Opinion
Docket No. 8390.
Decided March 23, 1971. Leave to appeal denied July 19, 1971, 385 Mich. 771.
Appeal from Genesee, Donald R. Freeman, J. Submitted Division 2 February 2, 1971, at Lansing. (Docket No. 8390.) Decided March 23, 1971. Leave to appeal denied July 19, 1971, 385 Mich. 771.
Roscoe McFadden was convicted of carrying a concealed weapon and possession of narcotics. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.
William A. Shaheen, Jr., for defendant on appeal.
From his conviction by a jury of carrying a concealed weapon, MCLA § 750.227 (Stat Ann 1962 Rev § 28.424), and possession of drugs, MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123), defendant appeals of right.
Defendant's troubles began acorn size when he was stopped by the police for operating an automobile without headlights. Thereafter they grew to the proportions of a mighty oak. When he was unable to produce a driver's license, he was placed under arrest. Pursuant to the "normal procedure" employed by Flint's police officers, defendant's person was searched for weapons. The search disclosed a revolver which the police seized. As the officers escorted defendant to the police cruiser, preparatory to taking him to the station, they observed defendant drop a small white envelope. A subsequent analysis disclosed that the envelope contained cocaine and amphetamines.
Defendant may believe, with some justification, that the police received a "windfall" at his expense. Mayhaps this is true. Such, however, is a sometime peril of carrying an illegal weapon and proscribed narcotics.
An initial allegation by defendant is that the revolver and drugs were products of an illegal search and seizure and, therefore, inadmissible in evidence.
By statutory authority, police officers may arrest one who does not have in his immediate possession a valid operator's license. MCLA § 257.727 (Stat Ann 1968 Rev § 9.2427). Even though the officers may have been aware of defendant's identity and that he was a resident of the neighborhood, whether they released him from custody with written instructions to appear in court, or whether they retained custody pending examination before a magistrate, rested in the officers' discretion. MCLA § 257.727, supra.
Having once decided to arrest the defendant, the officers were justified in making a reasonable search, without a warrant, for any concealed weapon which might have been used in resisting arrest or in seeking to escape. Chimel v. California (1969), 395 U.S. 752 ( 89 S Ct 2034, 23 L Ed 2d 685); Preston v. United States (1964), 376 U.S. 364 ( 84 S Ct 881, 11 L Ed 2d 777); People v. McDonald (1968), 13 Mich. App. 226 ; People v. Panknin (1966), 4 Mich. App. 19; People v. Gonzales (1959), 356 Mich. 247. To preclude officers from exercising care for their own safety is to invite recurrence of tragedies which have all too frequently attended arrests for minor traffic violations.
In the case at bar the arrest was a legitimate exercise of authority vested in the officers to take into custody one operating a vehicle without a license. Nowhere is there any serious indication that the arrest was a "pretext" whereby a random search for evidence could be carried out. See Gonzales, supra.
The retrieved narcotics also were properly admitted by the court. "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." Harris v. United States (1968), 390 U.S. 234, 236 ( 88 S Ct 992, 19 L Ed 2d 1067). Also, see People v. Beauregard (1970), 21 Mich. App. 224.
Defendant also contends that the statute governing the licensing of concealed weapons is void for vagueness and, therefore, that his conviction pursuant to the statute is fatally defective.
The applicable statute empowers a local board to issue licenses with the following guide lines:
"No such license to carry a pistol concealed on the person or to carry a pistol, whether concealed or otherwise, in any vehicle operated or occupied by the person applying for such license, shall be granted to any person except he be 21 years of age or over, a citizen of the United States, and has resided in this state 6 months or over, and in no event shall such license be issued unless the application for the same is first approved in writing by the township supervisor, when said applicant resides in that part of the county not included within an incorporated city or village, or by the commissioner or chief of police or marshal when the applicant resides in an incorporated city or village having an organized department of police, and unless it appears that the applicant has good reason to fear injury to his person or property, or has other proper reasons, and that he is a suitable person to be so licensed, and in no event to a person who has been convicted of a felony or confined therefor in this state or elsewhere during the 8 year period immediately preceding the date of such application or has been adjudged insane unless he has been restored to sanity and so declared by court order." MCLA § 28.426 (Stat Ann 1971 Cum Supp § 28.93).
Because of the State's legitimate interest in limiting access to weapons peculiarly suited for criminal purposes, the right to bear arms, like all other rights, is subject to the reasonable exercise of the police power. People v. Brown (1931), 253 Mich. 537. Also, see United States v. Miller (1939), 307 U.S. 174 ( 59 S Ct 816, 83 L Ed 1206), which approvingly cites Brown, supra.
Pursuant to constitutional requirements, the statute enumerates explicit criteria to guide the concealed weapon licensing board in processing applications. Thus, any suggestion that absence of standards creates a potential for arbitrary action lacks merit.
As a third assignment of error, defendant contends that the trial court permitted rebuttal argument beyond matters raised in defense counsel's closing argument. GCR 1963, 507.6. We find this allegation to be without merit. An examination of the record discloses that the prosecutor's argument did not exceed permissible limits. Even if such violation did occur, defendant has failed to demonstrate any miscarriage of justice sufficient to necessitate a reversal of the judgment of conviction. People v. Winegar (1968), 380 Mich. 719.
The claimed error, if any, must be viewed as harmless. GCR 1963, 529.1.
Lastly, a denial of due process is alleged to arise from failure of the trial judge to allow defendant or his counsel to review the presentence report. On previous occasions we have held that a trial judge has no duty to allow either party an opportunity to examine the presentence report. People v. Malkowski (1970), 25 Mich. App. 195; People v. Charles Williams (1969), 19 Mich. App. 544; People v. Beard (1969), 17 Mich. App. 409. Review of these reports rests within the sound discretion of the trial court. In the instant case the defendant has failed to demonstrate an abuse of discretion.
Affirmed.
All concurred.