People v. Gaval

Cynar, P.J. On March 28, 1978, defendant was convicted of possession of burglar’s tools, MCL 750.116; MSA 28.311. He was subsequently sentenced to six years eight months to ten years imprisonment, and now appeals as of right. I Defendant was one of four occupants of a Cadillac limousine stopped by police on the evening of August 27, 1977. The vehicle had been under surveillance by a number of law enforcement agencies for several hours, during which time *710 officers observed unorthodox and suspicious movements and activities by the occupants. Items of interest retrieved from the Cadillac immediately following the stop and after the arrest of the occupants included pairs of leather gloves, dark blue nylon windbreaker jackets, ski masks, a large hammer with á short handle, and a .38-caliber revolver with the serial numbers drilled out. II Defendant first contends that the trial court never acquired jurisdiction over his person. This argument stems from the fact that defendant was brought from Federal custody in the Milan, Michigan penitentiary into state custody by means of a "writ of habeas corpus to bring up the prisoner for preliminary examination”. 1 Defendant argues that there is no specific constitutional or statutory authorization granting the circuit courts of this state the power to issue such a writ or the allied writ of habeas corpus ad prosequendum. We disagree. Const 1963, art 6, § 13, provides as follows: "The circuit court shall have original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; power to issue, hear and determine prerogative and remedial writs; supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with rules of the supreme court; and jurisdiction of other cases and matters as provided by rules of the supreme court.” *711 Prerogative writs have been defined to include writs of habeas corpus. Black’s Law Dictionary 1345, 1784 (4th ed, 1968). We therefore conclude that the circuit court was possessed with authority to issue the writ contested by defendant. Accord, People v McLemore, 95 Mich App 536; 209 NW2d 109 (1980). Defendant further argues with respect to this issue that the writ of habeas corpus ad prosequendum must be treated as a detainer lodged against defendant pursuant to the Interstate Agreement on Detainers (IAD), MCL 780.601 et seq.; MSA 4.147(1) et seq. Defendant claims that the IAD is the exclusive means by which a state may obtain the transfer for prosecution of a prisoner from another state. Necessarily, if jurisdiction over defendant’s person was acquired, it was through the IAD. We reject this contention. We concede that a writ of habeas corpus ad prosequendum issued by a Michigan court has no binding extraterritorial effect. People v McLemore, supra, 550-551. Cf., GCR 1963, 713.1(2)(a) relative to a writ of habeas corpus ad testificandum. We also note that the Court in McLemore concluded that a Federal penitentiary within this state is within the jurisdiction of the court issuing the writ. McLemore, supra, 549-551. We find it unnecessary to address the question of whether a Federal facility should be treated thusly under either the IAD or the writ in dispute. Even assuming that it should not be and that the Writ which issued here was only precatory and not compulsory in nature, Commonwealth v Florence, 387 NE2d 152, 153 (Mass App, 1979), it is nonetheless clear that Federal policy is to recognize such writs as a matter of comity. Ponzi v Fessenden, 258 US 254, 261-262, 266; 42 S Ct 309; 66 L Ed 607 (1922), 18 USC 4085(a), Com *712 monwealth v Florence, supra, 153. Federal authorities have previously honored or refused such writs and may continue to honor or refuse such writs in the future. Id., 153. Therefore, we hold that a detainer lodged pursuant to the IAD is not the exclusive means by which to effect a transfer of a prisoner from a Federal facility into state custody. Commonwealth v Fasano, 375 NE2d 361, 364 (Mass App, 1978). Contra, People v McLemore, supra, 553, People v Beamon, 83 Mich App 121, 133-134; 268 NW2d 310 (1978), lv den 403 Mich 850 (1978). We are of course mindful of the abuses the IAD was intended to overcome, most notably the avoidance of disruption in rehabilitation programs in which a prisoner is participating in a Federal facility. McLemore, supra, 544-545, 552. However, in the instant case defendant was not subjected to any unreasonable delay in being brought to trial, such that his program of rehabilitation was unduly interrupted. 2 Thus, the purposes for which the IAD was enacted were not thwarted here. We conclude that jurisdiction over defendant’s person was obtained by means of the writ of habeas corpus issued here. Accordingly, the IAD is not applicable to the case before us. 3 Ill We find the initial stop of the vehicle in which *713 defendant was a passenger to be permissible under People v Whalen, 390 Mich 672, 680-682; 213 NW2d 116 (1973). IV As to certain items found in the car in which defendant was riding and introduced into evidence at trial, we find that they were clearly within "plain view” when seized, and properly admissible under the rule in People v Whalen, supra, 682-683. With regard to the gun found in the crease of the rear seat of the car, it was properly admitted into evidence under the rationale found in People v Robertson, 81 Mich App 446, 449-450; 265 NW2d 365 (1978), People v Damaska, 404 Mich 391, 393-394; 273 NW2d 58 (1978). V We conclude that none of the errors assigned by defendant requires reversal of his conviction and affirm the same. Affirmed. Footnotes [1] Irrespective of the label affixed to the writ issued in this case, subsequent events rendered it the functional equivalent of a writ of habeas corpus ad prosequendum, and we choose to treat it as such for purposes of analysis. [2] From the time defendant was brought into state custody until trial commenced, 136 days elapsed. [3] Though we need not address defendant’s claim that his right to a speedy trial under Art IV(c) of IAD was violated because we find the IAD inapplicable, we take note of the fact that a defendant in the position of the defendant here, i.e., incarcerated in a state facility pending trial, still may raise a constitutional claim of a denial of a right to a speedy trial, as well as a claim under the 180-day rule, MOL 780.131 et seq.; MSA 28.969(1) et seq., should the facts of the case warrant such claims.