People v. Parisi

• Decision Date: 23 April 1973
• Docket Number: No. 2,Docket No. 12720,2
• Citation: 46 Mich.App. 322,208 N.W.2d 70
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Anthony PARISI, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 70

208 N.W.2d 70

46 Mich.App. 322

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Anthony PARISI, Defendant-Appellant.

Docket No. 12720.

Court of Appeals of Michigan, Division No. 2.

April 23, 1973.

Released for Publication June 15, 1973.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and HOLBROOK and BASHARA, JJ.

BASHARA, Judge.

Defendant was tried and convicted by a jury of possession of heroin and sentenced to serve from 3 to 10 years in prison.

The following facts, adduced at trial, are relevant to our disposition of defendant's appeal.

Officer Root of the Saline Police Department testified that on October 27, 1969, he was on road patrol. At approximately 3:00 a.m. he observed four or five young people including defendant proceeding west on Michigan Avenue in a 1963 Ford. The officer followed the vehicle for approximately 1 1/2 miles and clocked their speed as being 25 m.p.h., in a 45 m.p.h. zone. There is a midnight curfew in Saline. Officer Root testified that after observing the youthful appearance of the occupants and the slow speed of the vehicle, he thought he should stop it. As the officer approached the car on the driver's side, the driver rolled down his window and Officer Root stated that he immediately detected a strong odor of marijuana coming from the vehicle.

At this point Officer Root returned to his patrol car and requested that Officer Cohoe come to his assistance. Upon Officer Cohoe's arrival, the occupants were ordered out of the vehicle while it was searched. While defendant was standing outside the car, Officer Root saw something clenched in defendant's fist. Officer Root inquired as to what defendant had in his hand and defendant threw the object into a field. The item was immediately retrieved and was later identified as a brown leather packet containing heroin.

Officer Cohoe testified that when he approached the driver's side of the vehicle he smelled the odor of burning marijuana coming from the car.

Defendant's first claim of error is that the police officers had no rational basis for stopping the automobile in which he was riding, and thus the stop and his subsequent arrest were illegal.

The Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), recognized that each and every restraint of a citizen by a police officer does not constitute an arrest. This principle is based upon the policy consideration that the police investigatory process is an indispensable function which necessarily outweighs minor intrusions into a person's right to privacy. People v. Eugene Harris, 43 Mich.App. 531, 204 N.W.2d 549 (1972).

In Adams v. Williams, 407 U.S. 143, 145--146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616--617 (1972), Justice Rehnquist, writing for the majority, explained the Terry decision as follows:

'In Terry this Court recognized that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for the purpose of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' (392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906--907). The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognized that it may be the essence of good police work to adopt an intermediate response. (392 U.S. at 23, 88 S.Ct. at 1881, 20 L.Ed.2d at 907). A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.' (Citations omitted.)

Accordingly, a momentary stop for the purpose of investigating suspicious activity may be proper, depending on the facts which are known to the officer at the time the detention is made. However, this right is not an unlimited right. This right to momentarily detain a citizen may not be used as a subterfuge to enable a police officer to stop an individual to observe the contents contained in the vehicle. This limitation was recognized by our Supreme Court in People v. Roache, 237 Mich. 215, 222, 211 N.W. 742, 744 (1927), wherein it was stated:

'No one will contend that an officer may promiscuously stop automobiles upon the public highway and demand the driver's license merely as a subterfuge to invade the constitutional right of the traveler to be secure against unreasonable search and seizure. Yet that is exactly what was done here. The officer cared nothing about seeing a driver's license, but he says he was suspicious that there was liquor in the car, and almost immediately after stopping the defendant he ordered him out of his car and proceeded to search it for liquor.'

We must apply these principles to the case at bar to determine whether the stopping of the automobile was justified. Officer Root testified that he stopped the vehicle due to the slow speed at which the vehicle was traveling, the youthful appearance of the occupants, and the possibility of a curfew violation. He testified that the occupants appeared to be from 16 to 18 or 'possibly younger'. Saline has a curfew ordinance that establishes a 12 midnight curfew for persons under the age of 16. It must also be noted that the stop in question occurred at 3 a.m. in the rural area of Saline, Michigan.

The Michigan Courts have not been presented with a factual pattern as in the instant case. A California Court dealt with a similiar situation in People v. Anguiano, 198 Cal.App. 426, 429--430, 18 Cal.Rptr. 132, 134 (1961). There, a police officer stopped defendant's automobile due to its slow speed and the youthful appearance of its occupants. The California Court in upholding the validity of the stop stated:

'We think the officer had a sufficient basis on which to stop the Pontiac and question defendant, the driver. Defendant was not arrested at that point; he was merely detained for the purpose and during the time of making reasonable inquiries. Such a detention does not in and of itself amount to an arrest. (Citations omitted.) The existence of facts constituting probable cause to justify an arrest is not a condition precedent to such an investigation.'

All of the facts present in Anguiano are present in the instant case, plus the additional fact that the officer had a reasonable belief that the occupants were in violation of the Saline curfew. A review of the record further convinces this Court that this stop was made on a reasonable belief that this activity required investigation and was not a mere subterfuge to search the vehicle. Therefore, we hold that the stop in the instant case was valid.

Defendant next challenges the validity of his subsequent arrest on the dual grounds that the mere odor of marijuana is not sufficient to establish probable cause; and even if it is sufficient, there was not an adequate showing that the officers were qualified to identify this odor as being burning marijuana.

Our Supreme Court has acknowledged that search warrants based in whole or in part upon conclusions drawn from the sense of smell are...