People v. Wade , 23 Mich. App. 132 ( 1970 )

23 Mich. App. 132 (1970) 178 N.W.2d 139

PEOPLE
v.
WADE

Docket No. 7,765.

Michigan Court of Appeals.

Decided March 31, 1970. Leave to appeal denied September 22, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.

Lee R. Franklin, for defendant on appeal.

Before: T.M. BURNS, P.J., and HOLBROOK and BRONSON, JJ.

Leave to appeal denied September 22, 1970. 384 Mich. 758.

PER CURIAM.

In the early morning hours of June 12, 1968, Ernest Anderson was relieved of his watch and wallet by two men.

At approximately the same time, a patrol sergeant with the Highland Park Police Department was driving an unmarked patrol car south on Woodward Avenue. The officer observed the defendant and a companion attempting to cross Woodward Avenue on foot against the light. As the officer drew up to the cross walk, he heard the complainant, Ernest Anderson, repeatedly cry for help. The policeman noted that the defendant and his companion had been walking briskly from the general vicinity of the calls for help. The policeman stopped the patrol car, got out, and ordered the pair to stop. The complainant was approximately 15 feet from the place where the two men were ordered to halt.

After the policeman asked the men to stop, he saw the defendant's companion throw a watch and a wallet to the ground. The defendant started to walk around to the back of the patrol car but was ordered by the policeman to come back. The officer then radioed for assistance and was joined by two fellow officers within a minute. One of these assisting officers conducted a search of the defendant and discovered a pistol tucked down in the back of his pants.

The defendant went to trial October 14, 1968, and was convicted by the court, sitting without a jury, of robbery unarmed and of carrying a concealed weapon.^[1] Following a motion for a new trial, the conviction on the first count was set aside but a motion to set aside the conviction on the second count was denied.

On appeal, the defendant argues that: the policeman lacked probable cause to make the arrest; the search was too extensive; and the prosecution failed to prove beyond a reasonable doubt the requisite elements of intent and lack of license to carry a concealed weapon as required by CL 1948, § 750.227 (Stat Ann 1962 Rev § 28.424).

In reviewing the defendant's claim that the policeman lacked probable cause, it is the function of this Court to determine whether the facts available to the officer at the moment of arrest would warrant a fair-minded person of average intelligence and judgment in believing that the suspected person had committed a felony. People v. Sansoni (1968), 10 Mich. App. 558; People v. Wolfe (1967), 5 Mich. App. 543; People v. Livermore (1967), 9 Mich. App. 47; People v. Harper (1962), 365 Mich. 494. The conduct of a suspect when detained for inquiry is one of the factual circumstances which may justify a warrantless arrest, as where the defendant seeks to avoid apprehension and destroy what would be evidence against him. People v. Jackson (1968), 98 Ill App 2d 238 (240 NE2d 421); People v. Cruz (1964), 61 Cal 2d 861 (395 P2d 889).

Looking at all the facts available to the officer at the time of his order to defendant and his companion to stop: the lateness of the hour; the cries for help; the rapid pace of walking from the vicinity of the complainant; and the attempt to cross Woodward against the light, justified the detaining of the pair by the officer for inquiry.

"Relying primarily upon Rios v. United States (1960), 364 U.S. 253, 262 (80 S. Ct. 1431, 4 L. Ed. 2d 1688), we have recently held that `there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest, for purposes of limited inquiry in the course of routine police investigations'; and that the test of the validity of such a brief detention is whether `from the totality of the circumstances' it appears that the detention was based upon `reasonable grounds' and `was not arbitrary or harassing.' Wilson v. Porter (CA 9, 1966), 361 F2d 412. Supporting authority from this court includes Davis v. People of State of California (CA 9, 1965), 341 F2d 982, 986; Lipton v. United States (CA 9, 1965), 348 F2d 591, 593; Busby v. United States (CA 9, 1961), 296 F2d 328, 331."^[2]Gilbert v. United States (CA 9, 1966), 366 F2d 923, 928.

Added to the facts justifying the detaining of the defendant and his companion for inquiry, the officer observed the discarding of the wallet and the watch by one of the pair. At this point we conclude that the policeman had probable cause to make the arrest.

This being so, the officer making the lawful arrest had authority to search the person of his prisoner and to take from him dangerous weapons. We see no reason why an assisting officer relying upon the directions of the arresting officer could not make the search when made reasonably contemporaneous with the arrest. State v. Pokini (1961), 45 Haw. 295 (367 P2d 499); People v. Richardson (1959), 51 Cal 2d 445 (334 P2d 573); Broussard v. State (1958), 166 Tex Crim 224 (312 S.W.2d 664).

The claim of defendant that the search was too extensive is without merit. When probable cause is present justifying a lawful arrest without a warrant, the subsequent search may be thorough to the extent of discovering any weapon that might be upon the person arrested. People v. Gant (1966), 4 Mich. App. 671, 674.

Finally, after reviewing the lower court record we are convinced that competent evidence was before the trial court on the element of intent. In a concealed weapons case it is only necessary to show intent to carry the weapon. People v. Williamson (1918), 200 Mich. 342. The intent to carry the weapon can be gathered from the fact that the defendant had the pistol on his person and concealed in a purposeful manner.

As to defendant's claim that there was not sufficient evidence produced on the trial to show that he did not possess a license to carry a gun, we look to the record and find that Mr. Robert Fisher, from the Wayne county clerk's office, testified that he had checked the records for the past 20 years and that up to and including July 22, 1968 he had found no record of a license having been issued to the defendant. The date of the offense was June 12, 1968. It is a familiar principle of appellate review that where there is any evidence to sustain the charge in the information, this Court will not attempt to weigh it or to see whether the court sitting without a jury ought to have considered it "sufficient" to sustain the charge. People v. Dolphus (1966), 2 Mich. App. 229; People v. Williams (1966), 3 Mich. App. 272; People v. Ritzema (1966), 3 Mich. App. 637; People v. Bennett (1966), 3 Mich. App. 326.

Affirmed.

NOTES

[1] CL 1948, § 750.227 (Stat Ann 1962 Rev § 28.424).

[2] The Court of Appeals for the Second Circuit has gone farther, permitting detention of substantial duration without probable cause. See United States v. Middleton (CA 2, 1965), 344 F2d 78, 80, 81 (dictum); United States v. Vita (CA 2, 1961), 294 F2d 524, 529, 530.