People v. Mungo

• Citation: 792 N.W.2d 763,288 Mich.App. 167
• Decision Date: 13 April 2010
• Docket Number: Docket No. 269250.
• Parties: PEOPLE v. MUNGO (On Remand).
• Court: Court of Appeal of Michigan (US)

288 Mich.App. 167

792 N.W.2d 763

PEOPLE

v.MUNGO (On Remand).

Docket No. 269250.

Court of Appeals of Michigan.

Submitted July 15, 2009, at Lansing.

Decided April 13, 2010, at 9:10 a.m.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.

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

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

ON REMAND

ZAHRA, J.

The prosecution appeals as of right the circuit court's order granting defendant's motion to suppress evidence and quash the information. Previously, this Court reversed the circuit court's order, holding that "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." People v. Mungo, 277 Mich.App. 577, 578, 747 N.W.2d 875 (2008). Following this Court's decision, defendant appealed in our Supreme Court, which held the application for leave to appeal in abeyance pending release of the United States Supreme Court's decision in Arizona v. Gant, 556 U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). On April 21, 2009, the United States Supreme Court issued an opinion in Gant, holding that a vehicle may not besearched "incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle." Id. at ----, 129 S.Ct. at 1714. Consequently, our Supreme Court has vacated this Court's decision in Mungo and remanded for reconsideration in light of Gant. People v. Mungo, 483 Mich. 1091, 792 N.W.2d 686 (2009). On remand, we affirm the circuit court's order suppressing evidence and quashing the information.

I. BASIC FACTS AND PROCEDURE

As stated in this Court's previous opinion:

Washtenaw County Sheriff's Deputy Ryan Stuck lawfully initiated a traffic stop of a car driven by defendant. Mark Dixon was the sole passenger inthe 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. 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 compartmentof 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. [ Mungo, 277 Mich.App. at 578-580, 747 N.W.2d 875.]

II. ANALYSIS

A. STANDARD OF REVIEW

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

B. APPLICATION OF GANT v. ARIZONA

In Gant, 556 U.S. at ----, 129 S.Ct. at 1714-1715, two persons were arrested outside a residence at which narcotics allegedly were sold. These persons were secured in separate police cars. Defendant Gant, who had been at the residence earlier, arrived in his vehicle and was arrested for driving with a suspended license afterhe had left the vehicle and walked some 10 to 12 feet. An additional patrol car arrived, and Gant was locked in the backseat of that car. Two officers searched Gant's car and found a gun and a bag of cocaine. Ultimately, the Arizona Supreme Court held that the search of Gant's car was unreasonable under the Fourth Amendmentof the United States Constitution. Id. at ----, 129 S.Ct. at 1715.

The United Stated Supreme Court revisited in Gant the issue of what circumstances permit a police officer to search the passenger compartment of a vehicle incident to a recent occupant's arrest. Id. at ----, 129 S.Ct. at 1716. The Gant Court began its analysis by noting that, generally, warrantless searches are unreasonable per se under the Fourth Amendment. One exception to this general rule is that a search may be permissible if it is incident to a lawful arrest. That exception "derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations." Id. A search incident to an arrest may include only the person of the arrestee and the area within the immediate control of the arrestee, i.e., the area from which the arrestee might gain a weapon or evidence that could be destroyed. Id., citing Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The Gant Court explained that in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court considered the application of the Chimel rule in the context of a vehicle search. It held that "when an officer lawfully arrests 'the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile' and any containers therein." Gant, 556 U.S. at ----, 129 S.Ct. at 1717, quoting Belton, 453 U.S. at 460, 101 S.Ct. 2860.

The Supreme Court observed that the decision in Belton " has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search." Gant, 556 U.S. at ----, 129 S.Ct. at 1718. The Court continued:

Under this broad reading of Belton, a vehicle search would be authorized incident to every arrest of a recent occupant notwithstanding that in most cases the vehicle's passenger compartment will not be within the arrestee's reach at the time of the search. To read Belton as authorizing a vehicle search incident to every recent occupant's arrest would thus untether the rule from the justifications underlying the Chimel exception—a result clearly incompatible with our statement in Belton that it "in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests." 453 U.S. at 460, n. 3, 101 S.Ct. 2860. Accordingly, we reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.

Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Thornton [ v. United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) ] (Scalia, J., concurring in judgment). In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. See, e.g., Atwater v. Lago Vista, 532 U.S. 318, 324 [121 S.Ct. 1536, 149 L.Ed.2d 549] (2001); Knowles v. Iowa, 525 U.S. 113, 118 [119 S.Ct. 484, 142 L.Ed.2d 492] (1998). But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicleand any containers therein. [ Gant, 556 U.S. at ----, 129 S.Ct. at 1719.]

The Supreme Court concluded that "[n]either the possibility of access nor the likelihood of discovering offense-related evidence authorized the search in this case." Id. The Court noted that unlike in Belton, in which a single police officer had to deal with four unsecured arrestees, in Gant, five officers were present to deal with three arrestees, all of whom were secured in police vehicles before the search of Gant's car occurred. Thus, Gant could not have reached into the passenger compartment of his vehicle at the time the vehicle was searched. Furthermore, unlike in Thornton, in which the defendant was arrested for a narcotics offense, Gant was arrested for driving with a suspended license. The police could not have expected to find evidence of that offense from a search of...