People v. Cartwright

• Decision Date: 03 June 1997
• Docket Number: Docket No. 106502
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kimberly Ann CARTWRIGHT, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 208

563 N.W.2d 208

454 Mich. 550

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kimberly Ann CARTWRIGHT, Defendant-Appellee.

Docket No. 106502.

Supreme Court of Michigan.

June 3, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Larry J. Burdick, Prosecuting Attorney, and Mark Duthie, Chief Assistant Prosecuting Attorney, Mt. Pleasant, for People.

Dwight D. Carpenter, Clare, for Defendant-Appellee.

Opinion

PER CURIAM.

The question presented is whether marijuana and firearms seized from the defendant's mobile home should be suppressed because a police officer made a brief and cursory inspection of the residence before the arrival of a search warrant. We hold that the evidence should not have been suppressed, and thus reverse the judgments of the Court of Appeals and the circuit court.

I

On August 31, 1994, officers from the Bay Area Narcotics Enforcement Team (BAYANET) and the Michigan National Guard were using a helicopter and a ground crew to conduct a routine drug investigation. Detective Dennis McMahon ¹ was acting as "spotter" during this phase of Operation HEMP.

Shortly before 6:00 P.M., while flying over property near Blanchard in Rolland Township, Isabella County, Detective McMahon saw numerous groups of tall plants that he identified as marijuana. They were near a mobile home and a shed. There also was a tractor and several other vehicles at the site.

As the helicopter crew watched, a pickup truck pulling a small boat entered the long driveway. The driver, later identified as Randy Cartwright, gestured for the aircraft to go away. When it did not, but instead dropped lower, he made an obscene gesture and then ran inside the residence. A short while later, he emerged with the defendant and several children. After Mr. Cartwright unhooked the boat from the pickup, the defendant and the children got in the vehicle and drove away. Mr. Cartwright then reentered the home.

The helicopter tried to stop the departing truck, but the defendant maneuvered the vehicle through a grassy area and escaped. She was arrested later.

Meantime, Detective McMahon saw Mr. Cartwright climbing out of a window of the mobile home. He climbed back in, upon seeing the helicopter, but then left the residence through the back door. Mr. Cartwright ran through a field behind the mobile home, carrying a large object wrapped in a dark coat or blanket, and disappeared into a woods. He still had not been apprehended at the time of the proceedings in this case.

The ground officers converged on the residence at this point. Deputy Gary Theunick was one of the first to arrive. While two other officers went to the area behind the mobile home, Deputy Theunick entered the residence to make certain that no one else was on the premises. He was inside for thirty to forty-five seconds. Although he saw marijuana and firearms, he did not confiscate anything.

Deputy Theunick testified that after reporting his observations to his supervisor, he checked the shed by looking through an open window. He saw numerous marijuana plants inside, but no person. He did not enter the building, but again informed his superior of what he had seen.

Partly on the basis of Deputy Theunick's observations, police obtained a search warrant, which they executed about 8:00 P.M., two hours after they had spotted marijuana from the helicopter. In addition to the approximately seventy marijuana plants that were growing outside the residence, officers found twenty-nine plants in the shed and numerous others stashed behind a stereo inside the mobile home. There were several firearms in a gun cabinet in the master bedroom of the residence, a bowl of marijuana buds setting next to the gun cabinet, and drying marijuana.

The defendant was charged with manufacturing marijuana, ² possession of a firearm during the commission of a felony, ³ and being a felon in possession of a firearm. ⁴ She also was charged as an habitual (second-felony) offender. ⁵

At the conclusion of the defendant's preliminary examination, the district court agreed with defense counsel that Deputy Theunick's entry into the mobile home could not be justified as a protective search. The court concurred with the prosecutor, however, that the seized evidence was admissible under the doctrine of inevitable discovery. The defendant was bound over for trial on all counts.

In the circuit court, the defendant renewed her challenge to Deputy Theunick's entry without a warrant. The circuit court upheld the district court's finding that the deputy's action was not legally justified. The circuit court ruled further that the marijuana and weapons seized from the mobile home were not admissible under the doctrine of inevitable discovery. The court thus dismissed the charges of felony firearm and being a felon in possession of a firearm. The defendant was ordered to stand trial only on the charge of manufacturing marijuana.

The prosecutor appealed to the Court of Appeals. That court granted leave and, in an unpublished opinion per curiam, affirmed the suppression ruling, two to one. ⁶

The prosecutor has appealed the suppression decision to this Court.

II

While conceding that Deputy Theunick's entry into the mobile home might have been good police practice, the district court held that, nonetheless, it was not a proper search without a warrant. The circuit court ruled that the district court did not abuse its discretion in this regard:

There are portions of the testimony that need to be reconciled for one to conclude either way on the issue of whether or not the search is proper; the search, that is, prior to obtaining the search warrant. The District Judge heard the testimony, was able to observe the demeanor of the witnesses and reconciled the testimony. I'm not going to put myself in the place of the examining magistrate or District Judge and second guess him. I must determine whether or not there was an abuse of discretion, and I find none.

The Court of Appeals majority affirmed, rejecting the prosecutor's argument that Deputy Theunick's entry into the mobile home was reasonable under the exigent circumstances exception to the Fourth Amendment warrant requirement. Concern over the safety of the investigating officers, alone, did not provide the necessary circumstance, the majority said.

The majority explained that under the exigent circumstances exception, police may not enter a dwelling absent probable cause to believe that a crime recently was committed on the premises, or that they will find evidence or the persons who committed the suspected crime. People v. Davis, 442 Mich. 1, 24, 497 N.W.2d 910 (1993). There also must be objective facts that demonstrate the need for immediate action either to prevent the imminent destruction of evidence, to protect the officers or other persons, or to prevent the escape of a suspect. People v. Blasius, 435 Mich. 573, 593-594, 459 N.W.2d 906 (1990).

The majority observed that in the instant case, although the prosecution introduced evidence pertaining to the need to protect the investigating police officers, the district court apparently found this evidence to lack veracity. An appellate court will defer to the trial court's resolution of factual issues, especially where it involves the credibility of witnesses. People v. Crowell, 186 Mich.App. 505, 507-508, 465 N.W.2d 10 (1990), remanded 437 Mich. 1004, 469 N.W.2d 305 (1991).

The majority found the cases relied on by the prosecutor to be distinguishable, e.g., Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), and Maryland v. Buie, 494 U.S. 325, 334-336, 110 S.Ct. 1093, 1098-1099, 108 L.Ed.2d 276 (1990). The police in Hayden were responding to a report that a suspect was in the house. In Buie, the protective sweep was incident to an arrest. In the instant case, however, the majority noted that the police had no reason to believe that an additional suspect was in the mobile home. Moreover, there were no time constraints to consider should a suspect later have been determined to be hiding in the residence.

The dissent believed that the district court clearly erred in finding that Deputy Theunick's protective search was unconstitutional. In addition to the facts recited by the majority, the dissent focused on Mr. Cartwright's arrival during the helicopter surveillance, his obscene hand gesture, and the fact that the defendant drove off a short time later with several children, evading the helicopter's attempts to stop her vehicle.

The dissent also emphasized that the officers on the ground had been alerted by the helicopter crew as they approached the mobile home that Mr. Cartwright had fled into the woods behind the residence with what could be a long gun. Deputy Theunick conducted a protective search of the dwelling while other officers pursued Mr. Cartwright. The dissent believed it critical that this entire episode resulted from a random fly-over, and that police had no information about the nature of the drug operation on the defendant's property or the number of persons involved.

It noted that the district court seemed to base its decision on the clearly erroneous premise that a protective search is not permissible on constitutional grounds. In so doing, the court failed to make a definitive factual finding that the protective search in this case was not necessary. Under Buie, police have authority to conduct a protective search if they reasonably believe that the area in question harbors an individual who poses a danger to them or to others. Such a search is quick and limited, and conducted for the sole purpose of ensuring the safety of police officers and other persons.

The dissent further noted that here officers were pursuing Mr. Cartwright, whom they had probable cause to arrest. He had just left the mobile home, and there was reason to believe he had a gun. The area was remote, and officers had no prior...