People v. Ridgeway

• Decision Date: 28 March 1977
• Docket Number: Docket No. 24900
• Citation: 253 N.W.2d 743,74 Mich.App. 306
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee RIDGEWAY, Defendant-Appellant. 74 Mich.App. 306, 253 N.W.2d 743
• Court: Court of Appeal of Michigan — District of US

Page 743

253 N.W.2d 743

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee RIDGEWAY, Defendant-Appellant.

Docket No. 24900.

74 Mich.App. 306, 253 N.W.2d 743

Court of Appeals of Michigan.

March 28, 1977.

Released for Publication May 31, 1977.

[74 MICHAPP 309] Henry, Smith, Sabbath & Dillard by Milton R. Henry, Detroit, for defendant-appellant.

Frank J. Kelly, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., by Charles P. Kellett, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and ALLEN and D. E. HOLBROOK, Jr., JJ.

ALLEN, Judge.

A jury convicted the defendant of carrying a concealed weapon in an automobile, M.C.L.A. § 750.227; M.S.A. § 28.424, and possession of a controlled substance (cocaine), M.C.L.A. § 335.341(4)(b); M.S.A. § 18.1070(41)(4)(b). On appeal, defendant argues that the convictions are the products of an illegal search and an illegal arrest, that there was insufficient evidence to support the verdict on the controlled substances count, and that his constitutional double jeopardy rights were violated.

About 6 p. m. on New Year's Day 1974, three police officers saw the defendant driving in a city alley and concluded that he had committed a minor traffic offense. ¹ After stopping the defendant's car, one of the officers approached the driver's side of the car while the other two officers approached the passenger side. The defendant got out of his car and waited for the officer. ² The defendant's passenger remained in the car. As the [74 MICHAPP 310] officer approached, he smelled the aroma of burning marijuana. The officer asked the defendant for his identification and vehicle registration- ; defendant responded that the papers were in his purse inside the car.

During that conversation, the officer noticed what appeared to be a "large tinfoil packet" on the floor of the car near the gas pedal. Without further comment, he reached in, picked up the packet, opened it and discovered that it contained a white powder which turned out to be cocaine. The defendant was immediately placed under arrest for a violation of the controlled substances laws and taken back to the police car.

While this was transpiring on the driver's side of the car (the exact time sequence is not clear), the two officers on the passenger side of the vehicle asked the passenger to leave the car. Because the defendant had said that his identification was in his purse, one of the other two officers removed the purse from the car and opened it before giving it to the defendant because "I didn't know what was in it". It turned out that the purse contained a .44-caliber pistol. That discovery led to the conviction for carrying a concealed weapon.

Before the felony charges went to trial, the defendant pleaded guilty to a minor traffic offense which led to the initial stop. He argued in the trial court and argues on appeal that acceptance of that plea precluded his prosecution on the felony charges because of the "same transaction" double jeopardy test announced in People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973). The argument is superficially valid, but it has already been anticipated and rejected by the Supreme Court in Crampton v. 54-A District Judge, 397 Mich. 489, 245 N.W.2d 28 (1976). We reject the defendant's argument on the authority of Crampton.

[74 MICHAPP 311] We next address the argument that the cocaine and pistol were discovered during illegal searches. It is conceded that the officers acted properly in stopping the defendant's car for the traffic violation. ³ The first officer saw the tinfoil packet when the defendant left the door open after leaving the car. Up to this point, we have a classic application of the "plain view" rule. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), People v. Kuntze, 371 Mich. 419, 124 N.W.2d 269 (1963). Discovery of the tinfoil packet was not the result of a "search" as that word is used in U.S.Const., Am. IV. But what followed was a seizure (picking up the packet) and a search (opening the packet). The plain view exception to the search warrant requirement does not authorize seizing and examining everything in sight. Only objects which the officer has probable cause to believe are evidence of a crime may be seized and examined.

"What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. * * * Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them ; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." Coolidge v. New Hampshire, supra, 403 U.S. at 466, 91 S.Ct. at 2038.

Applied to the present case, the quotation means [74 MICHAPP 312] that the officer could not lawfully seize or examine the tinfoil packet unless he had probable cause to believe that the packet contained evidence of a crime. ⁴ People v. Nelson Pitts, 40 Mich.App. 567, 199 N.W.2d 271 (1972), Caver v. Kropp, 306 F.Supp. 1329 (E.D.Mich., 1969). At that point, the officers knew that the defendant had committed a minor traffic violation. They also knew that the occupant(s) of the car had been smoking marijuana. Finally, they knew that narcotics but presumably not marijuana are ofttimes carried in tinfoil packets. Was this enough to create a probable cause belief that the packet contained incriminating evidence? We examine the bits of knowledge one at a time.

We attach no weight at all to the traffic violation. The violation was one which might be committed by any driver in a careless moment. The defendant stopped when signalled to do so, got out of his car and waited for the officers to approach him. There is absolutely nothing about the scenario which suggests a crime. A valid distinction may be drawn between this case and People v. Rembo, 73 Mich.App. 339, 251 N.W.2d 577 (1977). [74 MICHAPP 313] Rembo was stopped because he was driving in a dangerously erratic manner. The officer who approached the car could smell both marijuana and alcohol. Upon leaving his vehicle, Rembo had difficulty walking and volunteered that he had been smoking marijuana. In those circumstances, the traffic violation might be considered in determining whether the officers had probable cause to believe that other drugs might be present. But that would not be a valid inference in the present case. The only element shared by this case and Rembo is the smell of burning marijuana. Here, the traffic violation could not support an inference of criminality. We now consider the importance of the marijuana aroma.

People v. Parisi, 46 Mich.App. 322, 208 N.W.2d 70 (1973), rev'd other grounds, 393 Mich. 31, 222 N.W.2d 757 (1974), held that the smell of marijuana provides sufficient probable cause for a warrantless arrest. The subsequent reversal of that case ⁵ and the holding in People v. Hilber, 69 Mich.App. 664, 245 N.W.2d 156 (1976), that the smell of marijuana did not create sufficient probable cause for a warrantless search casts considerable doubt on the precedential value of Parisi. Still, possessing marijuana is illegal; and the smell of marijuana would give some cause to suspect that illegal substances were to be found in the car. It is important to note, however, that the officer apparently did not suspect that the tinfoil packet contained marijuana. He suspected correctly that the packet contained a more dangerous substance. Since he was not looking for marijuana, the fact that he smelled the marijuana is relevant for our present purposes only to the extent that it might support a [74 MICHAPP 314] valid inferences that one who smokes marijuana might also be in possession of narcotics or other more dangerous drugs. We are not overly impressed by that inference, but it may be entitled to some weight.

We now consider the strongest support for a finding of probable cause, viz., the officer's knowledge that tinfoil packets like the one on the floor of the car often contain narcotics. Given the officer's experience in narcotics law enforcement, his suspicion that the packet contained some controlled substance must be respected. The question is extremely close, but we believe that the officer did have probable cause to believe that the packet contained a controlled substance.

Given that the seizure and search were proper, the officer obviously had probable cause to make a warrantless arrest for possession of a controlled substance.

Given a proper arrest, the search of the purse which followed may properly be classified as a search incident to a lawful arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Or, without reference to the arrest, we would hold that the gun was discovered during a protective frisk as approved by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A possible objection to either holding would be that the gun was inside the car and thus not within the defendant's immediate reach. But the officers still had not seen the defendant's identification. Whether viewed as incident to an arrest or as part of a continuing on-the-scene investigation of suspicious conduct, someone was going to open the purse and produce the identification. Given the circumstances of this case, we do not believe that the officers were required to allow the defendant [74 MICHAPP 315] access to the purse without first checking the contents. A number of federal decisions involving similar circumstances support our conclusion. United States v. Murrie, 534 F.2d 695 (C.A. 6, 1976), United States v. Poms, 484 F.2d 919 (C.A. 4, 1973), United States v. Beasley, 479 F.2d 1124 (C.A. 5, 1973), and United States v. Vigo, 487 F.2d 295 (C.A. 2, 1973).

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