People v. Plantefaber, Docket No. 78-2022

• Decision Date: 20 August 1979
• Docket Number: Docket No. 78-2022
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cornelius PLANTEFABER, Defendant-Appellant. 91 Mich.App. 764, 283 N.W.2d 846
• Court: Court of Appeal of Michigan — District of US

Page 846

283 N.W.2d 846

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cornelius PLANTEFABER, Defendant-Appellant.

Docket No. 78-2022.

91 Mich.App. 764, 283 N.W.2d 846

Court of Appeals of Michigan.

Aug. 20, 1979.

Released for Publication Oct. 10, 1979.

[91 MICHAPP 765] Jerkins, Plaszczak & Hurley, by James F. Bauhof, Kalamazoo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. [91 MICHAPP 766] Derengoski, Sol. Gen., James J. Gregart, Pros. Atty., for plaintiff-appellee.

Before WALSH, P. J., and KELLY and OPPLIGER, ^* JJ.

WALSH, Presiding Judge.

Defendant was convicted in a bench trial of possession of marijuana with intent to deliver, M.C.L. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c). He was sentenced to a three-year term of probation and was ordered to pay court costs in the amount of $500.

On July 26, 1973, police officers of the Metropolitan Narcotics Squad in Tucson, Arizona, were conducting a general surveillance at the Tucson International Airport. They were observing persons and baggage at the airport for possible narcotics activity. At 10:45 p. m. defendant was seen entering the airport terminal and running up to the TWA ticket counter after being told that an American Airlines flight he wanted was full. He bought a ticket for a flight to Kalamazoo, Michigan. The flight was scheduled to leave at 11:17 p. m. Defendant checked two suitcases with the airline agent. According to two officers who saw defendant, he fit the "profile" used by narcotics investigators in detection of persons possibly involved in narcotics activity. For example, defendant had arrived at the airport shortly before his departure, he was very nervous and did not let go of his bags until they were checked with the airline. Defendant's age, dress and the apparent [91 MICHAPP 767] heaviness of his bags were also considered material factors. Two other officers were stationed in the lower level baggage area, to which a conveyor belt conveyed luggage which had been checked with the airline. They were in the process of smelling all of the bags and were told to pay particular attention to those of defendant. One of the officers testified that he smelled defendant's suitcases and detected the odors of marijuana and talcum powder, which is commonly used to mask the odor of marijuana. Talcum powder was seen on the outside of one of the suitcases. One suitcase was opened and found to contain 14 bricks of marijuana. One brick was removed and retained by the officers. Another was removed, marked and returned to the suitcase. The suitcase was then closed and sealed. An edge of the other case was pried open; marijuana bricks were seen inside the case. Because of the plane's departure, there wasn't time to open this suitcase. The cases were each replaced on the conveyor belt for loading into the plane.

Lt. Michael Moshier of the Kalamazoo Police Department received a phone call from one of the Arizona officers in the early morning hours of July 27. The Arizona officers gave him a description of defendant and his suitcases and information concerning defendant's arrival. This information was forwarded to Officer Wayne Loney, who went to the Kalamazoo airport and saw defendant disembark from the plane. He watched defendant claim the two suitcases which matched the descriptions relayed to him by Lt. Moshier. Defendant took the bags to a taxicab. As the taxicab drove away from the airport, it was stopped by the police. Defendant was arrested and the suitcases were removed from the taxicab. One of the cases was opened at [91 MICHAPP 768] that time. The other suitcase was opened at the jail to which defendant was taken.

Defendant unsuccessfully moved for suppression of the evidence relating to the contents of his suitcases, claiming that he had been the victim of two unconstitutional searches and seizures. With respect to the police activity in Arizona, the trial court found that defendant had matched the narcotics profile, that experienced officers had detected the odor of marijuana in defendant's suitcases, and that there had not been time for the Arizona officers to obtain a search warrant before the departure of defendant's plane. The court ruled that the existence of probable cause and exigent circumstances had made the warrantless Arizona search and seizure reasonable. We agree.

In determining if the Arizona officers had probable cause to search the suitcases, we must examine the facts, circumstances and information known to them at the time of the search. People v. Rodriguez, 83 Mich.App. 606, 609, 269 N.W.2d 199 (1978).

The Arizona officers had observed defendant and had concluded that he matched a narcotics "profile". The officers were specially trained in narcotics investigation and were experienced in detection of marijuana. They detected the odors of marijuana and talcum powder emanating from the suitcases. As observed by Justice Williams in People v. Hilber, 403 Mich. 312, 333, 269 N.W.2d 159 (1978) (dissenting opinion of Williams, J.), the United States Supreme Court has recognized "the evidentiary quality of odor". See Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

With respect to probable cause, the United States Supreme Court's decision in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), supports the trial court's ruling. In that [91 MICHAPP 769] case the Supreme Court affirmed suppression of evidence because of the absence of the requisite exigency for a warrantless search and seizure. The Court, however, did not disturb the holding of the First Circuit Court of Appeals that there had been probable cause to search the defendants' footlocker. Railroad officials in San Diego had noticed that the footlocker, which they saw being loaded onto a train bound for Boston, was unusually heavy and that it was leaking talcum powder. Because one of the defendants matched a profile used to spot drug traffickers, the officials notified Federal agents in San Diego, who relayed the information to Federal narcotics agents in Boston. When the train arrived in Boston, the footlocker was claimed by the defendants. The Federal agents released a police dog trained to detect marijuana near the footlocker. Without alerting the defendants, the dog signaled the presence of a controlled substance inside the footlocker. We agree with the First Circuit that there was probable cause to search the footlocker. We also see no significant distinction regarding probable cause, between that case and the case at hand.

Defendant's reliance on People v. Hilber, supra, is misplaced. In that case, although some of the Justices acknowledged distinctions between the separate odors of unburned, burning and burned marijuana insofar as those odors might constitute probable cause for a search, there was no disagreement that the odor of unburned marijuana was indicative of the actual presence of marijuana. ¹

[91 MICHAPP 770] Although we agree with the trial court's determination that there was probable cause to search defendant's suitcases in Arizona, our inquiry must go further to a determination of whether there was an adequate showing of some exigency to support the need for an immediate warrantless search. United States v. Chadwick, supra, 433 U.S. 15, 97 S.Ct. 2476. We are guided by the standard of reasonableness, the cornerstone in Fourth Amendment analysis. United States v. Chadwick, supra, 9, 97 S.Ct. 2476. The test is not whether the police could have secured a search warrant but whether the search was reasonable. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

Our review of the record convinces us that the Arizona officers were justified in conducting an immediate search of defendant's suitcases. The circumstances at the time of the search were sufficiently exigent to make this course of action entirely reasonable. The suitcases had already been checked for passage to Kalamazoo. Both defendant[91 MICHAPP 771] and his luggage were scheduled to depart shortly. Only 32 minutes passed between the time defendant was seen entering the airport and the scheduled departure time of the plane.

This case is similar to the Maryland case of Waugh v. State, 20 Md.App. 682, 318 A.2d 204 (1974), Rev'd on other grounds 275 Md. 22, 338 A.2d 268 (1975), ² where the Maryland Court of Special Appeals noted that it would have been impractical for the Arizona police to obtain a warrant for search of the defendant's suitcases which were to leave shortly for Maryland. The Maryland court also rejected the notion that the police who opened the defendant's suitcases in Arizona should have requested the airline to hold the luggage or should have relied on the police at the end of the flight to obtain search warrants. ³ See also United States v. [91 MICHAPP 772] Ford, 525 F.2d 1308, 1313 (CA 10, 1975). We conclude that the trial court's refusal to suppress evidence of the Arizona search was correct.

Defendant's next challenge is to the admissibility of evidence obtained as a result of the opening of his suitcases by the police in Michigan. It is not disputed that no warrant had been obtained by the Michigan authorities and that defendant did not consent to any search of his suitcases by the Kalamazoo police.

If we were to view the Michigan warrantless searches in isolation from the totality of circumstances, we would be perhaps constrained to find them constitutionally infirm on the basis of United States v. Chadwick, supra. ⁴ However, we decline to accept defendant's apparent contention that the opening of his suitcases in Michigan must be viewed as separate and distinct from what occurred in Arizona.

In United States v. DeBerry, 487 F.2d 448 (CA 2, 1973), the defendants challenged the seizure in New York of a suitcase containing marijuana first discovered in a California search. The Second Circuit panel first found no infringement of Fourth Amendment rights in the...