People v. Romano
| Decision Date | 21 November 1989 |
| Docket Number | 103685 and 103686,Docket Nos. 103036 |
| Citation | 448 N.W.2d 795,181 Mich.App. 204 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anat ROMANO, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Zory Sadi ROMANO, Defendant-Appellant. 181 Mich.App. 204, 448 N.W.2d 795 |
| Court | Court of Appeal of Michigan — District of US |
[181 MICHAPP 208] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the people.
Sean M. Taylor, Detroit, for Anat Romano.
Fried, Saperstein, De Vine & Kohn, P.C. by Steven R. Sonenberg, Southfied, for Zory Sadi Romano.
Before SAWYER, P.J., and DOCTOROFF and BURNS, * JJ.
Zory Romano was convicted by a jury of illegal possession of over 650 grams of heroin. M.C.L. Sec. 333.7403(2)(a)(i); M.S.A. Sec. 14.15(7403)(2)(a)(i). In a separate trial the jury convicted Zory Romano and his sister, Anat Romano, on one count each of illegal possession of less than fifty grams of cocaine. M.C.L. Sec. 333.7403(2)(a)(iv); M.S.A. Sec. 14.15(7403)(2)(a)(iv). We affirm, but remand for resentencing of Anat Romano.
In Docket No. 103036, Anat Romano appeals her conviction and sentence, arguing that evidence used against her should have been suppressed since it was the result of an illegal search, that [181 MICHAPP 209] actions by the presiding judge at trial prejudiced the jury and deprived her of a fair trial, and that she should be resentenced because the trial judge failed to follow the sentencing guidelines and because her sentence shocks the judicial conscience. In Docket Nos. 103685 and 103686, Zory Romano appeals his heroin and cocaine convictions, respectively. He argues that evidence obtained from an illegal search was improperly used against him, that evidence of his possession of cocaine was improperly admitted during his trial for heroin possession and that the statute making possession of a controlled substance illegal violates the constitutional mandates of equal protection and the separation of powers, and the constitutional prohibitions against cruel and unusual punishment. The three appeals have been consolidated by this Court.
On February 23, 1987, defendants, who are Israeli citizens, checked in at the Quality Inn in Romulus, Michigan. The next day they made arrangements to stay in the hotel for another night. On February 25, 1987, defendants requested to remain in the hotel for another night but were told that that would not be possible because the hotel was fully booked for that night. Checkout time was 12:00 noon. When defendants had not vacated by 2:00 or 3:00 in the afternoon, the hotel manager, Robert Davies, went to their room to request that they leave. Zory Romano was out, so Mr. Davies explained to Anat Romano that they had to leave. She explained that her brother would return in an hour and that they would leave. When they had not left by 5:00 p.m., Mr. Davies returned to their room, waited while Anat Romano packed her and her brother's belongings, and escorted the woman to the lobby. Anat Romano eventually left the premises by taxicab. A [181 MICHAPP 210] security guard overheard Anat Romano request that the cab driver take her to the Knights Inn. About a half hour later, Anat Romano returned to the Quality Inn and explained to the security guard that she had inadvertently left a briefcase in the room she had occupied. The guard's attempt to enter the room to retrieve the briefcase was unsuccessful, apparently because the dead bolt, to which allegedly only the maids had a key, was engaged. The guard believed that all maids had left the hotel for the day. After it appeared that he would be unable to gain access to defendants' former room, the security guard suggested that Anat Romano leave her name and address so that the hotel could send the briefcase to her. She refused, protesting that she was leaving on a flight that night, and insisted on calling her brother. The security guard spoke to Zory Romano over the phone. At first Zory Romano was upset and threatened to call the police. When the guard concurred in the suggestion, however, Zory Romano became apologetic and allegedly told the guard, "[F]orget about the briefcase ... I know where the briefcase is ... I got it at one of my friend's house." Anat Romano then left the Quality Inn.
About fifteen minutes later, the guard discovered that some of the maids were still in the hotel and had them let him into the room where defendants had stayed. They searched the room and finally found a briefcase under the bed. The support for the bed is apparently solid wood and attached to the floor. The mattress and box springs rest upon the support so that it is impossible to gain access to the area underneath the bed without completely lifting both the springs and the mattress. The security guard put the briefcase back where he had found it and called the Romulus Police Department. Officer Dwayne Smith arrived[181 MICHAPP 211] and picked up the briefcase. The case had no identifying marks on it; however, Officer Smith was told by the guard that it belonged to the people who had just rented the room. He was informed that defendants had called and inquired about the case and that Anat Romano had returned to the Quality Inn in an attempt to get the case. The officer was provided with a piece of paper with Zory Romano's name on it. The security guard also apparently told Officer Smith that defendants had obtained lodging at the Knights Inn, a fact which the guard had confirmed with that hotel by phone. Testimony was given at the preliminary examination that Zory Romano's alleged assertion that the briefcase had been discovered elsewhere was told to the officer. Testimony elicited at the subsequent trial substantiated this same fact. Fifteen minutes after Officer Smith took the briefcase to the police station, he forced open its lock. He discovered $10,000, a small quantity (about 5.382 grams) of cocaine in the fingers of a glove, and Zory Romano's passport.
About fifteen minutes after the police left with the briefcase, the security guard at the Quality Inn observed an individual whom he believed to be Zory Romano enter the hotel and proceed to the second floor. The guard called the police. After the police arrived, Zory Romano was confronted and asked for identification. When the name on his California driver's license matched the one on the passport in the briefcase, he was arrested. The police then conducted a custodial search of Zory Romano and confiscated $31,027, jewelry, a watch, a wallet, and car keys attached to a tag identifying his rented vehicle by make and license number. Zory Romano admitted to owning the briefcase and said that he was then staying at the Knights Inn.
[181 MICHAPP 212] The police arrived at the Knights Inn at about 12:30 a.m. with a warrant to search the room registered in Anat Romano's name. In searching the room, police discovered 254.4 grams of cocaine, a .38 caliber revolver and bullets for a .357 magnum. Officer Ondejko returned to the Quality Inn to search for the .357 magnum and sent Officer St. Andre to search Zory Romano's rental car for the apparently missing gun. The police had no warrant to search the vehicle. Upon finding the rental car, Officer St. Andre searched it for the .357 magnum. He discovered nothing in the passenger's compartment; however, in the trunk of the vehicle, Officer St. Andre discovered a paper bag containing drug paraphernalia, and 879.7 grams of heroin.
At the preliminary examination, the district judge rejected defense counsel's argument that the search of the briefcase, conducted without a warrant, was illegal. The judge ruled that
[the security guard] was told by some foreign male, forget about the suitcase. It's at a friend's house. Therefore, he had every reason to believe that the suitcase, if there was a suitcase there, did not belong to whoever was calling, or it was abandoned. He testified that he told either Officer Smith or the dispatcher that same thing.
He later reiterated:
I have held that after the guard, security guard had the discussion with the people who were involved at least over the telephone, there was a foreign male who called him once. Told him he wanted to get the bag and called back and said forget it. The bag is at a friend's house. Don't look for it anymore. That he had every reason to believe that the bag was abandoned. And when he search [sic] the room with the help of maids, and [181 MICHAPP 213] found a bag. He contacted the Police Department, conveyed to them the information they had.
Officer Smith arrived, took the bag to the police station. Opened it for the purpose of attempting to locate some identification in it....
I'm satisfied that the police officer, Officer Smith, had a right to open that thing....
The trial court also overruled defense counsel's objection to the search of Zory Romano's car. The court did not specify the grounds for its ruling, but it ruled, following the prosecution's assertion, that the search without a warrant was legal because public safety was a concern since a possible second gun was missing.
At Zory Romano's heroin possession trial, Zory Romano denied knowledge of the heroin discovered in the trunk of his rental car. The prosecution indicated that it intended to introduce evidence of Zory Romano's cocaine possession, for which he had been charged but not yet convicted. Judge Gillis overruled the defense objection to the admissibility of this evidence:
[T]his is all part of the same transaction. And due to the nature of the defense I think it is admissible. It's got a certain probative value, as to whether he was connected, in any way, with the drugs in the trunk of the car. I'll overrule the objection.
Evidence of the discovery of a small...
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