People v. Sinistaj, Docket No. 109816

• Decision Date: 16 July 1990
• Docket Number: Docket No. 109816
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fran SINISTAJ, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 36

457 N.W.2d 36

184 Mich.App. 191

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fran SINISTAJ, Defendant-Appellant.

Docket No. 109816.

Court of Appeals of Michigan.

Submitted Dec. 13, 1989.

Decided Feb. 13, 1990.

Released for Publication July 16, 1990.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Richard Thompson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Richard H. Browne, Asst. Pros. Atty., for the People.

Colista, Adams, Dettmer & Palmer, P.C. by Robert W. Palmer and F. Philip Colista, Detroit, for defendant-appellant.

Before REILLY, P.J., and CYNAR and BURNS, ^* JJ.

PER CURIAM.

Defendant appeals as of right his convictions for possession with intent to deliver between 50 and 225 grams of cocaine, M.C.L. Sec. 333.7401(2)(a)(iii); M.S.A. Sec. 14.15(7401)(2)(a)(iii), and carrying a pistol in a vehicle, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424. He was sentenced to terms of ten to twenty years on the cocaine possession conviction and three to five years on the weapon charge, these sentences to run concurrently. Defendant challenges the admission of evidence obtained through an allegedly unlawful search and seizure, the trial court's denial of his request for an adjournment, and the sentence imposed. We affirm.

At about 2:15 a.m. on March 30, 1986, Farmington Hills police officer Brad Schwartz received a call that a suspicious white car with two occupants had been sitting in an apartment complex parking lot for some time. Officer Ed Wozniak, who was riding with an auxiliary officer, also received the call. Schwartz arrived at the apartment complex a second or two before Wozniak, who drove up behind him. Schwartz parked within about twenty feet of the white car and started to leave his own semi-marked vehicle. Almost simultaneously, the passenger got out of the suspect car and, in a frantic and nervous manner, asked Officer Schwartz what he wanted. The passenger took one hand out of his pocket, clenched his fist and quickly put it back in his pocket. Concerned that he might have a weapon, Schwartz asked the passenger several times to take his hand out of his pocket, but he refused. The officer grabbed the passenger's hand and forced it open, revealing a packet of white powder. Schwartz and Wozniak then arrested the passenger for possession of cocaine.

While this was taking place, defendant sat motionless in the driver's seat of the white car, with both hands on the steering wheel. Through the open passenger door, the officer saw an open beer can and an open bottle of cognac on the floor of the front seat. Officer Wozniak decided to arrest defendant for having open intoxicants in his car. When he patted down defendant, Wozniak found a telephone pager clipped to defendant's belt, a small vial of suspected cocaine and $2,715 in cash. While Wozniak was arresting defendant, Schwartz found under the driver's seat a fully loaded revolver, a loose round of ammunition and a brown paper bag containing drug paraphernalia. After placing defendant in his patrol car, Wozniak removed the keys from the ignition, opened the trunk of the car and noticed a cardboard panel slightly ajar. Behind the panel was a tape-covered brown box containing 106.52 grams of cocaine and a package of baking soda.

Defendant contends that the evidence found on his person and in his car when he was arrested was inadmissible at the preliminary examination and at trial as the fruit of an unlawful search and seizure by the police. First, he argues that the police officers' actions in arriving at the apartment parking lot and approaching defendant's vehicle constituted an investigatory stop, for which they had no reasonable articulable suspicion of ongoing criminal activity.

A seizure which triggers the protections of the Fourth Amendment occurs when, under the circumstances, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); People v. Shabaz, 424 Mich. 42, 66, 378 N.W.2d 451 (1985), cert. dis. 478 U.S. 1017, 106 S.Ct. 3326, 92 L.Ed.2d 733 (1986). However, not all encounters between police and citizens rise to the level of a seizure requiring constitutional justification. Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968). In Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983), Justice White wrote in a plurality opinion:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.... Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.

Earlier, in Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. at 1877, also in a plurality opinion, the Supreme Court offered examples of circumstances which might constitute a seizure, even where the person made no attempt to leave:

[T]he threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

More recently, in Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984), the Court explained:

Although we have yet to rule directly on whether mere questioning of an individual by a police official, without more, can amount to a seizure under the Fourth Amendment ... [it] is apparent ... that police questioning, by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.... Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment.

Interpreting Terry, supra, and its progeny, this Court in People v. Daniels, 160 Mich.App. 614, 619, 408 N.W.2d 398 (1987), stated:

Thus, it appears that for Terry purposes a police approach for questioning on the street amounts to a consensual encounter, not a Terry stop, unless there exist intimidating circumstances leading the person to reasonably believe he was not free to leave or the person rebuffs the police officer by refusing to answer and walking away. It is in the latter situations that justification for a Terry stop must be present before the police may detain the person.

We conclude that no investigatory stop had occurred at the point where Officer Schwartz had pulled within twenty feet of the suspect car and was leaving his vehicle. Officer Wozniak's patrol car was behind Schwartz's. According to Officer Schwartz, he had not used the overhead lights of his semi-marked car and did not have his gun drawn. Before Schwartz had any opportunity to speak or question the occupants of the car, defendant's passenger created, by his actions, a reasonable articulable suspicion of criminal activity, at least by the passenger. The initial actions of the police officers were not so intimidating as to lead defendant to reasonably believe he was not free to leave or rebuff the officers by refusing to answer any questions and drive away. Daniels, supra. Absent an investigatory stop prior to the passenger's suspicious movements, the officers were not required to show that they had a reasonable articulable suspicion of criminal activity by defendant.

Defendant further argues that the search of his person was unlawful, because it was not incident to a lawful arrest. First, he contends the officers never testified that there were alcoholic beverages in the open beer can and cognac bottle. Officer Wozniak testified on several occasions that there were open intoxicants in the vehicle in plain view. We can only conclude at this juncture that the officer meant what he said.

Defendant also claims that his arrest pursuant to M.C.L. Sec. 436.34a; M.S.A. Sec. 18.1005(1) was unlawful, because the statute's prohibition against open containers of alcoholic beverages is limited to vehicles on state highways. Defendant argues that, because his vehicle was not on a public highway, he could not be arrested under that statute.

M.C.L. Sec. 764.15(1)(a); M.S.A. Sec. 28.874(1)(a) authorizes a peace officer to arrest a person without a warrant when an ordinance violation is committed in the peace officer's presence. Farmington Hills Ordinances, Sec. 80.310 states:

Transportation of Liquor in Passenger Compartment of Vehicle; Restrictions; Exceptions. A person shall not transport or possess any alcoholic liquor in a container which is open, uncapped or upon which the seal is broken, within the passenger compartment of a vehicle in a public place. If the vehicle does not have a trunk or compartment separate from the passenger compartment, a container which is open, uncapped or upon which the seal is broken shall be encased or enclosed.

Because defendant's vehicle was parked in a public place, his arrest pursuant to Sec. 80.310 was lawful. Once defendant was lawfully arrested, Officer Wozniak was free to search him incident to that arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); People v. Chapman, 425 Mich. 245, 250, 387 N.W.2d 835 (1986). Moreover, once defendant and his passenger were arrested, the police officers were empowered to conduct a search without a warrant of the entire passenger compartment...