” (403 US 443, 460.) Putting it the

other way around, where there is an opportunity to de-

stroy evidence that is an exigent circumstance. The de-

fendant’s wife, who was with defendant at the time of ar-

rest and witnessed the police search in the apartment for

evidence might very well have “destroyed [the] evidence”

or removed the gun from the trunk of defendant's ear, had

the police not done so.

So much for the posture of the ease relative to the “exi-

geney” required to justify a warrantless seaerh.

* The inability of the police to get a magistrate to consider issuing

a warrant before sunup or at any time during Thanksgiving lay, we

believe goes to “exigency.” Support for this view is found in Curroll v

United States, supra. Coolidge endorses this Carroli point of view at

403 US 443, 459-460, as follows:

“The underlying rationale of Carroll and of all the cases that

have followed it is that there is

““*a necessary difference between a search of a store, dwelling

house or other structure in respect of which a proper official war-

rant readily may be obtained, and a search of a ship, motor boat,

wagon or automobile, for contraband goods, where it is not prac-

ticable to secure a warrant because the vehicle can be quickly moved

out of the locality or jurisdiction in which the warrant must be

sought.’ 267 U.S. at 153. (Emphasis supplied [by Coolidge].)

ot

As to the officers’ “probable cause,” the informer, who

identified himself as having known the defendant for some

time, as having plotted similar bus thefts and as having

been with the defendant shortly before the crime, deseribed

defendant in a manner to conform with police information

about him. Furthermore, the informer not only told the

police where to find the defendant but that the alleged

murder weapon would be in one of two places, the latter

being the ear trunk, where it was found. The White case

for ‘‘probable cause” seems at least as strong as Cady.

See also Coolidge and Preston.

The sum of the cireumstances—the general atmosphere

—support the reasonableness of the search, espeeially in

view of Cady ‘and the reserved exceptions in Coolidge

and Preston.

V—INFORMER CREDIBILITY

Justice Swainson goes in back of the search to the re-

liability of Dan Johnson upon whose information the police

found probable eause to arrest defendant. His opinion

notes that the record reveals no prior contact between the

police officers and Johnson until he walked voluntarily

into the police station.

However, once there Johnson informed the police that

he and the appellant had gone to the scene of the erime

on several oceasions to watch buses and plan a robbery

of a bus driver. The latest discussion as to a robbery

took place on the day of the crime. Johnson related that

defendant owned a handgun whieh he had seen and which

at times defendant kept in his automobile. The handgun

deseribed by Johnson was the type used in the slaying

of the bus driver.

dD

Johnson's information was based upon his personal

experience and knowledge. This is suflicient to satisfy the

requirement that Johnson acquire his information in a

trustworthy fashion. Moreover, his detailed story, eorro-

borated in detail by the information the police already pos-

sessed, was, in this ease, suflicient basis to establish his

credibility.” See People vy Tisi, 384 Mich 214; 180 NW2d

SOL (1970).

Here the police had probable cause to believe that the

murder weapon was in the trunk of the ear. Common

sense and our duty to pay appropriate deference to a de-

termination of probable cause by the trial couri compel

us to conclude that the police had adequate cause to rely

upon the information of Dan Johnson and that the result-

ant search was indeed reasonable.

VI—APPELLANT'S STATEMENTS ADMISSIBLE

We concur in Justice Swainson’s analysis on this point.

VII—CONCLUSION

We would aftirm.

/s/ Mary 8S. Coleman

/s/ G. Mennen Williams

* Justice Swainson points to Draper v United States, 358 US 307;

79 S Ct 329; 3 L Ed 2d 327 (1959) as stark contrast to the instant

case. However, the Court in Draper noted:

“‘In dealing with probable cause, . . . as the very name im-

plies, we deal with probabilities. These are not technical; they are

the factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act.’ Brineyar

v United States, supra, at 175. Probable cause exists where ‘the

facts and circumstances within [the arresting officers’] knowledge

and of which they had reasonably trustworthy information [are]

sufficient in themselves to warrant a man of reasonable caution in

the belief that’ an offense has been or is being committed. Carroll

v United States, 267 U.S. 132, 162.” [Footnote omitted.] 358 US

307, 313.