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Judge Elden's Search Ruling Cites Perils To Police

Judge Elden's Search Ruling Cites Perils To Police image
Parent Issue
Day
14
Month
January
Year
1972
Copyright
Copyright Protected
Rights Held By
Donated by the Ann Arbor News. © The Ann Arbor News.
OCR Text

An Ann Arbor District Court ruling, believed to be the first of its kind in Michigan, has officially recognized hazards faced by police officers today. The case involves Larry Nash, 21, of 510 S. Fourth Ave., who last July 22 became the first person to be charged with possession of marijuana under the new city ordinance which reduced that crime to a misdemeanor. Nash was arrested by City Patrolmen Paul Viergever and Dale Williams after they found a vial in his possession which contained marijuana. The officers had originally stopped Nash when they said he had neither a headlight nor a taillight on his motorcycle. When Nash was unable to produce a driver's license or proof of ownership of the vehicle, he was arrested for operating without a license and he was escorted to a patrol car for transportation to police headquarters. Before Nash was placed in the police car, he was searched and the patrolmen found a four-inch-long vial in his pocket. The officers opened the vial and found a substance believed to be marijuana. Nash was then arrested on a charge of possession of marijuana. His legal counsel has sought to have the evidence against him - the vial and its contents - suppressed on the grounds of illegal search. The defense lawyer's argument is that Nash could not constitutionally be searched because he was originally stopped only for a traffic violation and that there existed no reasonable suspicion that he was carrying a weapon. The defense cites the 1959 Gonzales case in which the illegal search and seizure issue was given its most prominent present day exposure. The Gonzales case set the legal precedent that police cannot use the "fruits of the crime" as evidence if such evidence was obtained through an illegal and unconstitutional search of the defendant's person or property. The case involved a traffic stop by police in which the subsequent search of the car produced burglar tools. Gonzales, the driver of the car, was later convicted of burglary on the basis of evidence unearthed by the search of the vehicle. But Judge S. J. Elden says there is a clear difference between the Nash and the Gonzales cases. He says the officers formally arrested Nash with the intention of detaining him and transporting him to the police station. He said the patrolmen also had reasonable cause to believe the motorcycle Nash was riding was stolen as he could not produce evidence of ownership. He said the Supreme Court decision in the Gonzales case implies that a search is warranted if there is a suspicion of another crime and the defendant is to be detained. The judge said the "alarming increase" in the number of murders and assaults made on policemen in recent years demands that officers be allowed to protect their own safety when taking persons into custody. "Rulings on search and seizure were made when attacks on policemen were more or less infrequent," Judge Elden said in commenting on his decision. "The street murder of police officers is now almost commonplace. Certainly the law should give officers at least the protection which it affords the criminal." The judge cited language used in the U.S. Supreme Court ruling in 1968 in the case of Terry versus Ohio. The high court said in that opinion: "There is an immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be reasonable to require that police officers take unnecessary risks in the performance of their duties." "American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty and thousands more are wounded. Virtually all of these deaths and many injuries are inflicted with guns and knives." Judge Elden further ruled that the vial confiscated from Nash at the time of his arrest was large enough to hold a weapon and that the policemen were justified in believing that. The judge finally ruled that the vial and its contents may be introduced as evidence and he denied the motion to suppress them.