People v. Chernowas
| Decision Date | 26 January 1982 |
| Docket Number | Docket No. 51987 |
| Citation | 314 N.W.2d 505,111 Mich.App. 1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James CHERNOWAS, Joseph Chernowas, and Richard Hernandez, Defendants-Appellees. 111 Mich.App. 1, 314 N.W.2d 505 |
| Court | Court of Appeal of Michigan — District of US |
[111 MICHAPP 2] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Timothy Scallen, Asst. Pros. Atty., for the people.
Mitchell G. Howard, Canton, for defendants-appellees Chernowas.
Before BRONSON, P. J., and MAHER and F. X. O'BRIEN, * JJ.
The people appeal from two orders entered on April 10, 1980, in the Detroit Recorder's Court suppressing certain statements and physical evidence and dismissing the charges brought against all defendants. Each defendant had been charged with carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 28.424.
The facts are not in dispute. On February 29, [111 MICHAPP 3] 1980, at approximately 3:40 a. m., Michigan State Police Troopers Gary Bland and Larry Waldron stopped defendants' automobile on west-bound I-94 for excessive noise and a missing brake light. Defendant Hernandez was driving the vehicle and defendants Chernowas were passengers.
As Waldron approached, Hernandez exited from the car. The pair met near the rear of the auto. Trooper Waldron detected a "strong odor" which he believed to be marijuana smoke. Consequently, he asked Hernandez if he had been smoking marijuana. Hernandez answered, "yes". Waldron then asked him if there was any more marijuana in the vehicle. Hernandez replied that he did not think so. Prior to the questioning, Waldron had not advised Hernandez of his Miranda 1 rights.
Due to Hernandez's statements, Officer Bland asked the Chernowases for identification. Neither could produce any, so Bland asked them to leave the car. He then looked into the vehicle and saw a brown paper bag lying on the rear seat. He entered the vehicle, looked into the bag, and saw a plastic container containing what he believed to be marijuana. While leaving the vehicle, he observed the butt of a gun protruding from under the front passenger seat. He ultimately discovered a loaded .357 Magnum and a .45-caliber automatic under the seat. Consequently, the defendants were arrested.
Another state trooper on patrol, Shelby Slater, stopped to give assistance. Slater searched James Chernowas and found a loaded gun on his person. 2
[111 MICHAPP 4] The People first allege that under the holding of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), defendants did not have standing to challenge the search. We decline to address the merits of this claim because it is raised for the first time on appeal and because the record is not sufficiently developed to resolve the issue of whether the defendants had a "legitimate expectation of privacy" in the searched premises under Rakas. We do note, however, that the charge against James Chernowas resulted from evidence actually removed from his person. Even under Rakas, a defendant has a legitimate expectation of privacy in his person and clothing.
We further question the applicability of Rakas in Michigan. In certain respects, Michigan constitutional law provides greater protection to its citizenry to be free from unreasonable searches and seizures than does federal constitutional law. See, People v. Nabers, 103 Mich.App. 354, 375, 303 N.W.2d 205 (1981), rev'd in part on other grounds 411 Mich. 1046, 309 N.W.2d 187 (1981). We note that Michigan Supreme Court has never cited Rakas as authority for the proposition that a defendant has no standing to challenge the legality of a search. In People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), cert. den. 423 U.S. 878, 96 S.Ct. 152, 46 L.Ed.2d 111 (1975), the Michigan Supreme Court rejected United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), as controlling in Michigan. In Beavers, the Court decided as a matter of Michigan constitutional law that a person's reasonable[111 MICHAPP 5] expectation of privacy precluded the possibility that communications directed in private to one person could be simultaneously intercepted electronically by a third person. The United States Supreme Court in White had reached the opposite conclusion.
Rakas equates a "legitimate expectation of privacy" with proprietary rights. The dissent in Rakas was unable to see the logic behind the Rakas holding that a person who is legitimately on the premises when the search occurred does not have a reasonable expectation of privacy in respect to everybody except the owner of the premises. We believe the dissent's position is well taken. We urge the Michigan Supreme Court to address the applicability of Rakas in Michigan at its earliest opportunity.
On the merits of this case, we believe the lower court properly suppressed the evidence in issue. In our opinion, this case is indistinguishable from People v. Hilber, 69 Mich.App. 664, 245 N.W.2d 156 (1976), aff'd 403 Mich. 312, 269 N.W.2d 159 (1978). In Hilber, the defendant was stopped for speeding. As a state trooper spoke with defendant, the officer smelled the odor of burned marijuana. The trooper asked whether there was any more marijuana in the car. At this point, defendant handed the officer a package of cigarettes containing marijuana. This Court upheld the lower court's suppression of the marijuana as a product of improper questioning in violation of Miranda. Here, the immediate product of the improper questioning was Hernandez's statement that he had been smoking marijuana. Thus, the statements were properly suppressed.
In the Supreme Court opinion in Hilber, the Court held that the odor of marijuana smoke by itself was insufficient to constitute probable cause [111 MICHAPP 6] to search a vehicle. In this case, as in Hilber, if Hernandez's statements are suppressed, the sole basis for the search was the smell of burned marijuana. Indeed, on appeal, the people's argument for admissibility is premised on probable cause being established by the odor and the incriminating statements.
The discovery of the guns occurred during the course of an illegal search. As such, they constituted the "fruit of the poisonous tree" and were properly suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Hilber, supra, 69 Mich.App. 667, 245 N.W.2d 156.
All of the authority cited by the people is inapposite as will be briefly discussed. In both People v. Dorner, 66 Mich.App. 298, 238 N.W.2d 845 (1975), and People v. Dunlap, 82 Mich.App. 171, 266 N.W.2d 637 (1978), the questioning by the police was of a general investigatory nature where it was unclear whether any crime had been committed. The odor of the marijuana in this case, however, immediately made defendants the focus of a criminal investigation. 3
The people also cites People v. Rembo, 73 Mich.App.[111 MICHAPP 7] 339, 251 N.W.2d 577 (1977); People v. Ridgeway, 74 Mich.App. 306, 253 N.W.2d 743 (1977), lv. den. 401 Mich. 831 (1977), and People v. Thompson, 81 Mich.App. 54, 264 N.W.2d 118 (1978), for the proposition that the combination of the odor and statements satisfied the probable cause requirement. In Rembo, the defendant, while being arrested for driving while intoxicated, volunteered the information that he had been smoking a "joint". While defendant exited from the car, the police observed a prescription bottle in the front seat and the odor of marijuana in the vehicle. The result in the instant case would be different if, without interrogation, Hernandez had stated he had been smoking marijuana. In Ridgeway, the Court said probable cause was present where the officers smelled burning...
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People v. Wagner
...of privacy in the premises in respect to everybody but its occupants or joint occupants, as the case may be. See, People v. Chernowas, 111 Mich.App. 1, 314 N.W.2d 505 (1981). See, also, for similar holdings, State v. Johnson, 301 N.W.2d 625 (N.D., 1981), State v. Morsman, 394 So.2d 408 (Fla......
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...of the defendants out of the vehicle on the basis of People v. Hilber, 403 Mich. 312, 269 N.W.2d 159 (1978), and People v. Chernowas, 111 Mich.App. 1, 5-6, 314 N.W.2d 505 (1981). The judge took the objection under advisement while he gave the prosecution a fifteen-minute opportunity to call......
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...opinion in People v. Hilber, 403 Mich. 312, 269 N.W.2d 159 (1978) (which was only signed by two justices), and People v. Chernowas, 111 Mich.App. 1, 314 N.W.2d 505 (1981), which distinguished between the smell of burned and unburned marijuana. We also note that the majority in Taylor declin......
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People v. Grainger
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