320 N.W.2d 866 (Mich. 1982), 64416, People v. Long

Docket Nº:Docket No. 64416.
Citation:320 N.W.2d 866, 413 Mich. 461
Opinion Judge:KAVANAGH, Justice.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Kerk LONG, Defendant-Appellant.
Attorney:[413 Mich. 468] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Judy H. Hughes, Pros. Atty., Leonard J. Malinowski, Asst. Atty. Gen., Dept. of Atty. Gen., Pros. Attys. Appellate Service, Lansing, for plaintiff-appellee. Vlachos, Jerkins & Hurley by Joseph J. Jerkins, Kalamazoo, Jame...
Case Date:June 14, 1982
Court:Supreme Court of Michigan
 
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Page 866

320 N.W.2d 866 (Mich. 1982)

413 Mich. 461

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

David Kerk LONG, Defendant-Appellant.

Docket No. 64416.

Calendar No. 5.

Supreme Court of Michigan.

June 14, 1982

Argued Jan. 6, 1981.

Page 867

[413 Mich. 468] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Judy H. Hughes, Pros. Atty., Leonard J. Malinowski, Asst. Atty. Gen., Dept. of Atty. Gen., Pros. Attys. Appellate Service, Lansing, for plaintiff-appellee.

Vlachos, Jerkins & Hurley by Joseph J. Jerkins, Kalamazoo, James H. Geary, Kalamazoo, for defendant-appellant.

KAVANAGH, Justice.

The defendant, David Kerk Long, appeals his conviction of possession of marijuana. He contends that evidence of the marijuana found in the interior and trunk of the automobile he was driving should have been suppressed as the product of unconstitutional searches. We reverse.

Page 868

Shortly after midnight on August 25, 1977 while Deputies Howell and Lewis of the Barry County Sheriff's Department were on routine road patrol, they observed a car traveling past them in the opposite direction at an excessive speed. They turned their vehicle around and pursued the speeding vehicle. They saw the vehicle make a left turn, proceed down a side road, then swerve. The vehicle came to a stop with the front of the car in a shallow ditch and the back of the car on the roadway.

As the deputies approached, the defendant, the only occupant of the car, got out of the car, leaving the driver's side door open, and met the deputies at the rear of the car. Deputy Howell asked the defendant to produce his driver's license. The defendant made no response. The deputy repeated his request, and the defendant produced his license. When asked for his vehicle registration and proof of insurance, the defendant again made no [413 Mich. 469] response. When the request was repeated, the defendant began walking toward the open door. At this juncture, Deputy Howell had formed the opinion that the defendant "appeared to be under the influence of something".

The deputies followed the defendant. As they approached the open door, the deputies saw a closed folding Browning knife on the floor board of the driver's side. 1 The defendant was told to halt and put his hands on the roof of the car. He did. One deputy picked up the knife while the other deputy conducted a pat-down search of the defendant, which produced no weapons.

Deputy Howell then shined his flashlight into the front seat of defendant's car to search for other weapons and saw "something leather" under the armrest. He knelt in the vehicle, lifted the armrest and observed an open leather pouch containing a small plastic bag of what appeared to be marijuana. According to the testimony of the deputies at trial, Mr. Long was standing by the rear of the car under the control of Deputy Lewis during Deputy Howell's search.

Deputy Howell removed the pouch and showed it to Deputy Lewis. The defendant was arrested for possession of marijuana. The interior of the car was searched for additional contraband, and the glove compartment was searched for the registration certificate. Neither was found.

The deputies decided to impound the car. Deputy Howell asked the defendant if he had a trunk key. The defendant stated that he had no key. The deputy, noticing that the trunk lock had been punched out, used his pocket knife and reached in [413 Mich. 470] and unlatched the latch. Deputy Howell testified as to why he opened the trunk as follows:

"Number one, because I already found marijuana, suspected marijuana, in the interior of the car, there may have been more in the trunk. Secondly, I check them for valuables. I do."

Upon opening the trunk the deputy found two paper bags, which were split open, containing approximately 75 pounds of marijuana.

The defendant was handcuffed, placed in the police car and taken to the sheriff's department along with the towed car.

At the preliminary examination and at trial the defendant moved to suppress evidence of the marijuana obtained through the searches of the interior and trunk of the car. These motions were denied and the defendant was subsequently convicted of possession of marijuana.

On appeal, the Court of Appeals affirmed the defendant's conviction. 94 Mich.App. 338, 350, 288 N.W.2d 629 (1979). That Court held that "Deputy Howell's precautionary lifting of the front seat armrest prior to allowing defendant to re-enter his automobile was constitutionally valid as a protective search under the Terry doctrine." 2 94 Mich.App. 344, 288 N.W.2d 629.

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The Court of Appeals found "no reversible error in the trial judge's determination that the deputies' inspection of the trunk was made pursuant to a proper inventory of the type approved by Opperman 3 and its progeny." 94 Mich.App. 350, 288 N.W.2d 629.

The first issue on appeal is whether Officer [413 Mich. 471] Howell's warrantless search of the interior of the vehicle, while the defendant was standing near the rear of the car under the control of another officer, violated the constitutional proscription against unreasonable searches and seizures. 4 We hold that the search was unconstitutional and reverse. The Court of Appeals erroneously applied the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to the search of the interior of the vehicle in this case.

In Terry, the United States Supreme Court authorized a limited warrantless protective search of the person during an investigatory stop. Prior to the stop, the police officer had observed two men involved in suspicious behavior for 10 to 12 minutes. The officer suspected the two men of "casing a job, a stick-up" and considered it his duty to investigate further. 392 U.S. at 6, 88 S.Ct. at 1872.

The Court held "that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Id., at p. 27, 88 S.Ct. at p. 1883. The test set forth by the United States Supreme Court to justify the warrantless protective search "is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger". Id.

The limited authority to search was emphasized by the Court when it said "[t]he sole justification of the search * * * is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other [413 Mich. 472] hidden instruments for the assault of the police officer." Id., at p. 29, 88 S.Ct. at p. 1884.

The officer's entry into the vehicle cannot be justified under the principles set forth in Terry. Terry authorized only a limited pat-down search of a person suspected of criminal activity. That case did not authorize the search of an area. 5

At the time the search was conducted, the defendant was standing near the rear of the vehicle under the control of Deputy Lewis. Deputy Howell was positioned between the open door of the vehicle and the defendant. The deputies had conducted a pat-down search of the defendant after seeing the knife in the car and had found no weapons. 6 Any weapon which might have been hidden in the car would have been out of the reach of the defendant and thus not a danger to the deputies. 7 Therefore, the sole justification of the Terry search, protection of the police officers and others nearby, cannot justify the search in this case.

The state does not contend that the search can be justified by reference to other

Page 870

exceptions to the warrant requirement. 8 We hold, therefore, that the [413 Mich. 473] deputies' search of the vehicle was proscribed by the Fourth Amendment to the United States Constitution and art. 1, Sec. 11 of the Michigan Constitution. The evidence obtained pursuant to the unconstitutional search should have been suppressed.

There remains the question of the validity of the search of the trunk. The people seek to justify the warrantless search either as an inventory search or as a search incident to arrest.

The search of the trunk occurred subsequent to the deputies' decisions to arrest the defendant for possession of marijuana and to impound the car. The defendant's arrest was based on evidence obtained by unlawful police action. We find that the evidence of marijuana found in the trunk was the "fruit" of that illegality which should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The defendant's conviction is reversed.

KAVANAGH, WILLIAMS, FITZGERALD, RYAN and LEVIN, JJ., concur.

COLEMAN, Chief Justice (dissenting).

We respectfully dissent. The search of defendant's vehicle and the seizure of the controlled substance did not violate the constitutional prohibitions against unreasonable searches and seizures, U.S.Const., Am. IV, Const.1963, art. 1, Sec. 11.

The facts are stated in the majority opinion. The majority opinion concludes that the officer's actions in examining the interior of the vehicle constituted a warrantless search not authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d [413 Mich. 474] 889 (1968). We agree that this issue is governed by the principles recognized in Terry.

I

In Terry, the Court upheld an officer's actions in "patting down" or "frisking" a suspect's outer clothing during an investigatory stop as a reasonable protective search. The Court stated:

"Our first task is to establish at what point in this...

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