People v. Grainger

Decision Date07 October 1982
Docket NumberDocket No. 51885
Citation117 Mich.App. 740,324 N.W.2d 762
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Peter Grant GRAINGER, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Chief Appellate Asst. Pros. Atty., Appeals, and Andrea L. Solak, Asst. Pros. Atty., for the People.

Nora J. Pasman, Asst. State Appellate Defender, for defendant-appellant on appeal.

Before DANHOF, C. J., and J. H. GILLIS and BRONSON, JJ.

PER CURIAM.

Defendant was convicted of carrying a concealed weapon contrary to M.C.L. 750.-227; M.S.A. 28.424, at a jury trial held October 6 to 12, 1978, in Wayne County Circuit Court. He was sentenced on November 13, 1978, to two years probation. Defendant appeals by right upon denial of his motion for a new trial.

On April 4, 1978, at approximately 10 p. m., defendant approached the ticket counter of Delta Airlines at Detroit Metropolitan airport. Defendant informed the customer service agent that he had a reservation in the name of David Sims. The agent obtained defendant's ticket, a one-way ticket to Miami, Florida. Defendant paid for the ticket with cash. It was close to boarding time.

While at the ticket counter defendant checked a briefcase which had a warning sticker. The agent asked defendant if the sticker was a restricted article sticker which had to be cleared through air freight, but the defendant replied it was not. The agent read the sticker which stated, "These premises protected by automatic alarm system from Northern Electric". The agent then alerted her supervisor, Bob Tolstyka, that the defendant fit the FAA highjacker profile. Mr. Tolstyka explained to defendant that he fell within the guidelines of federal regulations and that it was required that he check defendant's identity. Defendant could not produce any identification. Mr. Tolstyka then told the defendant that his briefcase would have to be searched. Since the briefcase was small Mr. Tolstyka said it could be put through the x-ray machine at the security checkpoint.

The defendant did not respond in any way but accompanied Mr. Tolstyka to the security checkpoint where Linda Duchesne, a Pinkerton security agent, was operating the machine. The briefcase was passed through the machine. The machine indicated the outline of what appeared to be a gun. Ms. Duchesne pulled the bag out of the machine and went to open it. However, defendant said that it was locked and that he would open it for her. Ms. Duchesne called a police officer over and told him there was a gun in the briefcase. The officer instructed defendant to open the briefcase, and the defendant refused, stating the briefcase was not his but belonged to a friend. Defendant refused to identify himself or the friend to whom the briefcase belonged. The officer x-rayed the bag and saw an outline of a gun. He called the security office and was told to bring the defendant and the briefcase to the office. His supervisor asked the defendant for his name and requested that he open the case. Defendant refused and was placed under arrest. Defendant was read his rights and the briefcase was opened. The briefcase was found to contain a .25-caliber automatic and a wallet with identification in the name of Peter Grant Grainger. The gun was loaded. There was also a gun permit in the briefcase.

Defendant claims that the trial judge erred by denying his motion to suppress the gun seized from his locked, checked luggage because defendant's briefcase was unconstitutionally seized and searched.

The people maintain that the search and seizure were permissible for two reasons: 1) the defendant has no standing because he denied owning the briefcase so he had no reasonable expectation of privacy; and 2) defendant's behavior and statements constituted a voluntary consent to the search of his briefcase.

At the suppression hearing held prior to trial, the trial judge found that the evidence should not be suppressed because the defendant had no expectation of privacy in the briefcase since he twice denied that it was his briefcase. Further, the trial judge found that the defendant impliedly consented to the search because he had an opportunity not to take the flight and not to have the briefcase searched, but instead proceeded to the concourse area where the checkpoint was located. Also, the trial judge stated that, considering the circumstances surrounding the search, he believed that the officer acted reasonably. This Court will not reverse a trial judge's ruling on a suppression motion unless that ruling is found to be clearly erroneous. People v. Young, 89 Mich.App. 753, 282 N.W.2d 211 (1979), lv. den. 407 Mich. 877 (1979); People v. Ulrich, 83 Mich.App. 19, 268 N.W.2d 269 (1978).

In United States v. Henry, 615 F.2d 1223 (CA 9, 1980), the Court stated that an x-ray scan is clearly a search and is therefore subject to the requirements of the Fourth Amendment because the x-ray scan system is used as part of a screening system required by the federal government. In Henry, the defendant attempted to check his briefcase, but because he was wearing an ill-fitting wig and a couple of sets of clothing and appeared to be nervous, he was told that the airline had closed the luggage acceptance for that flight and he would have to take the bag to the gate where it could be loaded as checked luggage. At the security checkpoint, the security agent ran the briefcase through the scanner twice. She asked the defendant to open it, but the defendant stated that he did not have a key to open it. Subsequent events led to the opening of the case. With regard to the first x-ray scan, the Court found that the scan was a reasonable procedure and that the defendant impliedly consented to it. The Court noted that the defendant had not been ordered or compelled to produce the briefcase for the initial scan but was free to take the briefcase and leave the airport or to board without taking or checking the briefcase rather than submit it to the x-ray scan. Further, the Court noted that the initial use of the x-ray scan produced no evidence, although it led to the later discovery of evidence, and the x-ray was used only to determine whether a further physical search was indicated.

Henry is factually distinguishable from the case at bar in that the defendant in Henry physically carried the briefcase to the checkpoint himself. In the case at bar the actual carrying was done by Mr. Tolstyka. Nonetheless, defendant herein made no objection and, after accompanying Mr. Tolstyka to the machine where the briefcase was x-rayed, he offered to open the briefcase for Ms. Duchesne. These facts indicate that the initial x-ray scan was done with defendant's implied consent.

At this point, however, the police officer arrived. The defendant refused to open the briefcase for him, stating that the bag was not his but belonged to a friend of his. The people contend that under these facts the defendant lacks standing to challenge the subsequent search.

The proper test for determining whether a defendant has standing to dispute a search and seizure is whether he has a legitimate expectation of privacy in the searched area. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); People v. Wagner, 104 Mich.App. 169, 304 N.W.2d 517 (1981).

The trial judge did not err in finding that the defendant had no legitimate expectation of privacy in the briefcase. Defendant disclaimed ownership and therefore had abandoned it. In United States v. Canady, 615 F.2d 694 (CA 5, 1980), the defendant attempted to take a suitcase on board the plane with him but was asked at two different security checkpoints if his suitcase could be searched. The defendant consented, but when two cylindrical packages wrapped in tape were found, the defendant denied owning the suitcase. When the packages were opened, heroin was found. The Court found that a defendant has no legitimate expectation of privacy in an abandoned or unclaimed suitcase. The Court based its decision on United States v. Colbert, 474 F.2d 174 (CA 5, 1973) (en banc), and United States v. Anderson, 500 F.2d 1311 (CA 5, 1974).

In Colbert, as the police approached two defendants, the defendants set the briefcases they were carrying on the sidewalk and denied that they owned the briefcases. The defendants began to walk away from the officers, leaving the briefcases on the sidewalk. The Court found that the defendants had abandoned their briefcases and therefore had no standing to challenge the search.

In Anderson, the defendant was arrested in an airport after having checked certain bags. The police recovered the bags, and the defendant claimed ownership of one of the bags, but disclaimed ownership of the other. The bags were searched without a warrant and a pistol and other incriminatory evidence were found in the unclaimed bag. The Court found that the pistol and the other evidence was admissible because the defendant had abandoned the bag. Thus, the defendant had no expectation of privacy and lacked standing to challenge the search of the unclaimed suitcase.

In the present case, Duchesne and the police officer testified that the defendant twice denied that the briefcase was his. The defendant told them that it belonged to a friend. To the contrary, the defendant testified at the suppression hearing that he never claimed that the bag was not his. Presented with this conflicting evidence, the trial judge chose to believe Duchesne and the police officer, finding their testimony more credible than the defendant's. The trial judge is in the best position to judge the credibility of the witnesses. Under these circumstances the trial judge's finding that the defendant had no legitimate expectation of privacy in the briefcase was...

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  • People v. Burton, Docket No. 82216
    • United States
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    ...relied, the defendant may be retried on the second theory which could support a conviction. See, for example, People v. Grainger, 117 Mich.App. 740, 755, 324 N.W.2d 762 (1982). The prosecutor may, upon notification of the trial court before resentencing, request that the court vacate the co......
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