People v. Edwards, Docket No. 28402

• Decision Date: 03 February 1977
• Docket Number: Docket No. 28402
• Citation: 73 Mich.App. 579,252 N.W.2d 522
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. George Henry EDWARDS, Defendant-Appellee. 73 Mich.App. 579, 252 N.W.2d 522
• Court: Court of Appeal of Michigan — District of US

Page 522

252 N.W.2d 522

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. George Henry EDWARDS, Defendant-Appellee.

Docket No. 28402.

73 Mich.App. 579, 252 N.W.2d 522

Court of Appeals of Michigan.

Feb. 3, 1977.

Released for Publication April 27, 1977.

[73 MICHAPP 580] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Appellate Chief, Asst. Pros. Atty., for plaintiff-appellant.

Martin F. Palus, Flint, for defendant-appellee.

Before DANHOF, C. J., and KELLY and D. E. HOLBROOK, Jr., JJ.

DANHOF, Chief Judge.

The prosecutor appeals from the trial court's order granting defendant's motion to suppress from use in evidence a packet of heroin seized by police officers after they stopped defendant's automobile to issue a traffic ticket.

Although the facts of this case are somewhat involved, the undisputed sequence of events was as follows: Officer Perry was conducting surveillance of Clyde Edwards' house. He was in an unmarked car and wore an outer garment to conceal his uniform. Clyde Edwards' house was being kept under surveillance based on anonymous tips of "illegal activities" and Clyde Edwards' suspected involvement in a burglary that had occurred some months earlier. Officer Perry had information that led him to believe that Clyde Edwards' Thunderbird automobile had been used in the commission of the burglary, and he had learned that there was a warrant outstanding for Clyde Edwards' arrest on a traffic charge. Officer Perry observed two men, whose identities he did not know, exit Clyde Edwards' house and enter the Thunderbird. It is [73 MICHAPP 581] not clear whether Officer Perry knew that neither of the men was Clyde Edwards. Officer Perry testified that he did not approach the two men to execute the outstanding warrant for Clyde Edwards' arrest because the neighborhood was bad and because he feared that violence might ensue if he approached the men in his unmarked car.

After verifying that the warrant for Clyde Edwards arrest was still outstanding, Officer Perry radioed for a marked car to intercept the Thunderbird. Officer Gilbert, in the marked car, heard over the radio that there was an outstanding warrant for Clyde Edwards' arrest, but testified that he determined to stop the Thunderbird only if he observed a traffic violation. Officer Gilbert also testified that he would not have begun to follow the Thunderbird had he known Clyde Edwards was not in it. In fact, the car was occupied by defendant George Edwards, Clyde Edwards' brother, and a male passenger.

After following the Thunderbird for some distance, Officer Gilbert observed it negotiate an unsignaled left turn and turned on his cruiser's flasher. While following the subject vehicle through the turn, Officer Gilbert observed the passenger raising an unidentified can to his lips. While his partner approached the Thunderbird on the driver's side to issue a ticket, Officer Gilbert approached the passenger side, where his flashlight revealed that the passenger was holding an open beer can. The passenger stepped out of the Thunderbird at Officer Gilbert's request, bringing the can with him. After the passenger got out, Officer Gilbert placed the can atop the Thunderbird, informed the passenger that he was under arrest for consuming alcoholic beverages on a public highway, and placed the passenger in the [73 MICHAPP 582] back of his cruiser. While the passenger was climbing out of the Thunderbird Officer Perry's flashlight revealed a clear plastic bag containing a blackish-brown granulated substance protruding from under a pillow on which defendant was sitting. The substance proved to be heroin.

The trial judge did not believe the reasons offered by Officer Perry for not approaching the two men before they entered the Thunderbird; he was "convinced" that "he (Perry) didn't want that car stopped. What he really wanted was a search". The trial judge thought that Perry ordered Gilbert to follow the car until he observed some basis for effecting an arrest so that a search could be conducted incident thereto. Absent some indication that Clyde Edwards was in the car, the trial judge thought that the existence of a warrant for his arrest could not serve as a basis for justifying the stop under the reasonableness test for the stop and search of moving vehicles set out in People v. Lillis, 64 Mich.App. 64, 68, 235 N.W.2d 65 (1975). He concluded that "this is a case where the tail was wagging the dog", because the officers had no information that Clyde Edwards was in the car. The trial judge also thought that Officer Gilbert's observing the passenger drink from an unidentified can could not support the stop. What "most impressed" the trial judge, however, was that Perry had ordered the Thunderbird stopped before any traffic violation was observed: "He said that before the car had been involved in any traffic violation at all. And that doesn't seem justifiable to me". Finally, the trial judge thought that "the pretense of stopping the vehicle based upon viewing of a traffic violation, where information had already been received that that vehicle should be stopped, I think violates the spirit of the protection"[73 MICHAPP 583] against unreasonable search and seizure. The trial judge explained that this was so because the normal sequence ("legitimate" arrest followed by search) was not present here: "I think this is in reverse order".

It should be noted at the outset that the trial judge did not find that Officer Gilbert did not see the moving violation; indeed, he appears to have assumed for the purpose of his ruling that the violation did occur. Nor did he find that the beer can, and then the plastic bag containing the heroin, were not in plain view. The trial judge also found Officer Perry's use of his flashlight to look into the car unobjectionable, and properly so; mere use of a flashlight does not constitute a search when the objects revealed would be visible in ordinary daylight, and the plain view rule applies in either case. People v. Whalen, 390 Mich. 672, 679, 213 N.W.2d 116 (1973), People v. Kuntze, 371 Mich. 419, 124 N.W.2d 269 (1963). In effect, then, the trial judge held that because Officers Perry and Gilbert had other, albeit arguably insufficient, reasons for stopping the car (the possible execution of the arrest warrant, an unconfirmed suspicion that the passenger was drinking beer, and, inferentially, a suspicion that the car contained contraband), Gilbert was obliged to ignore the traffic violation he witnessed. But cf. People v. Lillis, supra, at 64 Mich.App. 70-71, 235 N.W.2d 65, quoting Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Thus a moving violation that would ordinarily have been a proper basis for a stop and the issuance of a traffic ticket (and routine investigation of driver's license and registration) had to be overlooked because the officers had other reasons for wanting to stop the car.

Had a warrantless search been conducted incident[73 MICHAPP 584] to the arrest for the traffic violation that resulted in discovery of contraband not in plain view, the trial judge would undoubtedly have been correct in granting the motion to...