People v. Mungo

• Decision Date: 17 January 2008
• Docket Number: Docket No. 269250.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael William MUNGO, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

747 N.W.2d 875

277 Mich.App. 577

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael William MUNGO, Defendant-Appellee.

Docket No. 269250.

Court of Appeals of Michigan.

Submitted August 7, 2007, at Lansing.

Decided January 17, 2008, at 9:00 a.m.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and David A. King, Senior Assistant Prosecuting Attorney, for the people.

The Mungo Law Firm, PLC (by Leonard Mungo), and Ferris & Salter, P.C. (by Don Ferris), Detroit, Ann Arbor, for the defendant.

Before: WHITBECK, C.J., and TALBOT and ZAHRA, JJ.

ZAHRA, J.

The prosecution appeals as of right the circuit court's order granting defendant's motion to suppress evidence and quash the information. The circuit court suppressed evidence of a gun found as a result of a search of defendant's car following a routine traffic stop and the arrest of a passenger in defendant's car. Defendant, who was operating his car when it was stopped by a police officer, was charged with unlawfully carrying a concealed weapon pursuant to MCL 750.227. The issue presented in this case is whether a police officer may search a car incident to a passenger's arrest where before the search there was no probable cause to believe that the car contained contraband or that the driver and owner of the car had engaged in any unlawful activity. We hold that such a search is a constitutionally permissible search incident to a lawful arrest. We reverse and remand for entry of an order denying defendant's motion to suppress evidence of the gun and for reinstatement of the charge.

I. Basic Facts And Procedure

Washtenaw County Sheriff's Deputy Ryan Stuck lawfully initiated a traffic stop of a car driven by defendant. Mark Dixon was the sole passenger in the car. Upon request, defendant produced the vehicle registration and proof of insurance. Deputy Stuck also requested the occupants' driver's licenses and ran Law Enforcement Information Network (LEIN) checks on both Dixon and defendant. Deputy Stuck found that Dixon had two outstanding warrants issued for failing to appear in court to answer traffic-violation charges. Deputy Stuck arrested Dixon, asked his dispatcher to send another officer to assist him, and secured Dixon in the backseat of his squad car. Deputy Stuck directed defendant to step out of his car and conducted a pat-down search.¹ Thereafter, Deputy Stuck searched defendant's car and found an unloaded gun in a case underneath the driver's seat and ammunition in the glove compartment. Deputy Stuck asked defendant to produce a permit to carry a concealed weapon. However, defendant produced only a permit to purchase a firearm. Defendant's LEIN check did not reveal that he had been issued a concealed-weapons permit. Deputy Stuck arrested defendant for unlawfully carrying a concealed weapon.

In the circuit court, defendant moved to quash the information and suppress evidence of the gun. The prosecutor relied on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), to argue that the arrest of any person in a car justifies a search of the passenger compartment of that car. The prosecutor argued that the search that led to the discovery of the gun was constitutionally permissible because Dixon, a passenger in defendant's car, was lawfully arrested. Defendant relied on State v. Bradshaw, 99 S.W.3d 73 (Mo.App., 2003), a case in which a divided panel of the Missouri Court of Appeals distinguished Belton and held that police officers cannot lawfully search a driver's vehicle following the arrest of a passenger where the passenger was safely arrested and there was no reasonable suspicion that the driver possessed unlawful items.

The circuit court distinguished Belton and followed Bradshaw. The circuit court concluded that defendant was not under arrest at the time Deputy Stuck searched his car. The circuit court further concluded that defendant had a protected privacy interest in his car. The circuit court held that there was no probable cause to arrest defendant and, therefore, the search of his car was not constitutionally permissible. This appeal followed.

II. Analysis

The Fourth Amendment of the United States Constitution provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[²]

There are, however, several recognized exceptions to the warrant requirement. One exception is that police officers may conduct a search without a warrant of a person and the area immediately around the person incident to a lawful arrest. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 266, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). However, the exception only allows a search of the area immediately surrounding the person arrested and, thus, does not allow the officer to routinely search "any room other than that in which the arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself." Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

In the motor-vehicle context, the search-incident-to-an-arrest exception permits a search of the interior of a car contemporaneous with the arrest of the car's operator. See Belton, supra. Yet, a vehicle search incident to an arrest does not extend to the trunk. Belton, supra at 461 n. 4, 101 S.Ct. 2860. These restrictions are based on the privacy interests of the person being searched.

The situation presented in this case— where the passenger is arrested and there is no probable cause to believe before a search of the car that the car contains any contraband or that the driver has engaged in illegal activity—requires us to establish a rule of law that will either impinge on a driver's general privacy interest in his or her car or carve out an exception to the search-incident-to-an-arrest rule.

A. Standard of Review

A circuit court's decision to dismiss a charge on legal grounds is reviewed de novo. People v. Owen, 251 Mich.App. 76, 78, 649 N.W.2d 777 (2002). A circuit court's findings of fact are reviewed for clear error. MCR 2.613(C).

B. The Expectation of Privacy in Automobiles

Fourth Amendment jurisprudence establishes that one's reasonable expectation of privacy in a car is substantially reduced compared the expectation of privacy one has in a dwelling or in other personal property, such as a computer or the contents of a safety-deposit box or leased storage space. As this Court recognized in People v. Carter, 250 Mich.App. 510, 517-518, 655 N.W.2d 236 (2002), the United States Supreme Court has consistently held that the government's legitimate need to regulate automobiles greatly diminishes the expectation of privacy in one's automobile. In California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), the Supreme Court observed:

These reduced expectations of privacy derive not from the fact that the area to be searched is in plain view, but from the pervasive regulation of vehicles capable of traveling on the public highways. Cady v. Dombrowski, [413 U.S. 433, 440-441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)]. As we explained in South Dakota v. Opperman, [428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)], an inventory search case:

"Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order." 428 U.S., at 368, 96 S.Ct. 3092.

The public is fully aware that it is accorded less privacy in its automobiles because of this compelling governmental need for regulation.

See, also, Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996).

For this reason, Fourth Amendment jurisprudence recognizes an "automobile exception" that allows searches or seizures without a warrant of automobiles based on probable cause to believe that the vehicle contains contraband. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The two bases justifying this exception are the inherent mobility of vehicles and the pervasive regulation of vehicles, which reduce the expectation of privacy. Carney, supra. The automobile exception does not apply in the instant case because before the search Deputy Stuck did not have probable cause to believe that defendant's vehicle contained contraband. Still, Ross, Carney, Opperman, and Labron all stand for the proposition that Fourth Amendment privacy interests in automobiles are limited, flexible, and subject to contraction, especially where other legitimate governmental interests are implicated.

C. The Bright-Line Rule for Searches Incident to a Lawful Arrest

The Supreme Court of the United States has clearly indicated a preference for a bright-line rule for searches without a warrant and incident to lawful arrests. Considering this preference in light of the limitations on legitimate expectations of privacy in one's automobile, we conclude that automobile searches incident to the arrest of an automobile passenger are constitutionally permissible, even when there is no reason to believe the automobile contains evidence that the driver of the automobile is engaged in illegal activity. Support for our conclusion is found in a review of the caselaw that developed the rule on search incident to an arrest.

In Chimel, supra at 763, 89...