People v. Blackburne

• Decision Date: 18 June 1986
• Docket Number: Docket No. 84003
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Jay BLACKBURNE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 850

387 N.W.2d 850

150 Mich.App. 156

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Jay BLACKBURNE, Defendant-Appellant.

Docket No. 84003.

Court of Appeals of Michigan.

Submitted Dec. 4, 1985.

Decided Jan. 10, 1986.

Leave to Appeal Denied June 17, 1986.

Released for Publication June 18, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul L. Maloney, Pros. Atty., and Brian S. Berger, Asst. Pros. Atty., for the People.

State Appellate Defender by Chari K. Grove, for defendant-appellant on appeal.

Before BEASLEY, P.J., and MAHER and TAHVONEN, ^* JJ.

PER CURIAM.

On August 13, 1984, defendant, Robert Jay Blackburne, pled guilty to possession of cocaine, less than 50 grams, in violation of M.C.L. Sec. 333.7403(1) and (2)(a)(iv); M.S.A. Sec. 14.15 (7403)(1) and (2)(a)(iv), and to carrying a concealed weapon, in violation of M.C.L. Sec. 750.227; M.S.A. Sec. 28.424. On October 8, 1984, defendant was sentenced to concurrent prison terms of not less than two years nor more than four years for possession of cocaine and not less than two years nor more than five years for carrying a concealed weapon. Defendant appeals from these convictions as of right.

On appeal, defendant claims that the district court erred in not suppressing evidence presented against him at the preliminary examination held on January 10, 1984. After hearing arguments and receiving written briefs from both parties addressing defendant's motion to suppress the evidence, the district court found that the search and seizure which produced the evidence against defendant was not unreasonable or illegal. The circuit court also denied defendant's motion to suppress the evidence in an order dated July 10, 1984.

At the outset, we decide whether defendant can raise this issue on appeal after pleading guilty to the charges against him. Presently, there is a split on this issue in recent decisions of this Court and in dicta included in recent decisions of the Michigan Supreme Court. In People v. Eubank, ¹ this Court held that on appeal a defendant cannot raise the issue of an illegal search and seizure after his plea of guilty has been accepted in the trial court.

However, in People v. Alvin Johnson, ² a 1976 case which allowed a defendant to raise a claim of double jeopardy after pleading guilty, the Michigan Supreme Court stated:

"Certainly it is true that those rights which might provide a complete defense to a criminal prosecution, those which undercut the state's interest in punishing the defendant, or the state's authority or ability to proceed with the trial may never be waived by guilty plea. These rights are similar to the jurisdictional defenses in that their effect is that there should have been no trial at all. The test, although grounded in the constitution, is therefore a practical one. Thus, the defense of double jeopardy, those grounded in the due process clause, those relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed are other examples. Wherever it is found that the result of the right asserted would be to prevent the trial from taking place, we follow the lead of the United States Supreme Court and hold a guilty plea does not waive that right." (Footnotes omitted, emphasis added.)

In People v. Reid, ³ the Supreme Court recently, in 1984, repeated the above quoted dicta. In Reid, the Court allowed a defendant to raise the issue of an illegal search and seizure after he entered a conditional guilty plea where all the parties agreed that the defendant could raise the issue on appeal.

The Supreme Court squarely addressed the unconditional guilty plea situation presented in this case only in a concurring opinion written by Justice Moody in People v. White. ⁴ In that opinion, Justice Moody said that the decisions in this Court, not allowing defendants to raise the search and seizure issue after entering a plea of guilty, were correct. Justice Moody reasoned that the entry of a guilty plea did away with the need for any separate evidentiary, factual basis to convict defendant. Since the suppression of evidence in this situation would have no effect, the defendant should not be permitted to raise the illegal search and seizure issue after pleading guilty. There should not be any retroactive finding of a lack of jurisdiction based on lack of admissible evidence once a guilty plea has been accepted.

We believe that Justice Moody's position is the sound, preferable, logical view and that our prior decisions in this Court to that effect are correct. However, the dicta in recent majority opinions of the Michigan Supreme Court seem to indicate that a defendant can raise this issue on appeal even after pleading guilty. In addition, now that conditional guilty pleas are clearly allowed by Reid, supra, this situation involving an unconditional guilty plea is unlikely to occur in the future. And finally, the prosecutor concedes this issue in this case. Against this background, we consider the merits of defendant's claim of an illegal search and seizure.

In the within case, the record reveals that on December 29, 1983, defendant was a passenger in a car with three other men. The car broke down on I-94 as the four men were travelling from Detroit to Chicago. The four men walked to a gasoline station and called a tow truck to tow their car to another gas station that was able to make repairs. When the tow truck arrived, the driver refused to transport all four men in the vehicle being towed. Two of the men then had to call a cab to get to the garage where the car would be repaired. Upon driving these two men to the garage, the cab driver overheard a conversation between them. He noted that one of the men was reluctant to enter the cab. The other man said: "It's all right, the car is going to be okay and don't worry about the shit, it's going to be okay." (Emphasis added.)

After dropping the two men off at the garage, the cab driver contacted a police detective to whom he had given information in the past. The cab driver told the detective about the conversation and that one of the men was a large Cuban who spoke mostly in Spanish and was constantly moving around and acting peculiar. The cab driver also said that he had seen a two-inch thick wad of money, with $100 bills on the outside, in the possession of the Cuban. The cab driver also reported that the broken-down car in which they had been riding had Florida license plates.

Upon receiving this information, the detective relayed it to another detective on the narcotics squad. Based on this information and his two and one-half years of experience as a narcotics officer, the narcotics detective decided to investigate.

The narcotics detective articulated his basis for suspecting that the four men were transporting drugs as follows: the reference of one of the men to "shit" which, in street drug parlance, means any controlled substance; the route defendants were travelling (I-94) was commonly known as a major drug route between Detroit and Chicago where numerous drug arrests had previously occurred; the vehicle driven by the four men had Florida license plates (Florida is a common place of import for drugs destined for Detroit and Chicago); the reluctance of the Cuban man to leave the car; and the observation of a large wad of money.

The detective arranged for assistance from two state police troopers. He briefed the uniformed troopers on the situation and directed them to watch the garage from their patrol car. The detective then went to the garage where the four men were waiting for their car to be repaired. At the garage, the narcotics detective observed the four men and their automobile. One of the four men stepped between him and the car as he tried to get near the car, but he was able to see a knife on the floor of the car. The detective then left the garage.

The repairs on the car were finished and the four men drove out of the garage. While driving out of the garage, the car remained on the wrong side of the center line for a distance of about 1/8th of a mile and then pulled into another gas station. The state troopers and the narcotics detective followed in separate cars, pulled into the gas station, got out of their cars and approached the vehicle with the four men. One trooper asked the driver to get out of the car. As the driver got out of the car, the trooper observed a knife on the floor of the car. He then told the other trooper about the knife. The other trooper also noted that one of the men was sitting on his hands and might have a weapon. The two men on the passenger side got out of the car, and the trooper asked the remaining passenger to also get out.

When all four men were out of the car, one trooper patted down the driver for weapons and noted no hard objects. The other trooper patted down the front seat passenger, defendant herein, finding a handgun in defendant's belt. The trooper then patted down one of the backseat passengers and felt two hard objects in his pockets. The trooper opened the passenger's pockets and observed a large amount of money wrapped in rubber bands in one pocket and a brown paper bag folded up with rubber bands around it in the other pocket. The trooper left the items in the passenger's pockets and called the narcotics detective over to look at the items in the pockets. Based on his police narcotics experience, the detective said he believed the paper bag contained controlled substances. The trooper then seized the paper bag. The other trooper then found exactly the same items on the other rear seat passenger and also seized that paper bag. The narcotics detective opened one of the paper bags and found a white, powdery substance which was later revealed to be cocaine. Defendant was then arrested and charged based on the gun found on him and the cocaine found on the other passengers in...