People v. Long

• Decision Date: 14 June 1982
• Docket Number: No. 5,No. 1,Docket No. 64416,5,1
• Citation: 419 Mich. 636,359 N.W.2d 194
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Kerk LONG, Defendant-Appellant. CalendarCalendar419 Mich. 636, 359 N.W.2d 194
• Court: Michigan Supreme Court

Page 194

359 N.W.2d 194

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Kerk LONG, Defendant-Appellant.

Docket No. 64416.

Calendar No. 5.

Calendar No. 1.

419 Mich. 636, 359 N.W.2d 194

Supreme Court of Michigan.

Argued Jan. 6, 1981.

Decided June 14, 1982.

Argued on Remand from the Supreme

Court of the United States

April 3, 1984.

Decided Dec. 3, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Judy A.H. Hughes, Pros. Atty., Leonard J. Malinowski, Asst. Atty. Gen., Pros. Attys. Appellate Service, Lansing, for plaintiff-appellee.

Vlachos, Jerkins & Hurley by Joseph J. Jerkins, James H. Geary, Kalamazoo, for defendant-appellant.

ON REMAND

CAVANAGH, Justice.

In this case, on remand from the United States Supreme Court, we are asked to determine whether the search by the police of the trunk of the vehicle defendant was operating immediately prior to his arrest was permissible. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

I. PROCEDURAL HISTORY

This case needs little introduction. The trial court denied defendant's motions to suppress evidence of marijuana seized from both the passenger compartment and the trunk of a vehicle defendant was operating immediately prior to his arrest. Thereafter, defendant was convicted by a jury of possession of marijuana. M.C.L. Sec. 335.341(4)(d); M.S.A. Sec. 18.1070(41)(4)(d). He was sentenced to two years probation, assessed a fine of $750, and ordered to pay court costs of $300. The Court of Appeals affirmed his conviction, finding: (1) that the marijuana seized from the passenger compartment of the vehicle was properly admitted under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and (2) that the marijuana seized from the trunk of the vehicle was properly admitted as the product of an inventory search under South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). People v. Long, 94 Mich.App. 338, 288 N.W.2d 629 (1979).

In reversing defendant's conviction, we addressed at length only the former issue. Although citing both U.S. Const., Am. IV, and Const. 1963, art. 1, Sec. 11, we merely found that the "warrantless search of the interior of the vehicle * * * violated the constitutional proscription against unreasonable searches and seizures". People v. Long, 413 Mich. 461, 471, 320 N.W.2d 866 (1982). That conclusion was based on our interpretation of Terry, supra, and other federal cases, i.e., "Terry authorized only a limited pat-down search of a person suspected of criminal activity. That case did not authorize the search of an area". 413 Mich. 472 (emphasis in original). As to the search of the trunk, we stated that it

"occurred subsequent to the deputies' decisions to arrest the defendant for possession of marijuana and to impound the car. The defendant's arrest was based on evidence obtained by unlawful police action. We find that the evidence of marijuana found in the trunk was the 'fruit' of that illegality which should have been suppressed. Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963)." 413 Mich. 473, 320 N.W.2d 866.

Subsequently, the United States Supreme Court granted the prosecution's petition for a writ of certiorari, Michigan v. Long, 459 U.S. 904, 103 S.Ct. 205, 74 L.Ed.2d 164 (1982), and reversed the decision of this Court, finding: (1) that our decision did not rest on an adequate and independent state ground, i.e., Const. 1963, art. 1, Sec. 11; Michigan v. Long, 463 U.S. 1032, ----, 103 S.Ct. 3469, 3474-3478, 77 L.Ed.2d 1201, 1212-1216 (1983), ¹ and (2) that the search of the passenger compartment of the vehicle did not violate the federal constitution. 463 U.S. ---- - ----, 103 S.Ct. 3469, 3478-3482, 77 L.Ed.2d 1217-1222. ² Nevertheless, the Supreme Court found a remand to this Court necessary "to determine whether the trunk search was permissible under Opperman, supra, or other decisions of this Court". Michigan v. Long, supra, 463 U.S. 1032, ----, 103 S.Ct. 3469, 3482, 77 L.Ed.2d 1222-1223. ³

On August 24, 1983, pursuant to the Supreme Court's mandate, this Court issued the following order:

"The Court having received the mandate of the Supreme Court of the United States, the Court's order of June 14, 1982, is vacated. The parties are directed to file supplemental briefs in 24 typewritten copies on the question whether the search of the automobile trunk was permissible under South Dakota v Opperman, 428 US 364 [96 S.Ct. 3092, 49 L.Ed.2d 1000] (1976), or the Michigan Constitution. Defendant-appellant's supplemental brief and appendix, if necessary, are to be filed and served not later than October 3, 1983, and plaintiff-appellee's brief shall be filed and served not later than November 7, 1983." 417 Mich. 1145 (1983). ⁴

II. FACTS

Although the facts underlying this case have been summarized by our Court of Appeals, this Court, and the United States Supreme Court, we find our previous rendition to be both accurate and succinct:

"Shortly after midnight on August 25, 1977 while Deputies Howell and Lewis of the Barry County Sheriff's Department were on routine road patrol, they observed a car traveling past them in the opposite direction at an excessive speed. They turned their vehicle around and pursued the speeding vehicle. They saw the vehicle make a left turn, proceed down a side road, then swerve. The vehicle came to a stop with the front of the car in a shallow ditch and the back of the car on the roadway.

"As the deputies approached, the defendant, the only occupant of the car, got out of the car, leaving the driver's side door open, and met the deputies at the rear of the car. Deputy Howell asked the defendant to produce his driver's license. The defendant made no response. The deputy repeated his request, and the defendant produced his license. When asked for his vehicle registration and proof of insurance, the defendant again made no response. When the request was repeated, the defendant began walking toward the open door. At this juncture, Deputy Howell had formed the opinion that the defendant 'appeared to be under the influence of something'.

"The deputies followed the defendant. As they approached the open door, the deputies saw a closed folding Browning knife on the floorboard of the driver's side. ¹ The defendant was told to halt and put his hands on the roof of the car. He did. One deputy picked up the knife while the other deputy conducted a pat-down search of the defendant, which produced no weapons.

"Deputy Howell then shined his flashlight into the front seat of defendant's car to search for other weapons and saw 'something leather' under the armrest. He knelt in the vehicle, lifted the armrest and observed an open leather pouch containing a small plastic bag of what appeared to be marijuana. According to the testimony of the deputies at trial, Mr. Long was standing by the rear of the car under the control of Deputy Lewis during Deputy Howell's search.

"Deputy Howell removed the pouch and showed it to Deputy Lewis. The defendant was arrested for possession of marijuana. The interior of the car was searched for additional contraband, and the glove compartment was searched for the registration certificate. Neither was found.

"The deputies decided to impound the car. Deputy Howell asked the defendant if he had a trunk key. The defendant stated that he had no key. The deputy, noticing that the trunk lock had been punched out, used his pocket knife and reached in and unlatched the latch. Deputy Howell testified as to why he opened the trunk as follows:

" 'Number one, because I already found marijuana, suspected marijuana, in the interior of the car, there may have been more in the trunk. Secondly, I check them for valuables. I do.'

"Upon opening the trunk the deputy found two paper bags, which were split open, containing approximately 75 pounds of marijuana.

"The defendant was handcuffed, placed in the police car and taken to the sheriff's department along with the towed car.

We also note, as did the Court of Appeals, 94 Mich.App. 343, that evidence introduced at trial tended to show that defendant did not own the vehicle in question. Obviously, from such evidence, defendant wanted the jury to draw the inference that he did not know that the vehicle contained contraband.

III. ANALYSIS

The first question for our consideration is whether the search of the vehicle's trunk was a valid inventory search under U.S. Const. Am. IV. We hold that it was not because the police department had no established or standard procedures for conducting inventory searches. ⁵ In this regard, we adopt in pertinent part the concurring opinion of the late Justice Moody written when this case first appeared here:

"[A] different question is presented regarding the marijuana discovered in the trunk of the car. The prosecution limits its argument to the effect that the marijuana discovered in the trunk of the car was validly seized pursuant to a proper inventory search following defendant's arrest and a deputy's decision to impound the subject vehicle. ² Relying upon South Dakota v Opperman, 428 US 364, 96 S Ct 3092, 49 L Ed 2d 1000 (1976), the prosecution contends that '[w]arrantless inventory searches of impounded cars are a proper caretaking function of the police'.

"Yet Opperman and the instant case involve clearly distinguishable fact situations. Accordingly, the reasoning set forth in Opperman does not apply. Therefore, the search of the trunk in the instant case was unreasonable and violated the Fourth Amendment to the United States Constitution.

"In Opperman, defendant's illegally parked car was towed to a city impound lot where a police officer observed a watch on the car's dashboard and other items of personal property located in the passenger area of the car. These items were visible from outside the car. A police officer inventoried the contents of the automobile using a standard inventory form pursuant to...