People v. Toohey, Docket No. 111717

Citation454 N.W.2d 209,183 Mich.App. 348
Decision Date09 May 1990
Docket NumberDocket No. 111717
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond Glenn TOOHEY, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., and David A. King, Asst. Pros. Atty., for the People.

Frank K. Rhodes, III, Detroit, for defendant-appellant.

Before HOOD, P.J., and MAHER and CYNAR, JJ.

MAHER, Judge.

Following a bench trial, defendant was convicted of possession of more than 50 grams but less than 225 grams of a mixture containing a controlled substance

(cocaine), with intent to deliver,

M.C.L. 11 Sec. 333.7401(2)(a)(iii); M.S.A. Sec. 14.15(7401)(2)(a)(iii), and operating a vehicle while under the influence of intoxicating liquor (OUIL), M.C.L. Sec. 257.625(1); M.S.A. Sec. 9.2325(1). Defendant received ninety days imprisonment for the OUIL conviction and the statutory minimum ten years imprisonment for the cocaine-related conviction. In this appeal as of right defendant asserts the trial court erroneously denied his motion to suppress evidence of cocaine seized during an inventory search of his vehicle. We affirm defendant's conviction for OUIL, but reverse the cocaine-related conviction.

I

The primary issue in this case concerns the admissability of evidence obtained during an inventory search of defendant's automobile. After defendant was arrested for OUIL, the police impounded his vehicle and conducted a routine inventory search of its contents. During the search, the police discovered a package of cocaine beneath the driver's seat, plus seven more bags of cocaine contained in a golf bag in the trunk. The total amount of cocaine discovered was more than 50 grams but less than 225 grams.

A suppression hearing was held on March 25, 1988. The testimony at the hearing established that on July 8, 1987, between 1:00 and 1:30 a.m., defendant and a friend, John Albert, left an Ann Arbor bar in defendant's vehicle, with defendant driving. Thomas Tanner, an Ann Arbor police officer, testified that he stopped defendant after observing the vehicle cross the center line of Packard Road. After noticing the police car, defendant pulled off onto a residential street where he legally parked his car along the curb. Tanner then performed some field sobriety tests on defendant, after which he made his decision to arrest defendant for OUIL. Albert then asked Officer Tanner if he could take custody of the car. Although Tanner did not perform any sobriety tests on Albert, Tanner would not release the car to Albert because defendant indicated Albert had also been drinking and because Tanner noticed that Albert appeared unsteady, smelled of alcohol and had slurred speech. Albert was given the option of either walking away or having a cab called. Albert then went back and conferred with defendant in the police car. After Albert told defendant that the police officer would not let him take the car, defendant asked Albert to arrange for defendant's wife or attorney to pick up the car. When Albert spoke to Officer Tanner about this request the officer told him the car was being impounded, and it was now their car. Albert eventually left on foot. Shortly thereafter, the police conducted their inventory search of the car and the cocaine was discovered.

The sole reason given at the suppression hearing for the impoundment of defendant's vehicle was that impoundment was authorized under local ordinance 10:139, which provided:

1. A police officer may immediately remove and impound a vehicle in any of the following situations.

* * * * * *

i. The driver of a vehicle is taken into custody by the Police Department and such vehicle would thereby be left unattended.

Once impounded, standard departmental policy required a police officer to thoroughly search the vehicle to determine what, if any, articles of value were present.

Following the suppression hearing, the trial court found that the search of defendant's vehicle was valid and therefore ruled the cocaine was admissible. On May 31, 1988, the day scheduled for trial, defendant waived his right to a jury trial and it was agreed that the record of the suppression hearing plus certain other stipulated facts would serve as the basis for the trial record. Thereafter, the court again upheld the validity of the inventory search and found defendant guilty of possession of cocaine with intent to deliver and OUIL.

II

Defendant argues on appeal that the trial court erred in failing to suppress the cocaine because the impoundment of his vehicle violated his Fourth Amendment rights as an unreasonable search and seizure. A trial court's ruling at a suppression hearing is reviewed under the clearly erroneous standard. The court's decision will be affirmed unless, upon a review of the record, this Court is left with a definite and firm conviction that a mistake was made. People v. Burrell, 417 Mich. 439, 448, 339 N.W.2d 403 (1983). Upon our review of the record, we agree the trial court clearly erred in denying defendant's motion to suppress the cocaine.

The Fourth Amendment to the United States Constitution, made applicable to the states by way of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., Am. IV. A warrantless search and seizure is unreasonable per se and violates the Fourth Amendment of the United States Constitution unless shown to be within one of the exceptions to the rule. People v. Reed, 393 Mich. 342, 362, 224 N.W.2d 867 (1975). The burden is always on the state to show an exception exists. Id.; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The leading case concerning the validity of inventory searches of impounded automobiles is South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). In that case, the United States Supreme Court upheld an inventory search of a lawfully impounded vehicle. The search in that case was prompted by the presence, in plain view, of a number of valuables inside the car. The Court looked at all the facts and circumstances in the case and, after noting that "police intrusions into automobiles impounded or otherwise in lawful police custody " have been consistently sustained "where the process is aimed at securing or protecting the car and its contents," id. at 373, 96 S.Ct. at 3099, determined that an inventory search performed as a caretaking function pursuant to standard police procedure did not constitute an unreasonable search and seizure under the Fourth Amendment. id. at 375-376, 96 S.Ct. at 3100 (emphasis added).

In Opperman, the vehicle had been impounded for violation of a parking ordinance and the validity of the initial impoundment was not at issue. However, Opperman did recognize the authority of the police to remove and impound vehicles in the interest of public safety and as part of a "community caretaking function." Id. at 368, 96 S.Ct. at 3097. Such authority, however, is not absolute. According to Opperman, the validity of a police intrusion must be examined by analyzing the reasonableness of the seizure under all the circumstances and each case must be decided on its own facts. Id. at 372-373, 96 S.Ct. at 3098-99.

Opperman recognized various situations in which the impoundment and removal of a vehicle will generally be upheld. Such situations include instances where removal is required to permit the uninterrupted flow of traffic or to preserve evidence, instances where the vehicle is disabled or damaged, and instances where a parking ordinance is violated, thereby jeopardizing both public safety and efficient movement of vehicular traffic. Id., at 368-369, 96 S.Ct. at 3096-97. The Opperman Court recognized that, once a vehicle is impounded, an inventory search pursuant to standard police procedure will generally be upheld where its purpose is to (1) protect the owner's property while the vehicle remains in police custody, (2) protect the police against claims or disputes over lost or stolen property, and (3) protect the police from potential danger. Id. at 369, 96 S.Ct. at 3097.

Although defendant raises several issues concerning both the initial impoundment and the subsequent inventory search, we agree the dispositive issue in this case involves the legitimacy of the initial impoundment. In People v. Krezen, 427 Mich. 681, 685-686, 397 N.W.2d 803 (1986), our Supreme Court applied the Opperman rationale in deciding just such a case. In that case, the defendant was arrested at an airport after picking up a package containing cocaine. After the arrest, the authorities impounded defendant's automobile, which was lawfully parked in an air freight parking lot. A brown vial containing cocaine residue and other paraphernalia were discovered in defendant's purse, which was lying visibly on the front seat of the car. In a plurality opinion, the Court upheld the admission of the cocaine found in the purse.

Writing for the majority, Justice Boyle (with Justices Riley and Brickley concurring) followed Opperman, supra, and indicated that the reasonableness of the impoundment was to be determined from the particular facts of the case. Id. at 686, 397 N.W.2d 803. In her majority opinion, Justice Boyle noted that the possibility of theft or vandalism has been recognized as a valid reason for impounding a car upon the arrest of the driver, id. at 688, 397 N.W.2d 803, and ultimately upheld the impoundment as being a reasonable caretaking function instituted according to standard departmental policy. Id. at 686-689, 397 N.W.2d 803.

In a dissenting opinion, however, Justice Levin (with Justices Cavanagh and Archer concurring) did not believe that an...

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