People v. Martinez

• Citation: 187 Mich.App. 160,466 N.W.2d 380
• Decision Date: 22 January 1991
• Docket Number: Docket No. 114122
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gilbert MARTINEZ, a/k/a Roy Sotto Puente, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 380

466 N.W.2d 380

187 Mich.App. 160

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gilbert MARTINEZ, a/k/a Roy Sotto Puente, Defendant-Appellant.

Docket No. 114122.

Court of Appeals of Michigan.

Submitted Sept. 13, 1990, at Grand Rapids.

Decided Jan. 22, 1991, at 10:00 a.m.

Released for Publication March 25, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Dennis M. Wiley, Pros. Atty., and Margaret A. Penninger, Asst. Pros. Atty., for the People.

State Appellate Defender by Kim Robert Fawcett, and Gilbert Martinez, in pro per.

Before WEAVER, P.J., and SAWYER and NEFF, JJ.

SAWYER, Judge.

Defendant pled guilty of one count of possession of more than 50 grams, but less than 225 grams, of cocaine,

M.C.L. Sec. 333.7401(2)(a)(iii); M.S.A. Sec. 14.15(7401)(2)(a)(iii), and was sentenced to serve a term of thirteen to twenty years in prison. He now appeals and we affirm.

Defendant's guilty plea was conditioned upon the right to raise on appeal the issue whether the search which disclosed the controlled substance was valid. The issue whether the search was lawful represents defendant's sole issue on appeal. For the reasons to be discussed below, we conclude that the trial court did not err in not suppressing the evidence pursuant to the Fourth Amendment of the United States Constitution.

On the afternoon of October 27, 1987, Harry Lenardson, Chief of Police of the City of Bridgman, was patrolling I-94 in Berrien County when he observed a white pickup truck travelling westbound at a high rate of speed, emitting excessive smoke. Chief Lenardson then activated his overhead lights and pulled the pickup over. It is not disputed that this was a valid traffic stop. Chief Lenardson testified at the preliminary examination that his original intent was to issue a citation for the excessive smoke and to give a warning concerning the speed.

Chief Lenardson approached the vehicle and requested the driver, Victor Rodriquez, to produce his driver's license. Rodriquez informed Chief Lenardson that he did not have his driver's license with him and, in response to the chief's inquiry whether he had any kind of identification, produced various documents, apparently including a proof of insurance. At this point, Chief Lenardson requested Rodriquez to get out of the vehicle and accompany him back to the squad car. According to Chief Lenardson, at that point he had not yet made a decision regarding whether he was going to arrest Rodriquez for having no operator's license in his possession or merely issue a citation and release him. Apparently, the chief intended to further investigate the matter before reaching a decision.

While Chief Lenardson was in his squad car, with Rodriquez seated next to him in the front seat, Berrien County Deputy Sheriff Jamie Lenardson arrived at the scene. ¹ Chief Lenardson asked Deputy Lenardson to go to the pickup truck and ask the passenger to identify himself. Meanwhile, Chief Lenardson called the dispatcher and requested a check to determine if Rodriquez had a driver's license. ² While Chief Lenardson was waiting for a response to the radio call, he heard his son shout to him, "they have got a gun," and he saw his son draw his service revolver out and point it at defendant. Chief Lenardson then left his vehicle and went around and pulled Rodriquez out of the squad car, patted him down, handcuffed him, and placed him in the back seat of the squad car. Chief Lenardson observed Deputy Lenardson handcuff defendant and put him in the rear of the deputy's squad car.

Deputy Lenardson testified that he approached the passenger side of the truck to obtain defendant's identification pursuant to Chief Lenardson's request. The deputy asked defendant, who later identified himself as Gilbert Martinez, for identification, and defendant indicated that he did not have any. At this point, Deputy Lenardson requested defendant to step from the vehicle, which defendant did. Defendant apparently indicated to Deputy Lenardson that he did not have any identification because he had lost his wallet. Deputy Lenardson testified that he requested defendant to get out of the vehicle for the deputy's own safety and that it was his standard practice in every traffic stop to have the individuals involved get out of the vehicle. After defendant got out of the vehicle, Deputy Lenardson looked inside the vehicle and saw a green leather bag lying on the passenger side floorboard.

According to Deputy Lenardson, the bag was partially open, and from his position he could see a plastic baggie tightly wrapped around what appeared to be a handgun. The deputy then reached inside the vehicle and into the bag and felt the handgun inside the plastic baggie. At this point, Deputy Lenardson yelled to Chief Lenardson that he had found a gun, drew his service revolver, and placed defendant against the side of the pickup truck. Deputy Lenardson then patted down defendant and asked him whether he had a permit for the weapon, to which defendant replied that he did not. Deputy Lenardson then handcuffed him and started to walk him back to the patrol car. While walking to the patrol car, he asked Rodriquez whether he had a permit for the weapon, and Rodriquez responded that he did not.

After defendant was placed in the rear of Deputy Lenardson's vehicle, and Rodriquez was secured in the rear of Chief Lenardson's vehicle, both officers returned to the pickup truck to conduct a further search. Deputy Lenardson indicated to Chief Lenardson that, in addition to finding the handgun, he had observed four packets containing large sums of money. ³ Deputy Lenardson again returned to the passenger compartment of the vehicle and to the green leather bag and confirmed the presence of the handgun and the money. Meanwhile, Chief Lenardson went to the open bed of the pickup truck and searched a garment bag, which was in the bed of the pickup truck near the tailgate and apparently closed. Inside the garment bag, Chief Lenardson found approximately one pound of cocaine. The officers then returned to their vehicles and informed Rodriquez and Martinez that, in addition to being under arrest for carrying a concealed weapon, they also were under arrest for possession of narcotics. It also should be noted that the weapon seized, a nine-millimeter Walther PPK-S semiautomatic pistol, was unloaded, and apparently no ammunition for the weapon was ever recovered.

On appeal, defendant argues that the search without a warrant which yielded the cocaine was unlawful and that the trial court erred in failing to suppress the evidence. Specifically, defendant argues that Deputy Lenardson was without authority to request defendant to get out of the vehicle and, therefore, never should have been in a position to observe the handgun and that, in any event, the subsequent search without a warrant of the garment bag in the bed of the truck, which yielded the cocaine, was unlawful, even if the officers' conduct up to that point was authorized. We disagree.

The first question to be answered is whether Deputy Lenardson was authorized to request defendant, as a passenger in the vehicle, to step out of the vehicle. This appears to pose a question of first impression in Michigan, though the United States Supreme Court has addressed the question whether an officer during a routine traffic stop may ask a driver to step from a vehicle. ⁴ In Pennsylvania v. Mimms, 434 U.S. 106, 110-111, 98 S.Ct. 330, 333-334, 54 L.Ed.2d 331 (1977), the Supreme Court held that a police officer may request a driver during a routine traffic stop to step from the vehicle and off to the shoulder of the road:

We think it too plain for argument that the State's proffered justification--the safety of the officer--is both legitimate and weighty. "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." Terry v. Ohio, [392 U.S. 1, 23, 88 S.Ct. 1868 [1881], 20 L.Ed.2d 889 (1968) ]. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. "According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings--A Tactical Evaluation, 54 J Crim L C & P S 93 (1963)." Adams v. Williams, 407 U.S. 143, 148, n. 3 [92 S.Ct. 1921, 1924, n. 3, 32 L.Ed.2d 612 (1972) ]. We are aware that not all these assaults occur when issuing traffic summons [sic], but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U.S. 218, 234 [94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973) ]. Indeed, it appears "that a significant percentage of murders of police officers occurs when the officers are making traffic stops." Id. at 234, n. 5, 94 S.Ct. at 476 n. 5.

The hazard of accidental injury from passing traffic to an officer standing on the driver's side of the vehicle may also be appreciable in some situations. Rather than conversing while standing exposed to moving traffic, the officer prudently may prefer to ask the driver of the vehicle to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with greater safety to both.

While Mimms justifies Chief Lenardson's conduct in asking Rodriquez to step from the vehicle, it does not directly answer the question whether Deputy Lenardson acted properly in asking defendant to step from the vehicle. However, we are persuaded that the reasoning behind Mimms is equally applicable to the passenger of a vehicle as it is to the driver of the vehicle. That is, the Supreme Court in Mimms concluded that an officer was justified in asking the driver to step from a vehicle for the officer's own safety, recognizing that a large number of assaults on officers occur during...