People v. Harmelin, Docket No. 101536

• Citation: 176 Mich.App. 524,440 N.W.2d 75
• Decision Date: 26 April 1989
• Docket Number: Docket No. 101536
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Allen HARMELIN, Defendant-Appellant. 176 Mich.App. 524, 440 N.W.2d 75
• Court: Court of Appeal of Michigan (US)

Page 75

440 N.W.2d 75

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Allen HARMELIN, Defendant-Appellant.

Docket No. 101536.

176 Mich.App. 524, 440 N.W.2d 75

Court of Appeals of Michigan.

Submitted April 4, 1989.

Decided April 18, 1989.

Released for Publication June 5, 1989.

Application for Leave to Appeal Dismissed

as Moot April 26, 1989.

[176 MICHAPP 526] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., and Daniel J. Garber, Jr., Asst. Pros. Atty., for the people.

Carla J. Johnson by James S. Lawrence, Detroit, for defendant-appellant.

Before WAHLS, P.J., and HOOD and KAUFMAN, ^* JJ.

PER CURIAM.

On March 9, 1989, this Court, on its own motion, vacated its judgment in this case issued on January 9, 1989, and retained the matter for reconsideration. Of concern was the effect of a constitutional provision and its case-law precedent, uncited by the parties, on the issue of the propriety of a police officer's ordering a driver out of his car after having stopped the driver for a traffic violation. Two judges of this panel concluded that the Michigan Constitution's search-and-seizure provision provided greater protection to drivers in such a situation than that available under the analogous provision of the federal constitution. Under the latter, a police officer's order to a driver to get out of his car after the car has been lawfully stopped for a traffic violation does not violate the Fourth Amendment even though the officer had no reason to suspect foul play at the time. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). The third judge of this panel, writing in dissent, concluded that the record did not support the assumption that defendant was ordered out of his car by the police and, on the contrary, suggested that defendant had voluntarily gotten out of his car after having been lawfully stopped for a traffic violation.

[176 MICHAPP 527] On reconsideration, we hold that, even if defendant in this case were ordered out of his car by the police after having been legally stopped for a traffic violation, the narcotics evidence revealed after subsequent searches could not have been suppressed from evidence under the Michigan Constitution's search-and-seizure provision because, under the circumstances in this case, that provision affords defendant with no greater protection than that provided under the analogous federal provision in the Fourth Amendment. Regarding the remaining issues raised by defendant on appeal and not addressed in the January 9, 1989, majority opinion, we adopt the reasoning and conclusions set forth in the dissenting opinion of that date.

The facts in this case were recited in our earlier opinion:

"Defendant, Ronald Allen Harmelin, was convicted after a bench trial of possession of 650 or more grams of a mixture containing cocaine, MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and was sentenced on April 30, 1987, by the Oakland Circuit Court to a mandatory life term of imprisonment for the cocaine conviction and a mandatory two-year term of imprisonment for the felony-firearm conviction. On appeal, defendant argues that his convictions must be reversed because the evidence against him was obtained as a result of an unconstitutional seizure and pat-down search of his person and an unconstitutional search of his car, that his convictions must be reversed because he was deprived of the effective assistance of counsel, and that his sentence for the cocaine conviction must be set aside and a resentencing occur because a mandatory life sentence without the possibility of parole constitutes cruel and unusual punishment....

[176 MICHAPP 528] "The record reveals that in the early morning hours of May 12, 1986, two Oak Park police officers, Calvin Rix and Lawrence Blakeney, were patrolling in a marked police car in the area of the Embassy Motel in the City of Oak Park, and at 2:45 a.m. drove into the motel's parking lot to check for stolen vehicles. Numerous stolen vehicles had been found in this lot in the past. At this time, the officers observed defendant's car leaving the parking lot and, although they were called away on other police business at various times that morning, they saw defendant's car entering the Embassy Motel parking lot at about 4:00 a.m. and again at 5:00 a.m. In the three sightings of defendant's car, the officers noticed nothing unusual or illegal in the manner in which defendant's car was being driven.

"Shortly after 5:00 a.m., while continuing to patrol the area around the Embassy Motel, Officers Rix and Blakeney saw defendant's car make a U-turn at the intersection of Eight Mile and Hubbell Roads, a high-crime area, without stopping for a red light. When the officers, in their patrol car with its overhead lights flashing, pulled behind defendant's vehicle, defendant responded by stopping in a reasonably prompt fashion. Officer Rix walked to the driver's side of defendant's car, while Officer Blakeney positioned himself at the passenger side of the car. Defendant, who remained seated in his car, complied in a cooperative manner upon being requested by Officer Rix to produce a driver's license and vehicle registration. Defendant then stepped out of his car. Neither of the officers could recall whether defendant was ordered out of his vehicle or whether he got out of it on his own initiative, although Officer Rix testified that if he did in fact order defendant out of the car, that order would have been prompted solely by the nervous behavior exhibited by defendant--behavior described as defendant's having 'trouble getting some of the words out.' In any event, after getting out of his car, defendant, in a nervous manner, informed Officer Rix that he was [176 MICHAPP 529] carrying a pistol concealed in an ankle holster. He explained that he had a permit for the weapon, however, and that he did not want the officers to become alarmed. He then handed Officer Rix a general permit to carry a concealed weapon as well as a safety inspection certificate for the .38 caliber, five-shot revolver, which was later found in his ankle holster.

"After looking at the firearm documents proffered by defendant, Officer Rix observed nothing which suggested that the papers were possibly invalid. Nonetheless, because defendant appeared to be nervous, because he was armed, albeit legally, and because he had a bulge in one of his coat pockets, Officer Rix, fearing for his own safety and sensing that '[t]here was something wrong,' decided to conduct a pat-down search of defendant. In doing so, some marijuana was discovered, and defendant was placed under arrest.

"In searching defendant after his arrest, the officers found other incriminating evidence in defendant's possession, including assorted pills and capsules, three vials of white powder, ten baggies of white powder, drug paraphernalia and a telephone beeper. Later, pursuant to the standard policy of the Oak Park Police Department, defendant's car was impounded for a possible forfeiture action, and an inventory search was conducted. During this search, a satchel containing a shaving-kit bag was discovered in the trunk. The kit contained $2900 in cash and two bags of white powder subsequently determined to be 672.5 grams of cocaine. A fingerprint expert testified that defendant's fingerprints were found on books located inside the satchel and next to the bags of cocaine.

"Defendant neither testified in his own behalf nor presented any witnesses."

In our earlier opinion, we recognized that in Mimms, supra, a majority of the United States Supreme Court held that a police officer's order to a driver to get out of his car after the car was [176 MICHAPP 530] lawfully stopped for a traffic violation did not violate the Fourth Amendment even when the officer had no reason to suspect foul play at the time, and that other panels of this Court have cited Mimms with approbation, People v. Laube, 154 Mich.App. 400, 408-410, 397 N.W.2d 325 (1986), lv. den. 428 Mich. 856 (1987); People v. Blackburne, 150 Mich.App. 156, 164-165, 387 N.W.2d 850 (1986), lv. den. 425 Mich. 869 (1986). Nevertheless, we decided in our earlier opinion that, under the Michigan Constitution's search-and-seizure provision, a driver such as defendant in the present case should be afforded more protection from the police than is afforded under the Fourth Amendment's prohibition against unreasonable searches and seizures. In doing so, we followed the dissent of Justice Stevens in Mimms, and thus declared that a police officer, after stopping an automobile for a traffic violation, could not order the driver to get out of the car, and thus protect the driver's detention, unless the test announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), had been fulfilled, i.e., unless the officer had a reasonable, articulable suspicion that the driver committed, or was about to commit, a crime. We opined that maintaining the Terry standard in situations involving traffic stops by police officers would help to ensure that the right to be free from unreasonable seizures would not be wholly eroded in traffic offense cases and, as a corollary, that citizens would not lawfully be vulnerable to unnecessary, intrusive, and intimidating police commands.

On reconsideration, we find that whether Justice Stevens, in his dissent in Mimms, had the better argument on this issue is not controlling because in this case we are obliged to follow the majority [176 MICHAPP 531] decision in Mimms. The search-and-seizure provision in the Michigan Constitution provides:

"The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable...