People v. Alfafara

• Decision Date: 01 April 1985
• Docket Number: Docket No. 75989
• Citation: 364 N.W.2d 743,140 Mich.App. 551
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Moriano Florencio ALFAFARA, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 743

364 N.W.2d 743

140 Mich.App. 551

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Moriano Florencio ALFAFARA, Defendant-Appellee.

Docket No. 75989.

Court of Appeals of Michigan.

Submitted Oct. 11, 1984.

Decided Feb. 5, 1985.

Released For Publication April 1, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and John L. Kroneman, Asst. Pros. Atty., Pontiac, for the People.

Kevin A. McNulty, Detroit, for defendant-appellee on appeal.

Before DANHOF, C.J., and GRIBBS and SHUSTER ^*, JJ.

PER CURIAM.

Defendant was charged with possession of marijuana, possession of diazepam (Valium), possession of amobarbital and possession of cocaine, M.C.L. Sec. 333.7403, subds. (1), (2)(a)(iv), (2)(b), and (2)(d); M.S.A. Sec. 14.15(7403), subds. (1), (2)(a)(iv), (2)(b), and (2)(d). The district court granted defendant's motion to suppress evidence and dismissed all the charges. The circuit court affirmed. The people appealed to this Court by leave granted, and we now reverse.

At approximately 2:30 a.m. on July 8, 1981, Michigan State Police Troopers Peete and DeWitt stopped defendant's Buick on I-75 in Troy for speeding, having clocked defendant on radar going 70 miles per hour in a 55-mile-per-hour zone. The officers trained their car's spotlight on defendant's car, illuminating its interior. Both troopers also shone their flashlights into the car as they walked up to it, one on either side.

Trooper Peete, on the driver's side, requested and received a driver's license, registration and proof of insurance from defendant. He testified that defendant was "very nice" to him, and that defendant appeared to be in "good condition". Bending down in order to speak with the driver, Trooper Peete noticed "an alligator clip * * * with a roach attached to it" between the two sun visors. He asked defendant to get out of the car, confiscated the item and placed defendant under arrest for possession of marijuana.

Trooper DeWitt approached the Buick on the passenger side. She scanned the interior of the car with her flashlight to ascertain whether defendant was alone and whether he had any weapons which might be used against the officers. She found no weapons, but did notice "a roach clip, a little metal clip, with a cigarette butt from a hand-rolled cigarette" in between the visors, above the rearview mirror. She testified that she was not absolutely certain what the cigarette was but told her partner that it was possibly a controlled substance.

After escorting defendant to the police vehicle and seating him in the back seat, Trooper DeWitt searched the Buick's passenger compartment and found a small black bag on the front passenger seat. She opened the bag and discovered four small glass vials containing a powdery residue, a film canister containing blue capsules and yellow pills, a metal container, which she later learned was a "cocaine sniffer", and a short piece of straw. After Trooper Peete observed the contents of the black bag, he released defendant and retained the suspected narcotics, in accordance with State Police Department procedures.

Crime lab analysis revealed that the powdery residue contained cocaine, and that the pills were diazepam and amobarbital.

The district court granted defendant's motion to suppress the evidence supporting all four drug charges. It ruled that defendant's arrest for possession of marijuana was illegal because the officers did not have probable cause to believe that the hand-rolled cigarette was marijuana. Then, because the arrest was improper, the evidence found in the black bag must be suppressed as fruit of the illegal arrest, the court ruled.

The circuit court affirmed the district court, noting that even if the arrest were legal, the search of the bag was still impermissible because Michigan had not adopted the U.S. Supreme Court's decision in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), permitting a search of the passenger compartment of a vehicle incident to its occupant's lawful arrest.

The prosecution has appealed to this Court. We must decide, first, whether the state troopers had probable cause to believe that the cigarette butt they observed contained marijuana so as to justify their seizure without a warrant of the item and subsequent arrest of defendant for possession of marijuana. Then, assuming the arrest was proper, we must determine whether the search of defendant's car following his arrest, which yielded other drugs, was constitutional.

I

A court's ruling on a motion to suppress evidence will not be set aside unless clearly erroneous. A ruling is clearly erroneous when the reviewing court is firmly convinced that a mistake has been made. People v. Reed, 112 Mich.App. 693, 695, 317 N.W.2d 228 (1982).

The Fourth Amendment to the U.S. Constitution, and Article 1, Sec. 11 of the Michigan Constitution, have generally been held to prohibit searches and seizures conducted without a warrant.

There are exceptions, however, one of which is when the item is in "plain view". People v. Whalen, 390 Mich. 672, 677, 213 N.W.2d 116 (1973); Coolidge v. New Hampshire, 403 U.S. 443; 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). When the police justifiably intrude into an area where a person has a reasonable expectation of privacy and observe evidence or contraband, they may seize it without a warrant if the conditions of the plain view doctrine as set forth in Coolidge are present. People v. Myshock, 116 Mich.App. 72, 75, 321 N.W.2d 849 (1982). The requirements of the plain view doctrine enumerated in Myshock are:

"(1) prior justification for intrusion into the otherwise protected area; (2) the evidence is obviously incriminatory or contraband; and (3) the discovery of the evidence is inadvertent." Id., pp. 75-76, 321 N.W.2d 849.

Other panels of this Court have required exigent circumstances as well. People v. Johnson, 104 Mich.App. 629, 635, 305 N.W.2d 560 (1981); People v. Raybon, 125 Mich.App. 295, 301, 336 N.W.2d 782 (1983). The car's mobility provided the exigent circumstances in this case. People v. Futrell, 125 Mich.App. 568, 572-573, 336 N.W.2d 834 (1983).

Defendant's vehicle was properly stopped for a traffic violation, speeding. Accordingly, the officers had the right to approach the vehicle, keep its passengers under observation, People v. Eichenberg, 108 Mich.App. 578, 580, 310 N.W.2d 800 (1981), and look inside the vehicle. People v. Julkowski, 124 Mich.App. 379, 384, 335 N.W.2d 47 (1983). That the discovery of the evidence was inadvertent was established by the testimony of both officers that they were checking for weapons when they shone their flashlights into defendant's car.

The only problem in this case would be whether the partially-burned cigarette in a roach clip was "obviously" incriminatory or contraband. To satisfy this element of the plain view doctrine, the officers need only have probable cause to believe that the object is evidence or an implement of a crime. People v. Dugan, 102 Mich.App. 497, 504, 302 N.W.2d 209 (1980), lv. den. 411 Mich. 989 (1981). Both lower courts decided that the officers in this case did not have probable cause to believe the cigarette was contraband.

This Court has in several cases considered whether probable cause existed for believing that an object in plain view was, in fact, a controlled substance, but these cases involved elements different from those in the instant case. For example, in People v. Ridgeway, 74 Mich.App. 306, 253 N.W.2d 743 (1977), the Court rested its finding of probable cause mainly on the officer's experience and knowledge that tinfoil packets like the one on the floor of the car often contained narcotics. Id., p. 314, 253 N.W.2d 743. In People v. Kincaid, 92 Mich.App. 156, 284 N.W.2d 486 (1979), the Court cited the arresting officer's prior experience with coin envelopes as well as defendant's suspicious act in throwing the envelopes into the trunk of the car at the approach of the police officer in finding probable cause. With these two facts the Kincaid Court thus distinguished People v. Falconer, 76 Mich.App. 367, 256 N.W.2d 597 (1977), lv. den. 402 Mich. 816 (1977), where this Court found no probable cause. In Julkowski, supra, the Court found probable cause because the defendant appeared to be nervous, hyperactive and smelled of marijuana.

In the instant case, the troopers testified that defendant was not driving erratically and appeared to be in good condition. Trooper Peete had been on the force 3 years and Trooper DeWitt 5 years, at the time of this incident, but there was no specific testimony on their experience with identifying marijuana.

On the other hand, we consider it highly unlikely that state troopers would have reason to believe that the substance in the roach clip could have been anything other than marijuana. We agree with the Alabama court's observation in Herrin v. State, 349 So.2d 103, 109 (Ala.Cr.App., 1977):

"To say that Officer Reid did not recognize this substance as contraband defies reality. In this day and time there is a greater awareness of marijuana because not only of the many articles printed concerning this material, but information disseminated over the radio and television. The general public is more aware of marijuana than any other prohibited substance and its availability and use are widespread. Arrests for possession of marijuana are daily occurrences in our State." Accord: Smith v. State, 363 So.2d 21 (Fla.App., 1978).

The arresting officer in that case was a state trooper with five years' experience.

In the instant case, not only did the officers have direct sight of a hand-rolled cigarette, but the cigarette was found attached to an alligator clip or, as described by both officers, a "roach clip". It was located in a position that indicated that it was being preserved for future use. These circumstances do...