Opinion
Docket No. 10103.
Decided April 23, 1973.
Appeal from Tuscola, James P. Churchill, J. Submitted Division 2 January 6, 1972, at Lansing. (Docket No. 10103.) Decided April 23, 1973.
Roy L. White was convicted of uttering and publishing after his motion to suppress evidence was denied. Defendant appealed. Cause remanded for an evidentiary hearing on defendant's motion to suppress evidence, but the Court of Appeals retained jurisdiction. Motion denied by circuit court. Reversed and remanded.
Henry L. Greenwood, for defendant on appeal.
Before: LESINSKI, C.J., and McGREGOR and QUINN, JJ.
This cause was remanded to the trial court for proceedings which were held on March 2, 1972. An evidentiary hearing was had on a motion to suppress evidence. The questioned evidence, exhibits 1 and 2, was a driver's license and a check which were found in the vehicle occupied by the defendant. Upon conclusion of the evidentiary hearing to suppress the evidence, the trial court found that the check and driver's license were not found as a result of a search. The trial court found that the check and driver's license were in the plain view of the arresting officer as he looked into the defendant's vehicle. The check and driver's license were shoved down into the back seat but a corner was visible to anyone looking inside the car.
The trial court upheld the seizure of exhibits 1 and 2 in this case on the basis of the "plain view doctrine", Harris v. United States, 390 U.S. 234; 88 S Ct 992; 19 L Ed 2d 1067 (1968); People v. Kuntze, 371 Mich. 419 (1963), the effect of which is to say that no search occurred; that the offensive matter was plainly visible and thus subject to seizure without an arrest or search warrant.
We find that the "plain view doctrine" has no applicability to the facts of this case. The evidence taken was not contraband. At the time the police officer saw the evidence he had no way of knowing that it was evidence of a crime. Unlike a gun, knife, narcotics, alcoholic beverages or obvious contraband, the driver's license and check did not become evidence of a crime until further investigation tied it into the case. As the United States Supreme Court said in Coolidge v. New Hampshire, 403 U.S. 443, 461-462; 91 S Ct 2022, 2035-2036; 29 L Ed 2d 564, 580 (1971):
"The word `automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States [ 267 U.S. 132; 45 S Ct 280; 69 L Ed 543; 39 ALR 790 (1925)] — 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 evidence, 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,' Carroll, supra, at 153 [ 45 S Ct at 285; 69 L Ed at 551; 39 ALR at 800], and the `automobile exception,' despite its label, is simply irrelevant."
The validity of the seizure of the evidence cannot be tested by subsequent events that substantiate the fact that the matter seized was in fact used as part of the commission of a crime. The validity of the seizure must be determined by the facts at the time of the taking. People v. Iverson, 34 Mich. App. 519 (1971); People v. Carter, 387 Mich. 397 (1972).
In the case before us, merchants in the community of Vassar, prior to the arrest of the defendant on October 18, 1969, were being victimized by a bad check cashing ring resulting in the loss of several hundred dollars. The chief of police of the City of Vassar subsequently warned merchants "that if colored subjects came and tried to cash checks, to make sure they got proper identification, or to try and detain them and call the police". The police chief told Officer Harry Schaub about the bad check operation.
On the evening of October 18, 1969, Officer Schaub received a call relative to Negro males trying to cash a check at Uncle Ray's, Atkins Hardware, a Sunoco service station, and other Vassar businesses. At the Sunoco station he received a description of the car and the license number of the vehicle occupied by the defendant. Officer Schaub enlisted the aid of a Millington policeman, Officer Samdal, and arrested the defendant with other suspects at Werner's Gas Station on M-15 south of Vassar.
Officer Schaub testified at the evidentiary hearing on the motion to suppress the evidence taken at the time of the arrest of defendant. His testimony indicated the only basis for his arrest was the fact that bad checks had previously been passed in the area and the fact that defendant and his companions had tried to cash checks in several Vassar establishments that night. Officer Schaub admitted he would have arrested defendant even if he had not been connected with the previous check cashing ring. Officer Schaub testified that he had not been told that there was anything wrong with the identification or check offered at Uncle Ray's. Police Chief Horwath admitted that mere examination of the check would not disclose that it was an invalid document.
At the time of the arrest Officer Schaub had no information which identified the defendant as being a person who had previously passed bad checks or that he looked like a person known to have passed bad checks in the area. The officer had no information that indicated the driver's license was false identification or that the check that was taken was or appeared to be an invalid instrument. At the time of the arrest and seizure he had no information that would cause him to know that the identification and check he viewed in the car were one and the same or looked like that which was displayed at Uncle Ray's. Clearly, the identification and check did not take on the stature of evidence of a crime at the scene of the seizure. It was only after a further investigation process, after the arrest, that they attained the status of evidence of a crime.
No argument is advanced that the actions of defendant and his companions were out of the ordinary or indicative of criminal activity. At the time Officer Schaub came in contact with defendant he was not seen to be committing a criminal offense; nor was Officer Schaub in possession of information that a crime was committed and that defendant probably committed it. There was no valid basis for the arrest of the defendant at the time it was made and this seizure of challenged evidence cannot be sustained as being made incident to a valid arrest.
Counsel for defendant properly argues that based on the facts of this case one would not even have "probable cause" to obtain a search warrant. The mere fact that a black male, a stranger to the Vassar area, sought to cash a check at a time when merchants were being victimized by a ring of black male check cashers, standing alone as in this case, is not such a fact as would lead an ordinary prudent person to believe that the accused had committed or was committing a crime. At the time of the arrest there was nothing known to the officer to the defendant into a bad check cashing ring.
We reverse, order exhibits 1 and 2 suppressed, and the cause remanded.
Reversed and remanded.
McGREGOR, J., concurred.
My reading of the record discloses facts which fully support the holdings of the trial court that the arrest was legal and that the evidence sought to be suppressed was within the "clear view" of the officer who seized it.
A peace officer may arrest without a warrant, "when he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it;", MCLA 764.15(d); MSA 28.874(d).
This statutory provision was before the Supreme Court in People v. Harper, 365 Mich. 494 (1962). At pages 500, 501, speaking to the determination of the existence of probable cause to arrest without a warrant, a unanimous Court said:
"* * * we will not isolate facts or beliefs from their surrounding circumstances in determining the existence of what has come to be called probable cause for arrest without a warrant.
"Its existence depends in every case upon the peculiar circumstances confronting the arresting officer. [Citing a case.] 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."
This Court applied the same test in People v. Surles, 29 Mich. App. 132 (1970).
What did Officer Schaub know at the time of the arrest in question? He knew that merchants in Vassar had been plagued with a series of bad checks cashed by Negro males. He knew that the merchants had been warned of the situation and that they had been advised to obtain positive identification from strangers attempting to cash checks, and to notify the police in the event of suspicious circumstances.
On the night of the arrest and within about two hours of the arrest, Officer Schaub knew that two Negro males attempted to purchase groceries at Uncle Ray's by check, and that when the cashier requested further identification, they left the store and the groceries and never returned. Thereafter, Officer Schaub knew that Negro males attempted to cash checks at several other places of business, including the Sunoco station. From the station operator Officer Schaub learned the description and license number of a yellow Cadillac containing three Negro males who had attempted to cash a check at the station.
At the gas station where the arrest occurred and prior thereto, Officer Schaub was advised by the operator of the gas station that defendant had attempted to cash a check. Prior to arrest, Officer Schaub requested registration for the Cadillac which fit the description received at the Sunoco station. In response to this request, defendant handed Officer Schaub a registration which matched the physical description of the vehicle, but the license plate number of the registration was different than the one license plate number on the vehicle.
In my opinion, with this knowledge and under these circumstances Officer Schaub acted as a man of reasonable prudence and caution in making the questioned arrest.
Officer Samdal, who saw a corner of a check protruding from the back of the front seat and retrieved it and the driver's license in question, had had nine years experience with the state police. He had a right to be in the position from which he viewed the protruding check. He also knew that they were looking for checks. Search was not involved and the seizure was reasonable, People v. Tisi, 384 Mich. 214 (1970); People v. Potts, 44 Mich. App. 722 (1973).
I would affirm.