# Petition for Writ of Certiorari — Michigan v. White > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0128%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 420 U.S. 912 ## Text 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.— 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0128%3A1. Public record. Not legal advice.