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02/11/76 PEOPLE v. BROW

February 11, 1976

PEOPLE
v.
BROW



Appeal from Livingston, Bert M. Hensick, J.

McGregor, P. J., and T. M. Burns and N. J. Kaufman, JJ.

SYLLABUS BY THE COURT

1. -- Right to Preliminary Examination -- Felony -- Grand Jury Indictment.

A defendant who has been charged with a felony, but who has not been indicted by a grand jury, has the right to a preliminary examination.

2. -- Right to Preliminary Examination -- Right to Cross-Examine -- Larceny Over $100 -- Larceny Over $5 -- Information.

A defendant who was bound over for trial on a charge of larceny over $100 was effectively denied the right to a preliminary examination on that charge where (1) the defendant was originally charged with larceny from a motor vehicle of property worth more than $5, (2) the preliminary examination was based on the charge of larceny of property worth more than $5, (3) the defense conceded the stolen property was worth more than $5 and did not cross-examine on the element of value, and (4) there was a question whether the property was worth more than $100; therefore, failure of the trial court to quash the information against defendant under these circumstances was error (MCLA 750.356, 750.356a; MSA 28.588, 28.588[1]).

3. Searches and Seizures -- Search Without a Warrant -- Prosecution -- Burden of Proof.

The prosecution, to sustain the validity of a search and seizure conducted without a warrant, has the burden of proving that the police acted reasonably, possessed probable cause for the search, and performed the search pursuant to an exigent circumstance, within a specified exception to the warrant requirement.

4. Searches and Seizures -- Plain View Exception -- Warrant Requirement.

The plain view exception to the requirement for a warrant for a search and seizure applies when a police officer sees evidence which is clearly contraband from a place where he has a right to be.

5. Searches and Seizures -- Search Without a Warrant -- Plain View Exception -- Looking In Window.

A seizure of a stolen tool box located inside a house was valid, although the police officer did not have a warrant, where the officer saw the tool box by looking through a window from the front porch of the house, the officer had come to the front porch as part of a legitimate police investigation, the complainant who was with the officer identified the tool box as the stolen one, and the tool box could have been removed in the time needed to obtain a warrant.

The opinion of the court was delivered by: Per Curiam

Jack R. Brow was convicted of larceny over $100. Defendant appeals.

On January 22, 1975, defendant was convicted by a Livingston County Circuit Court jury of larceny over $100, MCLA 750.356; MSA 28.588. Defendant was subsequently sentenced to a term of from three to five years in prison and now appeals of right.

In the original complaint and warrant, the defendant was charged with stealing or unlawfully removing property from an automobile, MCLA 750.356a; MSA 28.588(1). At the beginning of the preliminary examination ...


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