People v. Custer

• Decision Date: 25 February 2002
• Docket Number: Docket No. 218817.
• Citation: 248 Mich. App. 552,640 N.W.2d 576
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Robert CUSTER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

640 N.W.2d 576

248 Mich. App. 552

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Robert CUSTER, Defendant-Appellee.

Docket No. 218817.

Court of Appeals of Michigan.

Submitted August 29, 2001, at Lansing.

Decided December 4, 2001, at 9:25 a.m.

Released for Publication February 25, 2002.

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), Mount Pleasant, for the defendant.

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

ON REMAND

WILDER, J.

This case is before us on remand¹ from the Supreme Court following its review of our previous opinion² in this case. There, we affirmed the circuit court's 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 of its opinion, whether the search of defendant's home was proper. People v. Custer, 465 Mich. 319, 344, 630 N.W.2d 870 (2001) (Custer II). We conclude that because the photographs seized from defendant were properly examined by the arresting officer, id.at 333-335, 630 N.W.2d 870, probable cause existed to search defendant's home. We therefore reverse the decision of the circuit court and remand for further proceedings consistent with this opinion.

I. Facts and Procedural Background

In our previous opinion, we summarized the facts of this case as follows:

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, Holder 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,³ maintaining premises for the use or sale of controlled substances,⁴ and conspiracy to deliver five to forty-five kilograms of marijuana.⁵ 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. [Custer I, supra at 61-64

, 618 N.W.2d 75.]

In addition to these facts, we note that the record establishes that upon arriving at defendant's home, Detective Flores went to the front entrance and knocked on the door to determine if anyone was home and that in reaching the front entrance, Detective Flores did not cross any obstructions, such as a gate or fence, nor did he observe any signs forbidding people from entering the property in order to knock on the front door. It was only after approaching the front door that Detective Flores noticed that the window immediately to the left of the door had its inside blinds pulled up, allowing him to observe what was in the room.⁶

On appeal, we held that even though the investigatory stop, patdown, and removal of the photographs from defendant's pocket were proper, id. at 65, 69, 72, 618 N.W.2d 75

because the plain feel doctrine permitted only the seizure of the items from defendant's pocket without a warrant and did not extend to the subsequent search of the photographs after Officer Greenleaf immediately determined that the items were not contraband, ... we conclude[d] as a matter of law that the search was illegal and the photographs were properly suppressed. [Id. at 74, 618 N.W.2d 75.]

We further concluded that, because the photographs were properly suppressed, the circuit court correctly suppressed the evidence found at defendant's home as "`fruits of the poisonous tree,'" id., and held that "there was insufficient evidence to bind defendant over on the charged offenses." Id. We therefore affirmed the district and circuit courts' orders dismissing the charges against defendant.

The Supreme Court granted the prosecution's application for leave to appeal,⁷ and subsequently a majority of the Supreme Court justices agreed with our determination that the investigatory stop, patdown, and removal of the photographs from defendant's pocket were proper. Custer II, supraat 323, 344, 630 N.W.2d 870 (Markman, J.), 345 (Weaver, J.), 350, 352 (Cavanagh, J.), 373 (Young, J.). A separate majority of the Supreme Court justices also found that the photographs should not have been suppressed. In so holding, the lead opinion stated that

[b]ecause the officer had already lawfully seized the photographs when he turned them over to examine their fronts, and because defendant's reasonable expectation of privacy in the outer surfaces of those photographs had, at the least, been significantly diminished, there was no constitutional "search" for purposes of the Fourth Amendment.

... This is true because once the police lawfully take possession of an object, one's expectation of privacy with respect to that object has "at least partially dissipated...." [People v. Rivard, 59 Mich.App. 530, 533-534, 230 N.W.2d 6 (1975)

.] For these reasons, we conclude that the exterior of an item that is validly seized during a patdown search may be examined without a search warrant, even if the officer subsequently learns that the item is not the contraband the officer initially thought that it was before the seizure.

... Therefore, we conclude that the turning over and examining of the other side of the photographs by the police, under the circumstances of this case, did not deprive defendant of his constitutional rights under the Fourth Amendment of [the] United States Constitution or Const. 1963, art. 1, § 11. [Custer II, supra at 336-338

, 630 N.W.2d 870 (opinion of Markman, J.).]

Justice Weaver concurred, reasoning that if "the initial seizure of the photographs was valid under the plain feel exception, then the subsequent examination of those photographs was also valid." Custer II, supraat 345, 618 N.W.2d 75 citing Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), and People v. Champion, 452 Mich. 92, 105-106, 117, 549 N.W.2d 849 (1996).

On remand we...