(concurring in part; dissenting in part). I concur in the view that, under People v Carter, 395 Mich 434; 236 NW2d 500 (1975), this case should be remanded to the trial court for entry of a judgment of conviction of second-degree murder and for resentencing accordingly, with the option in the prosecutor, if the ends of justice would be better served and upon notification of the trial court before resentencing, to have the judgment and conviction vacated and defendant retried for first-degree murder. (See the opinion of Levin, J., footnote 2.) I concur that the search of the bedroom and the seizure of the gun were not violative of the law.
Although I find Justice Levin’s analysis of the present law of search and seizure both complete and accurate, my analysis of the facts is different from his and closer to that of Justice Coleman.
*16Justice Levin states (at page 24 of his opinion) that:
"While warrantless 'protective* searches may be justified when 'reasonably * * * necessary to prevent the dangers that [a] suspect at large in the house may resist or escape’, Warden, Maryland Penitentiary v Hayden, 387 US 294, 299; 87 S Ct 1642; 18 L Ed 2d 782 (1967), once all persons occupying the residence are under supervision and control and there is no reason to believe that anyone else is present, the rationale for a 'protective’ search no longer obtains and a further search may not be conducted.” (Emphasis added.)
As I understand the record, "all persons occupying the residence” were not "under supervision and control” when Sergeant Ewald found the gun, and he had reason to so believe. Sergeant Ewald testified that on entering the apartment "I set Mr. Crawl down and one of the officers stayed with him and we looked around the rest of the apartment to see if there [were] any other people there”. He testified that when he entered "[t]hey were milling all over the place and the officers were trying to get them to sit down and stand still”. Officer Kelly corroborated this, saying on admittance "people started scurrying all over the apartment * * * they were scurrying in the bedrooms, kitchen and et cetera, and then Sergeant Ewald returned a minute or two after we had entered the apartment with * * * Claude Crawl in custody.”1
*17In short, under these circumstances of "milling all over the place” and the close proximity of the rooms, especially at night in search of murderers and in a building where "they have had trouble * * * shootings, that sort of thing”, I find that a “protective” search was justified and reasonably necessary for self-protection and the safety of the other officers.
All other issues raised on appeal are without merit.
Conviction of first-degree murder reversed with remand for entry of a judgment of conviction of second-degree murder, reserving the option in the prosecutor to have the judgment and conviction vacated and to re-try defendant for first-degree murder.
Blair Moody, Jr., J., concurred with Williams, J. Levin, J.Claude Crawl was convicted of first-degree murder1 for the killing of a bartender during a robbery of a Detroit bar. The Court of Appeals affirmed. 47 Mich App 749; 209 NW2d 809 (1973).
We conclude that there was error in refusing to instruct on second-degree murder and in allowing introduction of evidence obtained during an impermissible search and seizure.
If the only error was a failure to instruct on second-degree murder, Crawl’s conviction could be affirmed as second-degree murder with remand for resentencing unless the prosecutor opts for a new trial on first-degree murder. Since there is other error which affects the validity of a conviction of *18second-degree murder, Crawl is entitled to a new trial.
Evidence seized from a barber bag in an apartment was introduced at trial over objection. Assuming it was lawful, following Crawl’s arrest outside the apartment, to conduct a "protective” search of the apartment, the warrantless search of the barber bag discovered in that search and the seizure of its contents were not within any of the narrowly circumscribed exceptions to the warrant requirement of Const 1963, art 1, § 11 and the Fourth Amendment. The arresting officer had determined that no one was in the bedroom who might destroy evidence or use a weapon that might be contained in the bag. The evidence seized (a revolver and shells) was not in plain view as the officer searched for a suspect in the bedroom. There were no circumstances, exigent or otherwise, justifying the warrantless search of the bag and the seizure of its contents.
I
In People v Carter, 395 Mich 434, 437; 236 NW2d 500 (1975), this Court held "that there are lesser included offenses to first-degree felony-murder. Second-degree murder is always a lesser included offense of first-degree murder”. In the companion case of People v Jenkins, 395 Mich 440, 442-443; 236 NW2d 503 (1975), this Court declared that: "in every trial for first-degree murder, including felony murder, the trial court is required to instruct the jury sua sponte, and even over objection, on the lesser included offense of second-degree murder” but added that "[tjhis decision shall apply to this case and to all cases tried after January 1, 1976”.
In a number of subsequent decisions, this Court, *19pursuant to Carter, modified pre-Carter, pre-Jenkins convictions of first-degree felony-murder, where the issue was preserved at the trial level by objection or request to charge on second-degree murder, by reducing the degree of conviction from first- to second-degree murder and remanding for resentencing with an option in the prosecuting attorney, if he is "persuaded that the ends of justice would better be served, upon notification to the trial court before resentencing”, to have the judgment and conviction vacated and a new trial for first-degree murder.2
In this case, the judge refused defense counsel’s "request that your Honor charge second-degree murder”. The judge’s ruling was erroneous. People v Carter, supra.
II
Two men3 robbed a Detroit bar at approximately 8:30 p.m. on May 11, 1971. The bartender was fatally shot when he offered resistance. Howard Wilson, one of the robbers, was wounded in the shootout and taken to a hospital. He informed the police, about 45 minutes after the robbery, that Crawl and another man participated in the robbery and that Crawl could be found at his cousin’s apartment.
The police arrived at the apartment building shortly after midnight. Officer Edward Ewald re*20mained outside the building while Officer Larry Kelly and two or three other officers entered the building and proceeded to the apartment. Ewald, standing outside, saw Crawl flee through a window and arrested him after he descended.
Ewald took Crawl into the building and up to the apartment, assertedly because Ewald was still looking for a third suspect; according to Ewald, "[i]t was an assumption that he could be there, too”.
As Ewald was arresting Crawl, Kelly and the other officers went to the apartment, "knocked on the door and we were admitted”. The two women and one man who were present "started running around the apartment at that time”.
When Ewald and Crawl entered the apartment, the three other occupants were still "milling all over the place and the officers were trying to get them to sit down and stand still”, but all three were "[i]n the living room at the time”. Crawl was handcuffed and turned over to another officer. Ewald entered a bedroom located about three steps from the living room.
Conceding that Crawl and the three other persons were in the living room when Ewald entered the bedroom, the people argue that Ewald was justified in entering the bedroom because Wilson had told the officers that he and two other persons had been involved in the robbery and a search was necessary to determine whether the third robber was in the apartment.
Ewald testified on direct examination that he walked into the bedroom and found a barber bag or small brief case under the bed; on cross-examination he testified that the bag was on the bed. Ewald opened the bag and found and seized evidence, including a revolver and spent shells, tend*21ing to connect Crawl with the robbery.4 Crawl and the three other persons, who were arrested on narcotics charges, were then taken to police headquarters for questioning.
We would hold that Ewald was not justified in searching the barber bag and that the evidence seized was inadmissible.
"The primacy of the warrant requirement is well established.” People v Tyler, 399 Mich 564, 571; 250 NW2d 467 (1977); United States v Chadwick, 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977).5 [T]he most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ The exceptions are 'jealously and carefully drawn.’ ” Coolidge v New Hampshire, 403 US 443, 454-455; 91 S Ct 2022; 29 L Ed 2d 564 (1971). Similarly, see People v Reed, 393 Mich 342, 362; 224 NW2d 867 (1975).
None of the recognized exceptions to the warrant requirement justified the search of the barber bag._
*22Although a warrantless search may be conducted incident to a lawful arrest, an arrest made outside the arrestee’s residence does not justify a subsequent search of the residence. Vale v Louisiana, 399 US 30; 90 S Ct 1969; 26 L Ed 2d 409 (1970).6 The search of the bag was not an incident of Crawl’s arrest.
Nor was the search an incident of the arrest of the other persons in the apartment. At the time of their arrest, no arrestee was in the bedroom and, therefore, the search was not in "the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.” "The search here went far beyond the petitioner’s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area.” Chimel v California, 395 US 752, 763, 768; 89 S Ct 2034; 23 L Ed 2d 685 (1969).
An arrest in a residence does not justify a general search of the residence. There is no justification "for routinely searching any room other than that in which an arrest occurs — or, for that *23matter, for searching through all the desk drawers or other closed or concealed areas in the room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.” Chimel, supra, p 763.
We acknowledge that if the police officers had reason to believe that the other robber was in the apartment and might escape, endanger the officers or destroy evidence, they would have been justified in entering the bedroom to avoid those dangers.7 Assuming then that Officer Ewald was justified in entering the bedroom,8 once he determined that no one was in the bedroom9 there was no justification *24for opening the bag. All four occupants (Crawl and the other three persons) were in the living room; there was no danger that anyone in the apartment could grab the bag and destroy it or any evidence in it or make use of any weapon contained in the bag. When the officers left the apartment, all four occupants were taken to police headquarters.
While warrantless "protective” searches may be justified when "reasonably * * * necessary to prevent the dangers that [a] suspect at large in the house may resist or escape”, Warden, Maryland Penitentiary v Hayden, 387 US 294, 299; 87 S Ct 1642; 18 L Ed 2d 782 (1967), once all persons occupying the residence are under supervision and control and there is no reason to believe that anyone else is present, the rationale for a "protec*25tive” search10 no longer obtains and a further search may not be conducted.
The warrantless search of the bag was not permitted under the "plain view” doctrine, whether the bag was under or on the bed. This doctrine permits warrantless searches and seizures where law enforcement officers come upon contraband, criminal activity or criminal evidence11 which is in "plain view” of officers who are where they have a right to be when they see the evidence. Stanley v Georgia, 394 US 557; 89 S Ct 1243; 22 L Ed 2d 542 (1969) (Stewart, J.).12 A search and seizure are justified "only where it is immediately apparent to the police that they have evidence before them; the 'plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges”. (Emphasis supplied.) Coolidge v New Hampshire, supra, p 466. The doctrine "will not justify seizure of the object where the incriminating nature of the object is not apparent from the 'plain view’ of the object.”13 Exploratory and gen*26eral searches to find evidence of crime are unconstitutional. United States v Lefkowitz, 285 US 452, 466-467; 52 S Ct 420; 76 L Ed 877 (1932)14 To fall within the plain view doctrine, the discovery of evidence "must be inadvertent.” Coolidge v New Hampshire, supra, p 469.
The contents of the barber bag, under or on the bed, were not in "plain view” of Officer Ewald when he surveyed the bedroom to determine whether the other robber was present; there was nothing "inadvertent” about his opening the bag and discovering and seizing the contents.15
*27In United States v Chadwick, supra, p 15, the United States Supreme Court, in holding that a double-locked foot locker which had been loaded in the trunk of an automobile could not be seized without a warrant under either the "automobile exception”16 or as a search incident to an arrest, declared: "Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest”.17
On analogous facts, New York’s intermediate appellate court suppressed evidence obtained upon a search of a dresser drawer and a suitcase in a closet. The defendant had been arrested on the *28street for possession of heroin. He told the arresting officers that the "people you want are up in my apartment”. The Court held that, although the warrantless entry of the apartment and seizure of a shotgun in plain view in a room full of people were lawful, the search of the dresser drawer and suitcase was unlawful:
"The thorough search of the room, and the seizure therein of a pistol from a dresser drawer and of drugs and drug paraphernalia from a suitcase in a closet, after all persons had been cleared from the room, was impermissible (cf. People v Floyd, 26 NY2d 558, 563; 312 NYS2d 193, 195-196; 260 NE2d 815, 817 [1970]). There was no reason to fear an assault by a person with a weapon within reach, i.e., in the dresser, since there was no one in the room. Even though the officer could legally look into the closet to assure himself that no one who might harm him was hiding there, he had no right to open and examine the suitcase he found therein. Any weapons which might have been contained in the suitcase were certainly out of reach of the persons in the next room.” People v Thompson, 50 App Div 2d 874, 875; 377 NYS2d 149, 151-152 (1975).
The warrant requirement embodies the fundamental precept that a search must be preceded by a neutral and objective determination of probable cause and of the proper scope of the search, "[Bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment violations 'only in the discretion of the police.’ ” Katz v United States, 389 US 347, 358-359; 88 S Ct 507; 19 L Ed 2d 576 (1967) (emphasis by the Court).
The exceptions to the warrant requirement are narrowly circumscribed and are available only where exigent circumstances (e.g., the need to protect arresting officers, the likelihood of destruc*29tion of evidence or of escape) require immediate action, precluding a neutral determination of probable cause or of the scope of the search; "[t]here being no exigency, it was unreasonable for the Government to conduct this search without the safeguards a judicial warrant provides”. United States v Chadwick, supra, p 11.
Having determined that no one was in the the bedroom who might destroy evidence or endanger the safety of the officers, the officers had no justification for opening the bag and seizing its contents. If upon sight of the bag there was reason to believe it contained evidence, the officers, after taking Crawl and the others into custody, should have sought a warrant to conduct a search. They could have done so without fear for their safety, or that anyone in the apartment would destroy evidence.
"We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. * * * And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home.’ ” McDonald v United States, 335 US 451, 455-456; 69 S Ct 191; 93 L Ed 153 (1948).18
*30The evidence seized was inadmissible. The error was not harmless.19
Ill
While Crawl sought, before and at the trial, to suppress the evidence found in the barber bag, his assigned appellate counsel did not brief the search and seizure question in the Court of Appeals. Crawl’s application for leave to appeal to this Court raised this question but the people’s answer did not respond on search and seizure and did not direct our attention to the failure of Crawl’s appellate counsel to raise the question in the Court of Appeals.
Ordinarily we will not consider an issue that has not been preserved at the trial level and presented to the Court of Appeals.
Requiring preservation of error at the trial level *31provides the trial judge an opportunity to rule correctly and to avoid unnecessary retrials, and also provides a record for appellate review. In this case, the search and seizure issue was preserved before and at the trial, an evidentiary record was developed and the trial court had an opportunity to suppress the evidence. The need for a new trial is not attributable to Crawl’s failure to raise the issue, but, rather, to the people’s proffer of inadmissible evidence and incorrect rulings by the trial court.
The rule requiring that appellate issues first be presented to the Court of Appeals seeks to lighten this Court’s burden of decision by disposing of issues at the intermediate appellate level and by providing this Court with the benefit of the analysis and judgment of the Court of Appeals.
The failure of Crawl’s appellate counsel to raise the search and seizure issue on appeal was a serious mistake. Appellate courts have considered claims based on the introduction of illegally seized evidence even where the issue was not preserved at the trial level where it appears there may be a different result at a new trial at which the evidence is not introduced.20
*32For the same reasons that the failure of the trial judge to suppress this evidence was not harmless error,21 it cannot be said that a new trial should not be granted because Crawl would inevitably be convicted of first-degree murder at a trial in which the evidence is suppressed.22
It would be disproportionate to regard the failure to raise this issue in the Court of Appeals as a waiver, and not to treat as a waiver of that failure the prosecutor’s failure to call our attention to it. The . rule requiring presentation of appellate issues first to the Court of Appeals is of no greater dignity than the constitutional prohibition of unreasonable searches and seizures. If an accused person’s right to protection against impermissible searches and seizures can be waived by the carelessness or ineptitude of counsel, then, by like principle, the rule requiring that appellate issues be presented first to the Court of Appeals can be waived by the prosecutor’s failure timely to call our attention to noncompliance with this rule.
Compliance with the rule requiring presentation of appellate issues first to the Court of Appeals is of great importance to this Court. Accordingly, we could remand the cause to the Court of Appeals for consideration of the search and seizure issue. Under the circumstances that we granted leave to appeal on all issues raised in the application for leave to appeal and, accordingly, should consider such issues, and that the search and seizure issue has been fully briefed, argued and considered at conference, we have chosen to consider and decide that pervasive issue.
*33IV
Crawl also contends it was error to permit the prosecutor to show that Howard Wilson, an important witness for the prosecution, had admitted his participation in the robbery-killing by pleading guilty to murdering the bartender, and had been sentenced.23
As a long-established rule of the common law, an accomplice’s plea of guilty24 or conviction following a trial25 is not admissible against another person.26
*34On cross-examination, Wilson was asked about his statements to the police shortly after the robbery; the purport of the questioning was that Wilson made the statements in the hope of obtaining leniency. On redirect, Wilson was asked whether he had pled guilty and been sentenced; the people contend that these questions were responsive to the cross-examination and were asked to rebut the intimation that Wilson’s testimony was motivated by self-interest.
While the cross-examination was limited to the time sequence shortly after the robbery, the tendency of the questions was not simply that Wilson had a personal motive for assisting the police but also that he had a personal motive for testifying against Crawl.
In these circumstances, the prosecutor was entitled to attempt to rebut the implication that Wilson’s testimony was motivated by self-interest with evidence showing the nature of the concessions made to him.
Such disclosure should, however, be full and complete to avoid misleading the jury.27 The disclosure here was far from adequate. The complete redirect examination was:
”Q. You have pled guilty to this matter already?
"A. Yes.
"Q. You are under sentence?
"A. Yes.”
While Wilson had pled guilty "in this matter” and had been sentenced, he was allowed to plead guilty to a less serious offense than Crawl was then on trial for. Wilson had received a relatively light sentence in comparison to the sentence which *35Crawl faced on conviction of first-degree murder. Wilson, who admitted his participation in the robbery-killing, and, accordingly, faced conviction of first-degree murder and a mandatory sentence of life in prison without possibility of parole, was permitted to plead guilty to second-degree murder and was sentenced to serve a term of 5 to 15 years, which made him eligible for parole in approximately 3-1/2 years. Wilson was paroled in 1974, about 3 years after the crime was committed.
The implication of the redirect questioning, that Wilson had not benefited and would not benefit from his testimony and had no personal motivation to testify falsely, was misleading.
While Wilson had been sentenced, he was still subject to the jurisdiction of the parole board and whether he served a minimum or greater sentence depended in part on whether the authorities were of the opinion that he had been "rehabilitated”. A person in his position might reasonably conclude that his chances of an early parole were greater if he continued to cooperate with the authorities by testifying against Crawl.
While the prosecutor was entitled to inform the jury of Wilson’s true status, the jury should have been fully and accurately informed28 of all the pertinent facts and circumstances so that it could properly assess whether his testimony may have been motivated by self-interest.
V
Crawl also contends that a confession introduced at the trial was involuntary because it was induced by a beating, promises of leniency and threats, including a threat to use ballistics tests on *36the revolver seized from the barber bag to implicate him in the robbery-killing.
Following a Walker hearing held after the trial had begun, and after it had been decided that the evidence obtained from the barber bag had not been unlawfully seized, the judge ruled that the confession was voluntary.
Crawl’s testimony that the police threatened to use the gun to tie him to the robbery was uncontradicted. If the confession was obtained as a fruit of the unlawful search and seizure, it must be suppressed.29
We would (see part II, supra) reverse the trial court on the search and seizure issue and remand for a new trial. Before such a new trial, the question whether the confession was a fruit of the unlawfully seized evidence should be reconsidered at an evidentiary hearing.
The other issues are without merit or not likely to arise at a new trial.
Kavanagh, C. J., and Fitzgerald, J., concurred with Levin, J.Officer Kelly later testified "Well, we had everybody calmed down a gun was found by Sergeant Ewald in the bedroom where the people had ran * * From this testimony, it is difficult to ascertain the exact sequence of events, but a complete reading of the testimony leads to the conclusion that the nature of the situation as a whole, in light of the proximity of the rooms, was one of confusion and danger at the time Sergeant Ewald left in search and at the time of locating the gun.
MCLA 750.316; MSA 28.548.
People v Dancer, 396 Mich 802; 238 NW2d 29 (1976); People v Livingston, 396 Mich 818; 238 NW2d 360 (1976); People v Bills, 396 Mich 819; 238 NW2d 803 (1976); People v Dates, 396 Mich 820; 238 NW2d 360 (1976); People v Archie Smith, 396 Mich 825; 238 NW2d 536 (1976); People v Aaron, 396 Mich 843; 239 NW2d 602 (1976); People v Watson, 396 Mich 870 (1976); People v Delvin Jones, 397 Mich 871 (1976); cf. People v Herbert Smith, 396 Mich 362; 240 NW2d 245 (1976).
A third man, never apprehended, allegedly waited in a getaway car.
The bag contained barber tools, a .38-caliber revolver, two live shells, four spent shells and a holster.
"The judicial warrant has a significant role to play in that it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer 'engaged in the often competitive enterprise of ferreting out crime.’ Johnson v United States, 333 US 10, 14 [68 S Ct 367; 92 L Ed 436] (1948). Once a lawful search has begun, it is also far more likely that it will not exceed proper bounds when it is done pursuant to a judicial authorization 'particularly describing the place to be searched and the persons or things to be seized.’ Further, a warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search. Camara v Municipal Court, 387 US 523, 532 [87 S Ct 1727; 18 L Ed 2d 930] (1967).” United States v Chadwick, 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977).
The Court said:
“A search may be incident to an arrest ' "only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.” ’ Shipley v California, 395 US 818, 819 [89 S Ct 2053; 23 L Ed 2d 732 (1969)]; Stoner v California, 376 US 483, 486 [84 S Ct 889; 11 L Ed 2d 856 (1964)]. If a search of a house is to be upheld as incident to an arrest, that arrest must take place inside the house, cf. Agnello v United States, 269 US 20, 32 [46 S Ct 4; 70 L Ed 145; 51 ALR 409 (1925)], not somewhere outside — whether two blocks away, James v Louisiana, 382 US 36 [86 S Ct 151; 15 L Ed 2d 30 (1965)], twenty feet away, Shipley v California, supra, or on the sidewalk near the front steps. 'Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant.’ Agnello v United States, supra, at 33. That basic rule 'has never been questioned in this Court.’ Stoner v California, supra, at 487, fn 5.” (Emphasis by the Court.) Vale v Louisiana, 399 US 30, 33-34; 90 S Ct 1969; 26 L Ed 2d 409 (1970).
See Warden v Hayden, 387 US 294, 299; 87 S Ct 1642; 18 L Ed 2d 782 (1967); People v Block, 6 Cal 3d 239; 103 Cal Rptr 281; 499 P2d 961 (1971); United States v Broomfield, 336 F Supp 179 (ED Mich, 1972). Compare People v Olajos, 397 Mich 629; 246 NW2d 828 (1976).
In response to the question whether he had "information that the third man might be in the apartment”, Ewald said, "[i]t was an assumption that he could be there too”. It has been said that a protective search may not be conducted unless there is reason to believe that someone else is present. United States v Gamble, 473 F2d 1274 (CA 7, 1973); United States v Carter, 173 US App DC 54, 64-65; 522 F2d 666, 676-677 (1975); Enzensperger v Solomon, 16 Cr L Rep 4111 (CA 9, July 29, 1974, Nos 73-2407, 73-2383), not officially reported.
While my colleague states that "three other persons, one of whom could have been the third participant in the robbery and murder, were milling or running around the small apartment,” elsewhere it is conceded that they "were in the living room. They were milling or running around.” (Emphasis supplied.) The people conceded that Crawl and the three other occupants of the apartment were in the living room when Officer Ewald entered the bedroom. The people did not prove, and indeed, do not claim that they proved that any of the occupants of the apartment were milling or running around except in the living room. In contrast with Warden v Hayden, supra, p 299, when Ewald entered the bedroom no one was "at large” in the apartment.
My colleague states "[t]he situation was not under control. The police had every reason to believe that their lives were in danger”, and that the limits on the scope of warrantless searches imposed by Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969), and United States v Chadwick, supra, "do not come into play until arrests have been made and the police are in control of the situation”, and that those cases do not involve "uncontrolled and potentially life *24endangering situations like the situation in the case at bar”. Crawl, however, had been arrested and was in handcuffs when Ewald entered the bedroom. In addition to Ewald, there were at least three other police officers in the apartment, Kelly and two or three uniformed Highland Park policemen. It is idle to suggest that Kelly and the two or three other officers were not in “control” and did not so dominate the situation that none of the occupants could have entered the bedroom against the officers’ will.
Even if the other man "could have been the third robber”, he was in the living room, together with the two women and Crawl, and not within reach of the barber bag located in the bedroom. When Ewald determined that no one was in the bedroom, there was no justification for a warrantless search of furnishings or other belongings in the room.
The people had the burden of proving exigent circumstances, that in fact the "situation was not under control” and the officers had "reason to believe that their lives were in danger.” The officers’ testimony tends to show, rather, that when Ewald entered the bedroom they were in control and none of the occupants of the apartment represented any danger to them. There is no evidentiary support for a finding that the police were not in control.
The argument that the need to collect evidence probative of guilt ("bringing a dangerous felon to the bar of justice”) is a factor in determining whether there is justification for a warrantless search is completely at odds with the history of adjudication under the Fourth Amendment and the concept that there are only " 'a few specifically established and well-delineated exceptions’ * * * 'jealously and carefully drawn’ ” to the warrant requirement. Coolidge v New Hampshire, 403 US 443, 453-455; 91 S Ct 2022; 29 L Ed 2d 564 (1971).
See cases cited in fn 8, supra.
See Warden v Hayden, supra, pp 309-310, abolishing, for purposes of the probable cause requirement, the distinction between "mere evidence” (which could not be seized) and fruits of crime and contraband (which could be seized).
Mr. Justice Stewart, joined by Justices Brennan and White, concurred on Fourth Amendment grounds in the suppression of films seized in a private residence. The majority held unconstitutional a state statute making private possession of obscene material a crime.
Anno: Search and Seizure: Observation of Objects in "Plain View”, 29 L Ed 2d 1067.
Evidence discovered in the course of lawful "protective” searches has been held admissible where the evidence itself was visible as the police officers searched for suspects in hiding. See People v Block, supra (plastic bag containing substance appearing to be marijuana on table and in open jewelry box in bedroom lawfully entered); United States v Broomfield, supra (guns and drugs visible in walk-in closet and on dresser in room officer had lawfully entered); United States v Looney, 481 F2d 31, 32-33 (CA 5, 1973) (machine gun on floor under bed); United States v Briddle, 436 F2d 4, 8 (CA 8, 1970) (shotgun on floor in bedroom).
The Court held that a search of the contents of a cabinet, some desks and wastebaskets was too extensive to be justified as incident to a lawful arrest, even though the furniture and wastebaskets were in "plain view” at the time of the arrest.
The people do not really contend that the revolver was in plain view. Rather, they assert that "[t]he case was reasonably expected to contain a revolver”, i.e., there was probable cause. The issue, however; is not whether there was probable cause but whether the police were required to submit the evidence of probable cause to a magistrate for his independent determination:
"It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial oificer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. Searches conducted without warrants have been held unlawful 'notwithstanding facts unquestionably showing probable cause,’ Agnello v United States, 269 US 20, 30 [46 S Ct 4; 70 L Ed 145; 51 ALR 409 (1925)], for the Constitution requires 'that the deliberate, impartial judgment of a judicial officer * * * be interposed between the citizen and the police * * * .’ Wong Sun v United States, 371 US 471, 481-482 [83 S Ct 407; 9 L Ed 2d 441 (1963)]. Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,’ United States v Jeffers, 342 US 48, 51 [72 S Ct 93; 96 L Ed 59 (1951)], and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established *27and well-delineated exceptions.” Katz v United States, 389 US 347, 356-357; 88 S Ct 507; 19 L Ed 2d 576 (1967).
The Court explained:
"It is true that, like the footlocker in issue here, automobiles are 'effects’ under the Fourth Amendment, and searches and seizures of automobiles are therefore subject to the constitutional standard of reasonableness. But this Court has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts. Carroll v United States, 267 US 132 [45 S Ct 280; 69 L Ed 543; 39 ALR 790] (1925) [first recognizing the 'automobile exception’ to the warrant requirement]; Preston v United States [376 US 364], at 366-367 [84 S Ct 881; 11 L Ed 2d 777] (1964); Chambers v Maroney, 399 US 42 [90 S Ct 1975; 26 L Ed 2d 419] (1970). See also South Dakota v Opperman, 428 US 364, 367 [96 S Ct 3092; 49 L Ed 2d 1000] (1976).” United States v Chadwick, supra, p 12.
The meaning of the Carroll rule and the scope of the so-called automobile exception to the warrant requirement have continued to divide the Court. See United States v Chadwick, supra; Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971); Cardwell v Lewis, 417 US 583; 94 S Ct 2464; 41 L Ed 2d 325 (1974).
Similarly, see Johnson v United States, 333 US 10, 13-14; 68 S Ct 367; 92 L Ed 436 (1948); Cooldige v New Hampshire, supra, pp 449-450; Chimel v California, supra, p 761; Katz v United States, supra.
"The officers could have amply insured their safety by removing the defendant from the premises immediately. Therefore, the intrusion into the upstairs rooms which brought the police into view of the [seized evidence] was not supported by any of the recognized exceptions to the warrant requirement.” State v Ranker, 343 So 2d 189, 195 (La, 1977).
The testimony of accomplice Wilson was impeached by his self-interest; facing a charge of first-degree murder, he was permitted to plead guilty to second-degree murder and had been sentenced to serve 5 to 15 years; also pertinent is Wilson’s post-conviction recanting affidavit.
Crawl’s confession may have been a fruit of the unlawful search and seizure. See part V, infra.
Pour persons in the bar testified at the trial: one could not identify Crawl; another said "he was not positive;” the third identified Crawl at trial but shortly after the incident had said he did not know if he could identify either robber; the fourth identification witness was the only person whose testimony unequivocally identified Crawl. Identification testimony is often unreliable. See People v Anderson, 389 Mich 155; 172-180, 205 NW2d 461 (1973). Unless there are special reasons to credit an identification (i.e., long acquaintance between the witness and the defendant), such evidence does not point unerringly to the defendant and cannot make other error harmless.
The gun, illegally seized following the illegal search of the barber bag, was compelling evidence of Crawl’s guilt; it cannot be said that without such evidence Crawl would have, nevertheless, inevitably been convicted of first-degree murder: A police firearms examiner testified that one bullet recovered from the scene of the robbery "was positively fired” by the gun, and that two other bullets bore "a very strong similarity.” Three of the four eyewitnesses said that the gun looked like the one used by one of the robbers.
See Chambers v Maroney, 399 US 42, 54, fn 11; 90 S Ct 1975; 26 L Ed 2d 419 (1970); Kaufman v United States, 394 US 217, 220, fn 3; 89 S Ct 1068; 22 L Ed 2d 227 (1969) (issue preserved at the trial level but not preserved on appeal to the intermediate appellate court); People v Moore, 391 Mich 426; 216 NW2d 770 (1974); People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969); People v Steeneck, 247 Mich 583, 586; 226 NW 231 (1929); People v Johnson, 38 Ill 2d 399, 402-403; 231 NE2d 447, 449 (1967); People v Ibarra, 60 Cal 2d 460; 34 Cal Rptr 863; 386 P2d 487 (1963); State v Thomas, — W Va —; 203 SE2d 445 (1974).
Other decisions of this Court recognizing that error not preserved at the trial level may, nevertheless, be considered on appeal include People v Crittle, 390 Mich 367, 370; 212 NW2d 196 (1973); People v Kelsey, 303 Mich 715, 719; 7 NW2d 120 (1942); People v Holmes, 292 Mich 212, 215; 290 NW 384 (1940); People v Dorrikas, 354 Mich 303, 326; 92 NW2d 305 (1958); and People v Smith, 260 Mich 486, 488-489; 245 NW 502 (1932). See, also, Josephson, 1971 Annual Survey of Law, Civil and Criminal Evidence, 18 Wayne L Rev 101, 168 (1971).
See fn 19.
See People v Garcia, 398 Mich 250, 266; 247 NW2d 547 (1976); People v Degraffenreid, supra, pp 716, 718.
Although this claim of error was not preserved at trial, we advert to it because the issue is likely to arise on retrial and appears to be of recurring importance.
Leech v People, 112 Colo 120; 146 P2d 346 (1944); Babb v United States, 218 F2d 538, 541 (CA 5, 1955); Pryor v State, 245 P 669, 672 (Okla Crim, 1926); Moore v State, 186 So 2d 56 (Fla App, 1966); Lane v State, 40 Ala App 174; 109 So 2d 758 (1959); State v Jackson, 270 NC 773; 155 SE2d 236 (1967); Jackson v State, 215 Ark 420; 220 SW2d 800 (1949); State v Gargano, 99 Conn 103; 121 A 657 (1923); State v Pikul, 150 Conn 195; 187 A2d 442 (1962); People v Zachery, 31 App Div 2d 732; 297 NYS2d 183 (1968); Ward v Commonwealth, 205 Va 564; 138 SE2d 293 (1964).
Leroy v Government of Canal Zone, 81 F2d 914 (CA 5, 1936); State v Jackson, supra; State v Frese, 256 Iowa 289; 127 NW2d 83 (1964); Gray v State, 221 Md 286; 157 A2d 261 (1960); People v Eldridge, 17 Mich App 306, 313; 169 NW2d 497 (1969). See, generally, 22A CJS, Criminal Law, § 784, p 1190; Anno: Prejudicial effect of prosecuting attorney’s argument of disclosure during trial that am other defendant has been convicted or has pleaded guilty, 48 ALR2d 1016,1017:
"Where two or more persons are jointly indicted for the same criminal offense which is in its nature several, or are separately indicted for such offense or for separate offenses growing out of the same circumstances, and are tried separately, the fact that one defendant has pleaded guilty or has been convicted is, as a general rule, inadmissible as against the other, since competent and satisfactory evidence against one person charged with an offense is not necessarily so against another person charged with the same offense, and since each person charged with the commission of an offense must be tried upon evidence legally tending to show his guilt or innocence.”
Rule 803(22) of the Federal Rules of Evidence, and the corresponding proposed Michigan rule, provide that a guilty plea of a witness other than the accused is inadmissible except for impeachment purposes.
See People v Atkins, 397 Mich 163; 243 NW2d 292 (1976).
See Hurd v People, 25 Mich 405, 416 (1872).
Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963).