440 N.W.2d 75 (Mich.App. 1989), 101536, People v. Harmelin

Docket Nº:Docket No. 101536.
Citation:440 N.W.2d 75, 176 Mich.App. 524
Opinion Judge:PER CURIAM.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Allen HARMELIN, Defendant-Appellant.
Attorney:[176 Mich.App. 526] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., and Daniel J. Garber, Jr., Asst. Pros. Atty., for the people. Carla J. Johnson by James S. Lawrence, Detroit, for defendant-appellant.
Judge Panel:Before WAHLS, P.J., and HOOD and KAUFMAN, [*] JJ.
Case Date:June 05, 1989
Court:Court of Appeals of Michigan
 
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Page 75

440 N.W.2d 75 (Mich.App. 1989)

176 Mich.App. 524

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Ronald Allen HARMELIN, Defendant-Appellant.

Docket No. 101536.

Court of Appeals of Michigan.

June 5, 1989

April 18, 1989

Submitted April 4, 1989.

Released for Publication June 5, 1989.

Application for Leave to Appeal Dismissed as Moot April 26, 1989.

Page 76

[176 Mich.App. 526] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., and Daniel J. Garber, Jr., Asst. Pros. Atty., for the people.

Carla J. Johnson by James S. Lawrence, Detroit, for defendant-appellant.

Before WAHLS, P.J., and HOOD and KAUFMAN, [*] JJ.

PER CURIAM.

On March 9, 1989, this Court, on its own motion, vacated its judgment in this case issued on January 9, 1989, and retained the matter for reconsideration. Of concern was the effect of a constitutional provision and its case-law precedent, uncited by the parties, on the issue of the propriety of a police officer's ordering a driver out of his car after having stopped the driver for a traffic violation. Two judges of this panel concluded that the Michigan Constitution's search-and-seizure provision provided greater protection to drivers in such a situation than that available under the analogous provision of the federal constitution. Under the latter, a police officer's order to a driver to get out of his car after the car has been lawfully stopped for a traffic violation does not violate the Fourth Amendment even though the officer had no reason to suspect foul play at the time. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). The third judge of this panel, writing in dissent, concluded that the record did not support the assumption that defendant was ordered out of his car by the police and, on the contrary, suggested that defendant had voluntarily gotten out of his car after having been lawfully stopped for a traffic violation.

[176 Mich.App. 527] On reconsideration, we hold that, even if defendant in this case were ordered out of his car by the police after having been legally stopped for a traffic violation, the narcotics evidence revealed after subsequent searches could not have been suppressed from evidence under the Michigan Constitution's search-and-seizure provision because, under the circumstances in this case, that provision affords defendant with no greater protection than that provided under the analogous federal provision in the Fourth Amendment. Regarding the remaining issues raised by defendant on appeal and not addressed in the January 9, 1989, majority opinion, we adopt the reasoning and conclusions set forth in the dissenting opinion of that date.

The facts in this case were recited in our earlier opinion:

"Defendant, Ronald Allen Harmelin, was convicted after a bench trial of possession of 650 or more grams of a mixture containing cocaine, MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA

Page 77

28.424(2), and was sentenced on April 30, 1987, by the Oakland Circuit Court to a mandatory life term of imprisonment for the cocaine conviction and a mandatory two-year term of imprisonment for the felony-firearm conviction. On appeal, defendant argues that his convictions must be reversed because the evidence against him was obtained as a result of an unconstitutional seizure and pat-down search of his person and an unconstitutional search of his car, that his convictions must be reversed because he was deprived of the effective assistance of counsel, and that his sentence for the cocaine conviction must be set aside and a resentencing occur because a mandatory life sentence without the possibility of parole constitutes cruel and unusual punishment....

[176 Mich.App. 528] "The record reveals that in the early morning hours of May 12, 1986, two Oak Park police officers, Calvin Rix and Lawrence Blakeney, were patrolling in a marked police car in the area of the Embassy Motel in the City of Oak Park, and at 2:45 a.m. drove into the motel's parking lot to check for stolen vehicles. Numerous stolen vehicles had been found in this lot in the past. At this time, the officers observed defendant's car leaving the parking lot and, although they were called away on other police business at various times that morning, they saw defendant's car entering the Embassy Motel parking lot at about 4:00 a.m. and again at 5:00 a.m. In the three sightings of defendant's car, the officers noticed nothing unusual or illegal in the manner in which defendant's car was being driven.

"Shortly after 5:00 a.m., while continuing to patrol the area around the Embassy Motel, Officers Rix and Blakeney saw defendant's car make a U-turn at the intersection...

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