People v. Garcia

• Decision Date: 07 February 1978
• Docket Number: Docket No. 28413
• Citation: 265 N.W.2d 115,81 Mich.App. 260
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jose A. GARCIA, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 115

265 N.W.2d 115

81 Mich.App. 260

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jose A. GARCIA, Defendant-Appellant.

Docket No. 28413.

Court of Appeals of Michigan.

Feb. 7, 1978.

Rehearing Denied March 8, 1978.

Released for Publication April 26, 1978.

Doherty & Thomas by James C. Thomas, Royal Oak, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., for plaintiff-appellee.

Before RILEY, P. J., and J. H. GILLIS and MAHER, JJ.

PER CURIAM.

Following a jury trial, defendant Jose Garcia appeals his conviction of possessing the controlled substance cocaine, M.C.L.A. § 335.341(4)(b); M.S.A. § 18.1070(41)(4)(b), carrying a weapon in an automobile, M.C.L.A. § 750.227; M.S.A. § 28.424, extortion, M.C.L.A. § 750.213; M.S.A. § 28.410, and subornation of perjury, M.C.L.A. § 750.424; M.S.A. § 28.666.

I.

On September 25, 1974, at approximately 6 a. m., Officer Jessie Ibanez, patrolling alone in the city of Buena Vista, observed the driver of a 1973 Pontiac make an improper left turn. Officer Ibanez followed the Pontiac and signaled the driver to pull over. The driver (later identified as defendant) came to a stop in an adjacent K-Mart parking lot. The sole passenger, Marcos Martinez, remained in the Pontiac.

Emerging from his car, defendant met the officer between the two vehicles. The officer advised defendant of the reason for the stop (viz., an improper left turn and failure to signal for a left turn) and asked him for his operator's license. Defendant responded that he had no license in his possession. ¹ Officer Ibanez directed defendant to the police car, informed him that he "would have to go with" the officer and instructed him to place his hands on the patrol car. The policeman then began to pat defendant down "because he was going to jail". The officer testified at trial that he was searching defendant for weapons and not contraband. In the course of this search, the officer felt an object in an inner pocket of defendant's jacket, an "object which I thought was a file or something * * * (because) when I pressed it, it maintained its shape". This testimony conflicted with the officer's account at the preliminary examination:

"Q. (Defense attorney ) (D)id it feel like a knife to you?

"A. (Officer Ibanez ) No, sir.

"Q. Did it feel like a weapon of any kind to you?

"A. It felt like something that wouldn't retain its a . . . it kept retaining its shape, when I squeezed it.

"Q. But not like a weapon?

"A. No, sir."

Apprised of the conflict by defense counsel, Officer Ibanez acknowledged his prior testimony, including the statement that the object did not feel like a weapon. Defense counsel then asked:

"Q. Now you said you knew it was a file?

"A. (Officer Ibanez ) No, sir, I didn't say it was a file. I said it could have been a file; could be anything.

"Q. Could be anything. Could be a piece of paper.

"A. Could also be a piece of tinfoil."

The record discloses that the unresilient object turned out to be a tinfoil packet containing cocaine. A more thorough search of defendant's pockets yielded another tinfoil packet of cocaine. At this, Officer Ibanez placed defendant in the back seat of the patrol car, radioed for back-up support, and, on the arrival of Officer Richard Schaefer, approached the passenger, Martinez. At Officer Ibanez's request, Martinez stepped from the car.

"Q. (Defense attorney ) Why did you ask him to step out of the vehicle?

"A. (Officer Ibanez ) I wanted to see I had reason to believe possibly there was some more in the car, possibly more narcotics, more narcotics there could be more.

"Q. Then what did you do, after he got out of the car? Did you proceed to search him?

"A. No, I asked him for I.D. He said he didn't have none. Then I asked him to when I was asking him to turn around, I put my hand on his back pocket. So he had a wallet. I took it out. He had I.D."

Officer Ibanez then searched Martinez more thoroughly, discovering in the process seven .45-caliber bullets. The officer then led Martinez to the cruiser and told him to sit in the back seat. Next Officer Ibanez removed defendant from the back seat, placed handcuffs on him and directed him to sit beside Martinez. With Officer Schaefer standing by, Officer Ibanez searched the front seat of the Pontiac but found nothing. A second search, conducted by both officers, again produced nothing. At this point, Officer Ibanez returned to the cruiser and talked to Martinez, telling him that if a gun were found in the car he (Martinez) would go to jail. Officer Ibanez also told Martinez that if he cooperated the police would give him a break. Martinez then stated that there was a gun in the car, allegedly without specifying its precise location, but added that it was not his. Officer Ibanez then released Martinez and permitted him to walk away. A third and final search disclosed a .45-caliber gun between the driver's bucket seat and the console. ²

In addition to the foregoing testimony, Officer Ibanez related several instances, subsequent to the discovery of the cocaine, in which defendant uttered threats against the officer and his family; the defendant, according to Officer Ibanez, also urged the officer to testify untruthfully in court. These alleged statements by defendant ultimately led to the extortion and subornation of perjury charges.

II.

In a pre-trial motion, a motion for directed verdict and on appeal to this Court, defendant has consistently urged suppression of the cocaine, the gun "and all testimony of appellant's threats and bribes" as the poisonous fruit of an illegal search. Specifically, defendant contends (1) that, under Michigan law, the full search of defendant's person incident to an arrest for a traffic offense exceeded the permissible limits of a protective pat-down search; (2) that, under the interim bail statute, M.C.L.A. § 780.581; M.S.A. § 28.872(1), as interpreted in People v. Dixon, 392 Mich. 691, 222 N.W.2d 749 (1974), the instant personal search contravened defendant's right to post bail prior to being subjected to any custodial search or seizure; and (3) the automobile search, conducted after defendant had been taken into custody, was unjustified since it could not have yielded fruits of a traffic violation.

A.

Defendant concedes that as a matter of Federal constitutional law the search of his person did not offend the Fourth Amendment. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). ³ Instead, defendant urges us to hold the instant searches, precipitated by a concededly valid traffic arrest, unreasonable under state law.

Undoubtedly, "a State is free as a matter of its own law to impose greater restrictions on police activity than those * * * (the United States Supreme) Court holds to be necessary upon federal constitutional standards. See, e. g., Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967); Sibron v. New York, 392 U.S. 40, 60-61, 88 S.Ct . 1889, 1901-1902, 20 L.Ed.2d 917 (1968). See also State v. Kaluna, 55 Haw. 361, 368-369, 520 P.2d 51, 58-59 (1974)." Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975). And, to be sure, a number of cases have declined to apply Robinson and Gustafson, supra, in interpreting their law. See Zehrung v. State, 569 P.2d 189 (Alaska, 1977); People v. Brisendine, 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099 (1975); People v. Clyne, Colo., 541 P.2d 71 (1975); State v. Kaluna, supra.

The Michigan Supreme Court, although having had occasions to comment on Robinson and Gustafson, supra, has never expressly ruled that these Federal cases apply in the factual setting now before us. Cf., People v. Stergowski, 391 Mich. 714, 724-726, 219 N.W.2d 68 (1974); People v. Moore 391 Mich. 426, 432-435, 216 N.W.2d 770 (1974), and People v. Dixon, supra, 392 Mich. at 706-707, 222 N.W.2d 749.

In Stergowski, our Supreme Court affirmed the denial of defendant's motion to quash or suppress evidence of heroin found in a search of defendant's person. Defendant Stergowski had been lawfully arrested for assaulting a police officer. The arresting officer noticed " 'a large bulge in * * * (defendant's) right pocket' ". 391 Mich. at 716, 219 N.W.2d at 70. Feeling the bulge, the officer noted that " 'it appeared to have some bullets in there' ". 391 Mich. at 716, 219 N.W.2d at 70. He emptied the pocket of its contents:

" 'a large quantity of money, some of it being counterfeit, and four bullets for a 9 millimeter gun and some heroin and a plastic vial, and inside the plastic vial there was 11 tinfoil packs (later found to contain heroin).' " 391 Mich. at 716, 219 N.W.2d at 70.

Although noting the holdings in Robinson and Gustafson, supra, the Michigan Supreme Court ultimately ruled:

"It is unquestioned that defendant was subject to a warrantless search incident to * * * (a) lawful arrest. In People v. Tisi, 384 Mich. 214, 180 N.W.2d 801 (1970), the Court said at p. 219 (180 N.W.2d 801):

" 'The reasonableness of any search or seizure must be determined as of the time of the search or seizure. In the determination of reasonableness, consideration may be given to the information possessed by the officer. People v. Harper (1962), 365 Mich. 494 (113 N.W.2d 808).'

"The search is to be tested 'in light of the information or facts possessed by the officer at the time he made the search'. People v. Danny Williams, 383 Mich. 549, 556, 177 N.W.2d 151 (1970).

"The police had received a report of an individual firing 'shots'. They saw defendant carrying what looked to be and was a pistol and ordered defendant to drop the gun. Defendant refused to drop the weapon when ordered and fled from the officers. The officers properly followed him into a house where he tried to hide the weapon but was disarmed. Defendant struck an officer with a metal box. Defenda...