People v. Blasius

• Decision Date: 11 September 1990
• Docket Number: No. 1,No. 84040,84040,1
• Citation: 435 Mich. 573,459 N.W.2d 906
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Eugene BLASIUS, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 906

459 N.W.2d 906

435 Mich. 573

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Eugene BLASIUS, Defendant-Appellee.

No. 84040.

Calendar No. 1.

Supreme Court of Michigan.

Argued April 3, 1990.

Decided Sept. 11, 1990.

Frank J. Kelley, Atty. Gen., Jeffrey C. Middleton, Pros. Atty., and Robert Cares, Asst. Pros. Atty., Centreville, for the People.

Warner, Norcross & Judd by David L. Kaczor, Grand Rapids, for defendant-appellee.

BRICKLEY, Justice.

A joint team of federal and local law enforcement officers entered the defendant's residence without a warrant or consent in October of 1986. Once inside, an officer conducted a pat-down search of the defendant and found approximately six ounces of cocaine. The officers remained in the residence while waiting for a magistrate to issue a search warrant. The warrant was issued some five hours later, and the officers conducted a search which additionally uncovered approximately thirty pounds of marijuana and numerous illegal firearms.

This case presents the issue whether exigent circumstances justified the entry of the defendant's residence without a warrant. ¹ More precisely, the Court must decide whether the risk of removal or destruction of evidence justified an entry and protective sweep-type search to secure the premises pending issuance of a warrant. We hold that exigent circumstances justified the police entry without a warrant.

I

This appeal arises out of the events of an undercover drug operation by agents and officers of the Drug Enforcement Agency (DEA) and the Southwest Enforcement Team (SWET). Testimony at the preliminary examination produced the following narrative. ²

On October 21, 1986, at 3:45 p.m., DEA Agent Gay and one Newbury (apparently a police informant) went to the residence of Gieber, the defendant's alleged coconspirator, for the purpose of buying cocaine. ³ The trio left Gieber's residence in Agent Gay's car. Gieber directed them to a nearby parking lot.

Gieber told Gay that he had to make a phone call and ostensibly departed to do so. However, unknown to Gieber, a police surveillance team watched him walk instead a few blocks to the defendant's residence. The surveillance team also saw Gieber leave the residence in the company of the defendant. Gieber then returned alone to the parking lot where Agent Gay waited.

Agent Gay testified that Gieber returned

"really excited. [Gieber] told me he had just seen a pound and a half of cocaine. It was the best cocaine he had seen in a long time. In fact, [Gieber] described it as crystalline cocaine; it was kind of winking at him; it was kind of hard for him to leave."

The group drove to another location nearby, where Agent Gay handed Gieber $2,400 in premarked cash and directed him to purchase an ounce of cocaine. Gieber again departed. Once again, agents on surveillance observed Gieber walk to the defendant's residence and return to Agent Gay's car. Gieber handed Gay a package containing a solid white substance. Later, a police laboratory analysis revealed that this package contained approximately one ounce of ninety-four percent pure cocaine. ⁴

Agent Gay and Gieber discussed purchasing an additional ounce of cocaine at a later time. However, Gay testified that Gieber

"told me that he couldn't guarantee it. If I didn't get the second ounce today, he couldn't guarantee I'd get it tomorrow. [Gieber] was sure by the end of the afternoon it would be gone [because the cocaine] was a good product. It was going out fast."

Agent Gay took Gieber home about 4:45 p.m. He then immediately met with his superiors in charge of the operation. They quickly discussed a course of action. In order to prevent the evidence from being removed or destroyed, the superiors decided to "impound" the defendant's residence from the inside.

The law enforcement officers asserted two primary reasons for their decision to impound the residence. First, the officers had observed vehicular and pedestrian traffic to the residence:

"[D]uring the two separate times that [Gieber] had gone to the house, we saw people come and go on foot and in vehicles. When we went back the second time, a different vehicle was parked in the driveway that wasn't there during the first time. Our concern was ... [to] secure the premises, and get a search warrant."

The vehicular traffic to the residence was of special concern to the officers because

"[i]mmediately preceding our attempts to secure [the residence], we were also aware that there were vehicles at the residence at that time, which had been the subject of earlier surveillance by the team ... with respect to narcotics distribution here in Three Rivers, and there were a number of people in the residence."

Second, the officers feared that on the basis of Gieber's statement that the cocaine was "going fast," any delay in obtaining a search warrant would result in the removal of illegal narcotics and the marked money given to Gieber for the initial drug purchase.

"[I]f we took the time to go, go ahead and get the search warrant, as we did--it took five hours as it is--we didn't believe the cocaine would still be there five hours later."

The officers thus decided "[t]o secure the house and the people in there, so the evidence wasn't destroyed, so the money wasn't removed, and then at that point [we] would go get a search warrant."

Thus, numerous officers entered the defendant's residence at approximately 5:30 p.m., confronting the defendant's preteen daughter upstairs and escorting her downstairs. The testimony did not reveal which officer first confronted the defendant. However, Officer Orr testified that he encountered the defendant already lying prone on the floor, apparently in custody with four other men.

Officer Orr testified that Mr. Blasius lay within an arm's reach of a gun cabinet which contained an Uzi automatic rifle. Officer Orr patted down the defendant and detected what he described as "a large solid object behind the zipper area of his pants, below the belt ... [i]t felt to me to be a small handgun." Officer Orr then reached inside defendant's pants and removed a plastic baggy containing a solid white substance. Police technicians later analyzed this substance and found it to comprise approximately six-and-one-half ounces (182 grams) of ninety-four percent pure cocaine. The police also discovered on the defendant's person $2,100 of the $2,400 in premarked cash given to Gieber. The police arrested and removed the defendant.

The officers waited in the residence with the defendant's wife until they obtained a search warrant approximately five hours later.

The officers explained that it took so many hours to obtain the warrant because

"we were initially prepared to go somewhere else and to do something else than we ended up doing [that evening].... [T]here was a joint investigative activity between [SWET and the DEA], and it did take our putting together information from different people who were at different places at different times, and that complicated ... the construction of the search warrant."

The officers searched the residence for about five hours after the issuance of the warrant, and discovered approximately thirty pounds of marijuana and numerous illegal firearms.

The people charged the defendant with the following six felonies: (1) possession with intent to deliver more than fifty grams of cocaine, M.C.L. Sec. 333.7401(2)(a)(iii); M.S.A. Sec. 14.15(7401)(2)(a)(iii), (2) conspiracy to deliver less than fifty grams of cocaine, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv), (3) delivery of less than fifty grams of cocaine, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv), (4) possession with intent to deliver marijuana, M.C.L. Sec. 333.7401(2)(c); M.S.A. Sec. 14.15(7401)(2)(c), (5) possession of a short-barreled rifle, M.C.L. Sec. 750.224b; M.S.A. Sec. 28.421(2), and (6) possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2).

II

The Third District Court, Second Division, conducted the defendant's preliminary examination in December of 1986. At its conclusion, the magistrate suppressed the fruits of the search and dismissed all counts against the defendant.

The magistrate ultimately concluded that exigent circumstances did not justify the entry without a warrant. He issued a wide-ranging opinion that roundly criticized both the exclusionary rule and the inefficiencies of Michigan search warrant procedure. The magistrate then articulated three reasons for suppressing the seized evidence.

First, he concluded that even though the police had probable cause to believe that the defendant possessed cocaine, the facts presented did not justify an immediate search without a warrant. He recognized that "there are exigent circumstances that can be developed for the entry into a home in the absence of a search warrant," but decided that the instant case did not involve such circumstances. ⁵ He concluded simply that "there must be something more than the possibility that evidence will not just be destroyed or evidence might be broken up." (Emphasis supplied.)

Second, the magistrate postulated that the police could have chosen alternatives less intrusive than an entry without a warrant:

"[While the police] might have found less [cocaine] on [Blasius] 6 hours later or might not have found any on him 6 hours later ... they certainly had reasonable cause to stop anyone who left that house ... so they might have found a number of persons in possession who [could] give identity, namely testimony in exchange for immunity."

Third, the magistrate flatly rejected the prosecution's argument that exigent circumstances existed "to merely protect the quantity" of drugs the police might find in the residence. Similarly, the magistrate declined to find the removal or loss of the premarked "buy" money constituted an exigent circumstance. For these reasons the...