Opinion
Docket No. 21100.
Decided March 25, 1976.
Appeal from Livingston, Paul R. Mahinske, J. Submitted February 3, 1976, at Lansing. (Docket No. 21100.) Decided March 25, 1976.
James D. Freed was convicted of carrying a concealed weapon and carrying a firearm with unlawful intent. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas J. Kizer, Jr., Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, Director and Dennis M. Powers, Special Assistant Attorney General, of counsel), for the people.
James D. Freed, in propria persona.
Before: M.J. KELLY, P.J., and V.J. BRENNAN and DANHOF, JJ.
Defendant, James Donald Freed, was convicted of carrying a concealed weapon, MCLA 750.227; MSA 28.424, and carrying a firearm with unlawful intent, MCLA 750.226; MSA 28.423, on June 6, 1974, after a two-day jury trial. On July 16, 1974, defendant was sentenced to concurrent prison terms of 2-1/2 to 5 years on each count. Defendant appeals as of right.
Defendant was arrested by Michigan State Police officers pursuant to a bench warrant issued by the Ingham County Circuit Court which was hearing a tax case in which the defendant was being sued by the State of Michigan. In a search incident to the arrest, the officers found and seized a .22-caliber pistol which defendant was carrying concealed on his person without a license to do so. Defendant moved to suppress the evidence on the grounds that it was the fruit of an illegal arrest. Defendant's motion was denied.
Defendant contends that his arrest by the Michigan State Police was unauthorized and unlawful, relying on MCLA 28.6; MSA 4.436. The statute provides in pertinent part:
"Any such member of the said department may serve and execute all criminal and civil process, when directed to do so by the governor or the attorney general, in actions and matters in which the state is a party. The commissioner and said department shall be under the immediate control and direction of the governor, and any member thereof may be employed by the attorney general in any investigation or matter under the jurisdiction of his department."
Defendant contends that his arrest was in contravention of this statute, in that the arrest was not personally authorized by the Governor or the Attorney General. We disagree. We note that MCLA 14.35; MSA 3.188 provides that an assistant attorney general may:
" * * * appear for the state in any suit or action before any court or administrative body * * * with the same powers and duties and in like cases as the attorney general, but shall at all times be subject to the orders and directions of the attorney general."
We do not believe that the Legislature intended that the Attorney General or the Governor personally authorize each and every arrest made by an officer of the Michigan State Police. Rather, we think the Legislature intended that the Governor and the Attorney General act through duly authorized subordinates.
We are cited to no case which expressly construes the provisions of this statute, and we can find none. The Attorney General of the State of Michigan, however, has consistently opined that the Michigan State Police may serve civil process when directed by the Governor or the Attorney General in actions in which the state is a party. See 1 OAG, 1957, No 2,883, p 160 (April 12, 1957) and other opinions cited therein. We agree with the Attorney General.
In the case at bar, the arrest was authorized by an Assistant Attorney General and the State of Michigan was a party to the action. We hold that the officers of the Michigan State Police were authorized by MCLA 28.6; MSA 4.436 and MCLA 14.35; MSA 3.188 to arrest the defendant.
Defendant's reliance on the case of United States v Giordano, 416 U.S. 505; 94 S Ct 1820; 40 L Ed 2d 341 (1974), is misplaced. There, the United States Supreme Court in construing 18 U.S.C. § 2516(1) held that the statute must be read as limiting the authority to authorize wiretaps to the officials specified in the statutory language, since the statute was intended as a prophylactic device designed to prevent abuses of the wiretap power by insuring that the power would be granted only to a small number of identifiable and politically responsible individuals. Such policy considerations are notably absent from the case at bar, so we find Giordano inapposite.
Finally, defendant contends that certain portions of the transcript were withheld from him by the trial judge. This Court has previously ruled on this matter by an order dated November 12, 1975. Therein we denied defendant's motion for preemptory reversal,
"because the defendant-appellant has failed to specify the portions of the transcript which are allegedly being withheld by the trial judge. This denial is without prejudice to the appellant's filing in this Court of an appropriate motion specifying those portions of the transcript which he alleges are being withheld."
Since the defendant has not favored us with such a specific motion, we see no reason to disturb that portion of our November 12, 1975, order.
Affirmed.