People v. Hall

• Decision Date: 28 April 1972
• Docket Number: Docket Nos. 11849--11851,No. 3,3
• Citation: 198 N.W.2d 762,40 Mich.App. 329
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael D. HALL et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 762

198 N.W.2d 762

40 Mich.App. 329

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael D. HALL et al., Defendants-Appellees.

Docket Nos. 11849--11851.

Court of Appeals of Michigan, Division No. 3.

April 28, 1972.

Released for Publication July 10, 1972.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William C. Buhl, Pros. Atty., for plaintiff-appellant.

Hall, Street and Leach, in pro. per.

Before T. M. BURNS, P.J., and FITZGERALD and DANHOF, JJ.

FITZGERALD, Judge.

Defendants were charged with unlawful posession of marijuana.* A motion to suppress evidence as to all the defendants was filed on March 5, 1971; a hearing was held on March 8, 1971. Subsequently, the trial court entered an order suppressing the evidence and quashing the informations. The people's appeal from the quashal is here by leave of the Court. The facts leading to this appeal are as follows:

The three defendants were driving in a Chevrolet van westbound on I--94 near Paw Paw, Michigan, at 4 a.m. on the morning of May 23, 1970. State Police officers traveling in the opposite direction noticed that the van had only one headlight. The officers turned around, pursued, and stopped the van. While one of the police officers was talking to the driver, defendant Leach, reference was made to defendant Hall who was lying on a seat in the back of the van. The officer on the driver's side of the van asked his partner on the other side of the van to check the back seat. The officer shined a flashlight in the back seat, observed defendant Hall, and just momentarily saw a clear plastic bag and a clear plastic bottle. Almost simultaneous with that observation, defendant Leach either inadvertently or intentionally dropped or threw a jacket over the plastic bag and bottle. The police then ordered the three defendants out of the car, removed the jacket, and confiscated the plastic bag and bottle. Upon examination, the officers, for the first time, observed that the bag and bottle contained a substance which appeared to them from their previous law enforcement experience to be marijuana.

Defendants were then placed under arrest and were escorted to the police car. One of the officers then returned to the van and searched it, finding more marijuana in a Bufferin bottle and in a wooden box.

Defendants were charged with unlawful possession of marijuana. After preliminary examination on July 14, 1970, they were bound over to circuit court for trial. They were arraigned in the circuit court August 31, 1970. Thereafter, counsel for the three defendants moved to suppress the evidence on the ground that the search of the van and the seizure of the marijuana were unreasonable because not based upon probable cause.

The trial court subsequently granted the defendants' motion to suppress and quashed the informations against him.

The court relied upon People v. Reeves, 23 Mich.App. 183, 178 N.W.2d 115 (1970), in finding that the seizure of the plastic bag and the plastic bottle was merely based on a general suspicion, and that, therefore, such seizure was unreasonable. The court reasoned that the arrests which followed this seizure were unlawful, and that the subsequent search and seizure of the wooden box and the Bufferin bottle would also be illegal. After the prosecuting attorney attempted to distinguish Reeves, the trial court stated his belief that there was no such 'obvious evasionary tactic' that would take this case out of the holding of Reeves.

It was undisputed below that the police officers had lawfully stopped defendants' vehicle because the nonoperative headlight constituted a violation of the motor vehicle code. Further, it was undisputed below that the officer did not see the contents of the plastic bag and bottle when he momentarily observed them in the light of his flashlight. Hence, the question on appeal is narrowed to an inquiry as to whether the driver's furtive gesture of dropping or throwing a jacket over the containers afforded the officers probable cause to search the van.

The issue on appeal can be stated as:

Did the trial court err in finding that the search of the vehicle in which the defendants were traveling and the seizure of evidence containing marijuana were unreasonable?

The people contend that the trial court was in error when it relied on People v. Reeves, Supra, in granting the defendants' motion to suppress the evidence. It is argued that the crucial distinction is that the officers in Reeves at no time were observed by the defendant when he made his actions which were termed merely suspicious. To the contrary, in this case defendant Leach made a voluntary and deliberate motion to conceal the seized objects while he was conscious that he was being observed by a police officer. It is the people's position that this case falls directly within the scope of People v. Evans, 3 Mich.App. 1, 141 N.W.2d 668 (1966), and People v. Lewis, 269 Mich. 382, 257 N.W. 843 (1934).

The defendants have not filed a brief on appeal in this cause.

The officers had no knowledge, perhaps only suspicion, that the plastic bag and bottle might contain marijuana. They had not, before the seizure, observed anything in the containers. Hence, it is fair to say that prior to the time that the jacket was thrown or dropped on the containers, the police had no probable cause to suspect that a crime was being committed or to search the automobile.

A number of cases have considered the furtive gestures or evasive actions of defendants while under police observation as properly considered in determining whether probable cause existed. The principal cases are analyzed in People v. Evans, 3 Mich.App. 1, 141 N.W.2d 668 (1966). After an examination of those cases, Evans concluded (p. 7, 141 N.W.2d p. 670):

'All of these cases seem to be based upon the theory that when a person, upon discovering that he is being observed by the police, takes obviously evasive action, he gives the police reasonable cause to believe that he is committing or has committed a felony or is in the process of committing a misdemeanor, thereby justifying immediate search and seizure.' See, also, People v. Wilson, 27 Mich.App. 171, 183 N.W.2d 368 (1970).

A series of California cases are particularly enlightening as to the basis of the 'evasive action' or 'furtive gesture' doctrine. In People v. Superior Court of Yolo County, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449 (1970), an officer, while chasing a speeding vehicle, observed a passenger bend down and then resume a normal sitting position as the driver pulled over. The driver exited the vehicle and approached the officer. The Court held that the officer lacked probable cause to search the vehicle, and the marijuana observed and seized after the officer opened the door on the passenger side of the vehicle was properly suppressed. The Court cited Grundstrom v. Beto, 273 F.Supp. 912 (N.D.Tex.1967), for the proposition that a search for contraband is reasonable when conducted incident to a traffic violation only when the arresting officer observes some occurrence other than the traffic offense itself which reasonably leads the officer to the belief that the motorist possessed contraband. The Court then went on to discuss the reasoning of those code cases in which probable cause to search a vehicle has been predicated on 'furtive gestures' of an occupant of such a vehicle; the Court said, 3 Cal.3d at pp. 817--818, 91 Cal.Rptr. at p. 735, 478 P.2d at p. 455:

'The theory, of course, is that although the officer does not actually see any contraband from outside the vehicle, he may reasonably infer from the timing and direction of the occupant's movements that the latter is in fact in possession of contraband which he is endeavoring to hide. From the viewpoint of the actor, the theory rests on a sound psychological basis: 'It is a natural impulse on confrontation to hide immediately any contraband' (People v. Jiminez (1956) 143 Cal.App.2d 671, 674, 300 P.2d 68, 70). We can posit that sudden efforts at concealment, like flight from the scene of a crime, may well be expressions of consciousness of guilt. On the other hand, the same motion may in fact have an entirely innocuous purpose: 'It is recognized that a person's reasons for concealment may run the whole spectrum from the most legitimate motives to the most heinous' (People v. Weitzer (1969) 269 Cal.App. 274, 292, 75 Cal.Rptr. 318, 330).

'The difficulty is that from the viewpoint of the Observer, an innocent gesture can often be mistaken for a guilty movement. He must not only perceive the gesture accurately, he must also interpret it in accordance with the actor's true intent. But if words are not infrequently ambiguous, gestures are even more so. Many are wholly nonspecific, and can be assigned a meaning only in their context. Yet the observer may view that context quite otherwise from the actor: not only is his vantage point different, he may even have approached the scene with a preconceived notion--consciously or subconsciously--of what gestures he expected to see and what he expected them to mean. The potential for misunderstanding in such a situation is obvious.

'It is because of this danger that the law requires more than a mere 'furtive gesture' to constitute probable cause to search or to arrest. The United States Supreme Court recently reaffirmed this rule in the case of Sibron v. New York (1968), 392 U.S. 40, 66--67, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (937): 'deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of Mens rea, and When coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.' (Italics added.) That knowledge, of course, may be derived from the usual twin sources of information and observation; stating the rule for California, the Court in People...