T.G. KAVANAGH, J. (dissenting).
Defendant brings this appeal from a decision in the Court of Appeals affirming his conviction for unarmed robbery.
37 Mich. App. 115 (1971).
On February 14, 1971, defendant Henry Robinson was marched into a police station at the point of a rifle wielded by an irate citizen, one John E.W. Jones. Jones alleged that Robinson had tricked him out of 40 dollars. On the strength of Jones's complaint Robinson was arrested and searched. Among his possessions was found a cigarette lighter with the initials "J.T.". A police officer recalled that a similar cigarette lighter had been reported as taken from one Jessie Tate two weeks earlier during a robbery. Mr. Tate was called in, and at a showup, identified defendant as his robber.
Defendant was tried for robbery armed. At trial his attorney made motions to dismiss the charges, and to suppress the evidence. Both motions were denied. Defendant was subsequently found guilty of robbery unarmed and sentenced to not less than 7-1/2 years in prison.
Basically, three issues are present on appeal: 1) Whether the cigarette lighter was produced as a result of an unlawful search and was therefore inadmissible; 2) If the search was unlawful, was the showup identification inadmissible under the "fruit of the poisonous tree" doctrine; and 3) Whether defendant's objections to the admission of this evidence were timely.
The Constitution of the United States guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * *". The general rule is that any search is unreasonable unless conducted pursuant to a validly issued search warrant. No search warrant was issued in this case.
US Const, Am IV.
Only three exceptions to this general rule have been carved out by the many decisions of the United States Supreme Court. First, a search may be lawful when conducted in conjunction with a lawful arrest. Second, an automobile may be searched without a warrant when there is probable cause to believe that an object or substance is hidden within, and there is a possibility that it may be destroyed before a warrant can be obtained. The third exception is that an object in plain view may be properly seized.
Trupiano v United States, 334 U.S. 699; 68 S Ct 1229; 92 L Ed 1663 (1948).
People v Carroll, 267 U.S. 132; 45 S Ct 280; 69 L Ed 543 (1925), Preston v United States, 376 U.S. 364; 89 S Ct 881; 11 L Ed 2d 777 (1964).
People v Tisi, 384 Mich. 214 (1970).
No automobile search is involved here, so the second exception clearly does not apply.
A search made pursuant to a valid arrest is the principal exception to the rule requiring a search warrant. Initially this exception was only allowed upon a showing that the obtaining of a warrant would be impractical. This was subsequently modified to allow any search if reasonable. The exception has recently been narrowed to include only those searches contemporaneous to the arrest, and which are confined to the person and immediate surroundings of the individual arrested.
Trupiano v United States, supra.
United States v Rabinowitz, 339 U.S. 56; 70 S Ct 430; 94 L Ed 653 (1950).
Chimel v California, 395 U.S. 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969).
It is clear that the search in this instance was contemporaneous to the arrest, and was confined to defendant's person. However, the search was unlawful because there was no valid arrest. The power to arrest in Michigan is governed by statute. Jones's private arrest of defendant was for, by his claim, larceny by conversion under 100 dollars, a misdemeanor. A private citizen cannot lawfully arrest another for the commission of a misdemeanor.
MCLA 750.362; MSA 28.594.
MCLA 764.16; MSA 28.875.
A police officer cannot arrest a person for the commission of a misdemeanor outside his presence without a warrant. Because there was no warrant issued prior to the arrest of this defendant, his arrest was invalid. Accordingly the search of this defendant cannot be sustained as being made pursuant to a valid arrest and the first exception has no application.
MCLA 764.15; MSA 28.874.
Likewise we conclude that the third exception does not apply for there is no allegation that the lighter was in plain view. The statements of the prosecutor and the testimony of the police officers inescapably lead to the conclusion that the lighter was produced only as the result of a search. We conclude therefore that the lighter was seized as the result of an unlawful arrest, and therefore should have been held inadmissible.
The next question presented is whether evidence of the showup identification of defendant was inadmissible as fruit of the poisonous tree. It has long been held that an initial taint of an identification procedure will affect subsequent proceedings linked to the tainted activity. In this case, the lighter provided the only link between defendant and the robber of Jessie Tate. There was no separate, independent basis connecting the two.
Nardone v United States, 308 U.S. 338; 60 S Ct 266; 84 L Ed 307 (1939).
Wong Sun v United States, 371 U.S. 471; 83 S Ct 407; 9 L Ed 2d 441 (1963).
The showup at which defendant was identified by Jessie Tate resulted directly from the discovery of the lighter. Springing as it does from an impermissible search, such evidence is inadmissible.
Davis v Mississippi, 394 U.S. 721; 89 S Ct 1394; 22 L Ed 2d 676 (1969).
Finally, while it is generally true in Michigan that a motion to suppress evidence must be made prior to trial, nevertheless the trial judge does have the discretion to entertain such a motion at trial. Having done so here, the question is properly before us.
People v Ferguson, 376 Mich. 90 (1965).
Reversed and remanded.
T.M. KAVANAGH, C.J., and ADAMS, J., concurred with T.G. KAVANAGH, J.