People v. Custer

CourtCourt of Appeal of Michigan (US)
Citation618 N.W.2d 75,242 Mich. App. 59
Docket NumberDocket No. 218817.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Robert CUSTER, Defendant-Appellee.
Decision Date03 October 2000

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Larry J. Burdick, Prosecuting Attorney, and Roy R. Kranz, Assistant Prosecuting Attorney, for the people.

Hall & Lewis, P.C. (by John W. Lewis and Becky J. Bolles), Mt. Pleasant, for the defendant.

Before DOCTOROFF, P.J., and FITZGERALD and WILDER, JJ.

WILDER, J.

Defendant was charged with delivery and manufacture of five to forty-five kilograms of marijuana, M.C.L. § 333.7401(2)(d)(ii); MSA 14.15(7401)(2)(d)(ii), maintaining premises for the use or sale of controlled substances, M.C.L. § 333.7405(1)(d); MSA 14.15(7405)(1)(d), and conspiracy to deliver five to forty-five kilograms of marijuana, M.C.L. § 750.157a; MSA 28.354(1), M.C.L. § 333.7401(2)(d)(ii); MSA 14.15(7401)(2)(d)(ii). The district court granted defendant's motion to suppress the evidence and dismissed the case, finding that the police conducted an improper patdown search of defendant and, using the "fruit of the poisonous search," conducted an invalid search of his home without a warrant. The circuit court affirmed the dismissal and this Court granted leave to appeal "limited to the issues raised in the application." We affirm.

I. Facts and Procedural Background

Officer Robert Greenleaf and a fellow officer from the Bay City Police Department were dispatched to a residence in Bay City to investigate a possible trespass. When they arrived at the location, the officers observed a parked vehicle occupied by two individuals. Officer Greenleaf approached the vehicle in which Billy Holder and defendant were located and, suspecting that Holder, the driver of the vehicle, was intoxicated, asked him to turn off the ignition and step out of the vehicle. After determining that Holder was too intoxicated to drive, Officer Greenleaf advised Holder that he could either have his vehicle towed to an impound lot or back to his residence at his own expense. Holder elected to have the vehicle towed back to his residence in Mt. Pleasant. Officer Greenleaf asked Holder to demonstrate that he had sufficient funds to pay the cost of towing the vehicle. Holder retrieved a wad of money out of his pants pocket estimated at approximately $500 in mostly $10 and $20 bills, along with a small plastic bag that appeared to Officer Greenleaf to contain marijuana. Officer Greenleaf arrested Holder, searched him for weapons, and placed him in the patrol car. As he entered the patrol car, Helder yelled to defendant, "[d]on't tell them a f...... thing."

After Holder was secured in the police vehicle, Officer Greenleaf asked defendant to get out of the vehicle. Officer Greenleaf did not initially fear for his safety, but after discovering marijuana on Holder, he concluded, on the basis of his training and experience, that defendant could be armed and dangerous. Thus, in order to ensure his safety, and that of his partner, Officer Greenleaf conducted a patdown search of defendant for weapons and contraband. Officer Greenleaf also indicated that defendant was going to be transported to the police department for questioning and it was departmental policy that anyone being transported in a police vehicle was to be patted down for weapons or possible illegal substances. During the patdown, Officer Greenleaf felt what he believed to be a two- by three-inch card of blotter acid in defendant's front pants pocket and he removed the item. Instead of a card of blotter acid, however, Officer Greenleaf found three Polaroid pictures and placed them facedown on top of the vehicle without inspecting them. No other items were found on defendant. After completing the patdown, Officer Greenleaf retrieved the pictures from the roof of the vehicle and examined them. The three photographs depicted (1) Holder carrying two one-pound bags of marijuana with additional one-pound bags of marijuana on a coffee table in front of him, (2) a number of one-pound bags of marijuana, and (3) Holder sitting in a chair next to a suitcase that contained numerous one-pound bags of marijuana. The photographs were seized and defendant was transported to the police station for questioning.

Detective Joseph Lanava, who arrived at the scene to assist in the investigation, contacted Detective Jesse Flores in Mt. Pleasant, where defendant resided, and provided him with three addresses in Mt. Pleasant to check in connection with a traffic stop where a controlled substance was discovered. Specifically, Detective Lanava asked Detective Flores to determine if any of the houses contained furnishings similar to those found in the photographs seized from defendant. When Detective Flores arrived at defendant's address, he peered into the house through the front window using a flashlight. He communicated a description of the room and the items he observed to the officers in Bay City. Detective Flores' observations were subsequently used to obtain a search warrant for defendant's house, from which approximately fifteen pounds of marijuana were seized.

Defendant was subsequently charged with delivery and manufacture of five to forty-five kilograms of marijuana, maintaining premises for the use or sale of controlled substances, and conspiracy to deliver five to forty-five kilograms of marijuana. The district court dismissed the charges, finding that the patdown search of defendant was illegal because Officer Greenleaf was admittedly not in fear for his safety at the time of the search and he searched defendant for weapons and drugs. The circuit court affirmed the district court's ruling, finding that, under the totality of the circumstances, the district court's findings were not clearly erroneous. The instant appeal ensued.

II. Standard of Review

A lower court's factual findings in a suppression hearing are reviewed for clear error and will be affirmed unless the reviewing court has a definite and firm conviction that a mistake has been made. People v. Burrell, 417 Mich. 439, 448, 339 N.W.2d 403 (1983); People v. Lombardo, 216 Mich.App. 500, 504, 549 N.W.2d 596 (1996). The lower court's ultimate ruling with regard to the motion to suppress is reviewed de novo. People v. Garvin, 235 Mich.App. 90, 96, 597 N.W.2d 194 (1999).

III. Analysis

In this case, we are asked to decide whether a patdown search performed on defendant incident to an investigatory stop, and a search of items seized from defendant during the patdown search, were invalid under the Fourth Amendment of the United States Constitution and its counterpart in the Michigan Constitution, which guarantee the right of persons to be secure against unreasonable searches and seizures. U.S. Const., Am. IV; Const. 1963, art. 1, § 11. We conclude that the patdown search of defendant was proper, but the subsequent search of the incriminating photographs that formed the basis of the search warrant for defendant's residence was constitutionally infirm.

A. Patdown Search of Defendant

Initially, we note that there is no question that the investigative stop in this case was proper. Officer Greenleaf was investigating a complaint regarding "unwanted subjects" in the area. When Officer Greenleaf arrived at the scene, he observed defendant and Holder in a vehicle and briefly questioned them about their presence in the area. A brief, on-the-scene detention of an individual in a public place for the purpose of determining whether a crime has been committed is not a violation of the Fourth Amendment as long as the officer can articulate a reasonable suspicion for the detention. Michigan v. Summers, 452 U.S. 692, 700, n. 12, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); People v. Shabaz, 424 Mich. 42, 56-57, 378 N.W.2d 451 (1985).

Further, an officer who makes a valid investigatory stop may perform a limited patdown search for weapons if the officer has a reasonable suspicion that the individual stopped for questioning is armed and thus poses a danger to the officer. Terry, supra; People v. Champion, 452 Mich. 92, 99, 549 N.W.2d 849 (1996). To demonstrate reasonable suspicion, an officer must articulate specific facts that, taken together with rational inferences drawn from those facts, warrant the intrusion. Terry, supra. Patdown searches are reasonably designed to discover weapons or other instruments that might injure an officer. Champion, supra.

However, in conducting a patdown search, an officer may also seize items that the officer has probable cause to believe feel like contraband. Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Champion, supra at 105, 549 N.W.2d 849.

In this case, Officer Greenleaf determined that defendant and Holder were the subjects of a complaint lodged by a female who was followed home from a bar by two men. He asked Holder, who appeared intoxicated, to get out of his vehicle. Officer Greenleaf immediately confirmed from the odor on Holder's breath, his bloodshot eyes, and his unsteady gait, that he was intoxicated. Holder was presented with two options—have his vehicle towed to a local facility or back to his home in Mt. Pleasant at his own expense. Holder elected to have his vehicle towed to his home. When asked to demonstrate that he had sufficient funds to pay the fee for the towing service, Holder removed from his pocket approximately $500 in $10 to $20 bills as well as a small, clear plastic bag containing what appeared to be marijuana. At this point, Officer Greenleaf had probable cause to believe that Holder had committed an offense, and Holder was appropriately arrested, searched, handcuffed, and placed in the patrol car. Officer Greenleaf then turned his attention to defendant, who...

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4 cases
  • People v. Davis
    • United States
    • Court of Appeal of Michigan (US)
    • June 14, 2002
    ...and those findings will be affirmed unless we are left with a definite and firm conviction that a mistake was made. People v. Custer, 242 Mich.App. 59, 64, 618 N.W.2d 75 (2000), rev'd in part on other grounds 465 Mich. 319, 630 N.W.2d 870 (2001). See also People v. Burrell, 417 Mich. 439, 4......
  • People v. Custer, Docket No. 117390, Calendar No. 10.
    • United States
    • Supreme Court of Michigan
    • July 30, 2001
    ...The circuit court then affirmed the decision of the district court, and the Court of Appeals affirmed the decision of the circuit court. 242 Mich.App. 59, 618 N.W.2d 75 (2000). However, the Court of Appeals concluded that the patdown search of defendant had been legal, but that the officer ......
  • People v. Lewis, Docket No. 231954.
    • United States
    • Court of Appeal of Michigan (US)
    • August 8, 2002
    ...and firm conviction that a mistake was made. People v. Davis, 250 Mich.App. 357, 362, 649 N.W.2d 94 (2002), citing People v. Custer, 242 Mich.App. 59, 64, 618 N.W.2d 75 (2000), rev'd in part on other grounds 465 Mich. 319, 630 N.W.2d 870 (2001). See also People v. Burrell, 417 Mich. 439, 44......
  • People v. Custer, Docket No. 218817.
    • United States
    • Court of Appeal of Michigan (US)
    • February 25, 2002
    ...order affirming the district court's order suppressing evidence against defendant and dismissing the case. People v. Custer, 242 Mich.App. 59, 73-74, 618 N.W.2d 75 (2000) (Custer F). The Supreme Court reversed the judgment of our Court and remanded to us for purposes of deciding, in light o......

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