Opinion
Docket No. 2,000.
Decided November 27, 1967.
Appeal from Jackson; Dalton (John C.), J. Submitted Division 2 December 9, 1966, at Lansing. (Docket No. 2,000.) Decided November 27, 1967.
Edward Ray Bracy, Wilbert Thomas, Willie Sims, Willie Smith, Mary Ella Thomas, and Riley Bell were convicted of conspiring to violate the gaming laws. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James G. Fleming, Prosecuting Attorney, and Bruce A. Barton, Chief Assistant Prosecuting Attorney, for the people.
Stuart J. Dunnings, Jr. ( Benjamin F. Gibson, of counsel), for defendant.
Defendants Edward Ray Bracy, Wilbert Thomas, Willie Sims, Willie Smith, Mary Ella Thomas, and Riley Bell appeal their January 12, 1965 conviction by the court, sitting without a jury, of conspiracy to violate the gaming laws of the State of Michigan.
This defendant's name has been spelled both "Bracy" and "Bracey" in the lower court record. He died during pendency of this appeal.
CL 1948, § 750.301 et seq. (Stat Ann 1954 Rev § 28.533 et seq.); CLS 1961, § 750.505 (Stat Ann 1954 Rev § 28.773).
On or about March 31, 1960, certain members of the Michigan State police racket squad commenced a surveillance of the actions and movements of certain persons in the city of Jackson, Michigan. On July 8, 1960, pursuant to search warrants issued by a justice of the peace, the Michigan State police and the Jackson city police raided two premises located in the city of Jackson. Mutuel slips, betting slips, money, and other items alleged by the police to have been used for gaming purposes were seized. All of the defendants were arrested within a short time after the execution of the search warrants.
On December 30, 1960, the defendants filed a motion to suppress the evidence and quash the information alleging that one of the search warrants and the accompanying affidavit was insufficient and void and that, therefore, the evidence seized should be suppressed. On May 29, 1961, the trial court denied the motion to suppress the evidence and to quash the information. On April 4, 1962, application for leave to appeal the denial of the above motion was filed in the Michigan Supreme Court. On September 3, 1964, the Michigan Supreme Court entered an order as follows:
"That the application for leave to appeal be, and the same is hereby, DENIED, for the reasons that it appears that the search and seizure complained of were legal and constitutional, and that nothing further of moment could be added if an appeal were granted."
On December 15, 1964, trial commenced before the circuit court and testimony was concluded the following day. By opinion dated January 12, 1965, the court found each of the defendants guilty as charged. On February 19, 1965, each of the defendants was sentenced.
Search and Seizure
The first five issues raised on appeal concern the validity of the search and seizure that occurred on July 8, 1960. The affidavit submitted to the justice of the peace in support of the search warrants here questioned is quite lengthy and consists of approximately 52 pages of alleged observations by members of the State police racket squad.
Basically, the subjects of these observations were defendants Smith, Sims, and Wilbert Thomas. The typewritten notes of the police officers disclose that the three defendants made numerous short visits to houses located within the city of Jackson. Often the observations commenced and ended at 704-1/2 S. Milwaukee or 311 Biddle street in Jackson. These observations also disclosed that these defendants normally met immediately prior to 2 p.m. at either the Milwaukee or Biddle street addresses. After several minutes this rendezvous would terminate and the surveillance would be discontinued.
On several occasions, not immediately prior to the arrest, defendants were observed carrying brown paper bags. Defendant Sims was once observed with his "pockets bulging" and on June 17, 1960, Sims was handed a yellow mutuel slip by an unidentified man.
Michigan law states that a magistrate may not issue a search warrant "without probable cause, supported by oath or affirmation." The magistrate is required to find probable cause "from the facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough." Aguilar v. Texas (1964), 378 U.S. 108 ( 84 S Ct 1509, 12 L ed 2d 723), citing Nathanson v. United States (1933), 290 U.S. 41 ( 54 S Ct 11, 78 L ed 159).
Const 1908, art 2, § 10. See, currently, Const 1963, art 1, § 11.
While probable cause is difficult to define, it is clear that the term "means less than evidence which would justify condemnation." United States v. Ventresca (1965), 380 U.S. 102 ( 85 S Ct 741, 13 L ed 2d 684). In the instant case the facts and circumstances as set forth in the affidavits form a sufficient basis for the issuance of the warrant.
In so holding we are not unmindful of the Michigan law which states:
"`The right to issue a search warrant rests upon facts existing at the time the showing is made for the warrant.'" People v. Wright (1962), 367 Mich. 611, 613, citing People v. Chippewa Circuit Judge (1924), 226 Mich. 326, 328.
The present case is readily distinguishable from the above cited cases in that the magistrate was presented with an affidavit which recited facts to show the alleged illegal activity continued from the date of initial surveillance to the date of issuance of the warrant.
The search warrants for 704-1/2 S. Milwaukee and 311 Biddle street were executed simultaneously. The search of the Milwaukee address uncovered "dream books, playing cards, and a copy of race results with the winning mutuel slips marked." None of the defendants named herein were present at this address.
The raid at 311 Biddle street was considerably more productive. Detective Cluver testified that he was the first to approach 311 Biddle, although Sergeant Avery held the search warrant. Detective Cluver knocked once and heard a voice from the inside. He knocked again, stated it was the police, and when he received no answer, he attempted to open the door. The door was locked and the detective subsequently gained entrance by forcing it open.
As the officers entered the dining room they observed defendants Bracy, Wilbert, Thomas and Mrs. Thomas at the dining room table. On the table was a telephone, an adding machine, and several mutuel slips. The officers also found a pad with several horse bets, numerology sheets, racing forms, a strongbox containing 396 post-dated mutuel slips, other mutuel slips, a telephone bill for $292 and some cash. At the time of this raid, defendant Wilbert Thomas made an incriminating statement which was admitted into evidence.
When the trial began defense counsel raised a continuing objection to the items seized during the raid "because the raid was illegal and improper, based upon our claim of a void affidavit and search warrant."
On appeal, it is claimed that the entry prior to the search and seizure at 311 Biddle was illegal and therefore the search and seizure were illegal. However, this issue was not raised in the trial court nor was it included in the continuing objection and will not be considered by this Court "unless necessary to prevent manifest injustice." People v. McLaughlin (1966), 3 Mich. App. 391, 394. The facts presented to this Court do not indicate that manifest injustice would result by our decision not to consider this issue raised for the first time on appeal. Arrest
See CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096). — REPORTER.
Defendants Wilbert Thomas, Mary Ella Thomas and Bracy were arrested at the time of the raid at 311 Biddle. As we have already sustained the search warrants and the search and seizure pursuant to these warrants, we find nothing erroneous in the arrest of these defendants.
Defendants Sims, Smith and Bell were arrested and searched without warrants. These arrests occurred the same day as the raids and each defendant had been under surveillance.
Defendant Sims was placed under arrest at his residence by a State police officer acting under instructions of his superior. Sims responded to a knock at his door and was advised that he was under arrest for conspiracy to violate the state gaming laws. At this time Sims consented to a search of the premises. The subsequent search disclosed cash on a table, mutuel slips, bet slips, and numbers books. When asked where the money came from, Sims told the officer "that is what he had picked up for the numbers that day." The arresting officer testified that he did not advise Sims of his right to an attorney or that anything he said could be used against him. The officer also stated that at no time did Sims request an attorney.
Defendant Smith was placed under arrest by another State police officer who had taken part in the surveillance. Smith's wallet, which was taken from him, contained current dated bet slips for July 8, 1960. At the time of the arrest, Smith, in response to questioning, stated that he had been in the numbers racket for six weeks. Smith was not informed of his constitutional rights although there is nothing to show that he requested and was denied counsel.
The same officer that arrested Smith also arrested defendant Bell at his residence. Bell consented to a search of his person and automobile, the latter disclosing a mutuels pad with a current dated mutuel slip. Bell was not advised of his constitutional rights and he told the officer he was taking over Willie Smith's numbers route. Again, there was no testimony that defendant requested and was denied counsel.
CL 1948, § 764.15 (Stat Ann 1954 Rev § 28.874) permits peace officers to make an arrest without a warrant upon reasonable cause to believe that a felony has been committed and that such person has committed it. The existence of probable cause "depends in every case upon the peculiar circumstances confronting the arresting officer. * * * He makes his determination, and we review it, not as a legal scholar determines the existence of consideration in support of a promise, but as a man of reasonable prudence and caution would determine whether the person arrested has committed a felony." People v. Harper (1962), 365 Mich. 494, 501. We find nothing in the above standard that would invalidate the arrest of defendants Sims, Smith and Bell. We likewise find no basis for defendants' contention that the searches and seizures subsequent to these arrests were unreasonable within the constitutional meaning of that term.
Constitutional Right to an Attorney and Right to Remain Silent
Defendants' next contention is that the trial court committed reversible error by the admission into evidence of their incriminating statements. Defendants cite Escobedo v. Illinois (1964), 378 U.S. 478 ( 84 S Ct 1758, 12 L ed 2d 977), and contend that this decision is applicable since they were not advised of their right to an attorney and right to remain silent. However, this Court has consistently held that Escobedo is limited to the situation where an accused has requested to see his attorney and this request has been ignored. See People v. Castelli (1967), 7 Mich. App. 1, and cases cited therein. As the trial in the instant case occurred in 1964, the recent decision of Miranda v. Arizona (1966), 384 U.S. 436 ( 86 S Ct 1602, 16 L ed 2d 694) has no application and therefore these statements were properly received into evidence.
Past Recollection Recorded
At trial the court permitted the officers who conducted the surveillance to read from typewritten memoranda. These writings set forth the detailed activities of defendants from commencement of surveillance to arrest.
Prior to reading the memoranda the officers testified: (1) That the typewritten memoranda were accurately prepared each day from notes which they made at the scene of the observation and from their memory of what occurred that day. (2) That they could not, at the time of trial, recall the details of their observations and that the memoranda would not refresh their recollection. (3) That the original handwritten notes were destroyed.
Defendants contend that by allowing the officers to read the memoranda they were denied their constitutional right of confrontation of witnesses. This very issue was presented in People v. Hobson (1963), 369 Mich. 189. In Hobson, by split decision the Court allowed the memoranda to be read.
Justice DETHMERS, in writing for affirmance, stated at pp 191, 192, quoting from Rice v. Fidelity Casualty Company of New York (1930), 250 Mich. 398:
"`This Court has held that a memorandum made by a witness, at the time, if the witness has no present remembrance, and his recollection is not refreshed by his own memorandum, may, if the witness testifies it was true when made, be admitted in evidence.'"
We have followed the controlling opinion in Hobson on prior occasion and see no compelling reason why we should not follow it in this case.
People v. Blakes (1966), 4 Mich. App. 13.
Sufficiency of Evidence
The last allegation of error is that the court erred in refusing to direct a verdict of not guilty. The evidence received at trial implicated each defendant in the conspiracy and no evidence was offered on behalf of any defendant. After a thorough review of the record, we find that there was sufficient competent evidence presented at the trial to sustain the verdict.
Judgment affirmed.
T.G. KAVANAGH, P.J., and McGREGOR, J., concurred.