People v. Stewart

• Decision Date: 14 March 1988
• Docket Number: Docket No. 95951
• Citation: People v. Stewart, 420 N.W.2d 180, 166 Mich.App. 263 (Mich. App. 1988)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lisa STEWART and Laverne Norwood, Defendants-Appellees. 166 Mich.App. 263, 420 N.W.2d 180
• Court: Court of Appeal of Michigan — District of US

Page 180

420 N.W.2d 180

PEOPLE of the State of Michigan, Plaintiff-Appellant, v.Lisa STEWART and Laverne Norwood, Defendants-Appellees.

Docket No. 95951.

166 Mich.App. 263, 420 N.W.2d 180

Court of Appeals of Michigan.

Submitted Oct. 13, 1987.

Decided Feb. 2, 1988.

Released for Publication March 14, 1988.

[166 MICHAPP 264]Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., John D. O'Hair, Pros.Atty., Reilly Wilson, Chief of the Crim. Div., Civil and Special Litigation, and A. George Best II, Asst. Pros.Atty., for the People.

Gerald Evelyn, Detroit, for Lisa Stewart.

Mark J. Kriger, pro se.

Before J.H. GILLIS, P.J., and GRIBBS and TIMMS, ^* JJ.

GRIBBS, Judge.

This is a prosecutor's appeal of a suppression order.On February 20, 1986, the Wayne County Sheriff's Department executed a search warrant at the Shadow Box Lounge in the City of Detroit.The search was for cocaine, drug proceeds, drug paraphernalia and records relating to drug trafficking.The warrant also named and authorized the search of Darryl and Reginald Thomas, the alleged owners and operators of the lounge.At the time of the search, defendants Stewart and Norwood were in the lounge.Both defendants worked in the lounge, and defendant Norwood is the wife of Reginald Thomas.The [166 MICHAPP 265] affidavit filed in support of the warrant also mentioned Laverne Norwood, alleging that one of the vehicles used by Reginald Thomas was registered to her.

As the police began their search, they discovered a gun on Reginald Thomas.At this point, the remaining individuals in the lounge were advised that they would be patted down for weapons.Handguns were found in the possession of two patrons but not defendants.All the people present were moved to a central location in the lounge.

Before proceeding with the search, everyone present was asked whether they had money, jewelry, or valuables to identify in the lounge.The prosecutor claims that this was standard procedure.Both defendants stated that their purses were in the lounge.Defendant Norwood's purse was in the locked office adjacent to the bar.Defendant Stewart's purse was behind the bar.

After obtaining a key, Captain Turner opened the office door, found the purse, and brought it to Norwood who identified it as hers.Also in the back room, according to Turner, was cocaine in an open briefcase and money and cocaine in the top drawer of the desk.The room also contained two firearms, wrappings with cocaine residue, and two ladies coats which defendants Norwood and Stewart identified as belonging to them.

Next, Turner searched Norwood's purse and discovered a handgun.He then conducted a more thorough search of the purse and inside a wallet he discovered a card with an alleged drug transaction recorded on it: "One ounce, $2000.00."

Officer Greene retrieved defendant Stewart's purse from behind the bar and began a thorough and lengthy search for evidence.Inside the purse, Officer Greene discovered a clear coin envelope with what she believed was cocaine residue inside [166 MICHAPP 266](it appears that there was more than one envelope).

At the hearing on the defendants' motion to suppress the admission into evidence of the items found in the purses, defendants argued that there was no probable cause to search the purses, because there was nothing linking defendants to the alleged unlawful activity being conducted in the lounge.Defendants also argued that there was no justification to conduct a protective search for weapons in the purses under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968).¹

It was the prosecution's position below that they had justification to search the purses pursuant to the search warrant which provided for a search of the entire lounge.The prosecution contended that under the warrant it was proper to search any closed containers within the lounge.Additionally, the prosecution maintained that the close proximity of Norwood's purse and Stewart's coat to the contraband found in the back room rendered it reasonable and justifiable to search defendants' purses.Finally, the prosecution argued that the search of defendants' purses was a protective search for weapons authorized under Terry.

The trial court, without extensive elaboration, found the prosecution's arguments insufficient, particularly the arguments not resting on Terry, and suppressed the use of the card and the envelopes which contained cocaine residue.

On appeal, the prosecution argues that the purses were searched pursuant to a valid weapons search authorized under Terry, supra.The prosecution maintains that the Terry search of Norwood's[166 MICHAPP 267] purse resulted in the discovery of a concealed weapon violation (although Norwood was not arrested or charged with that offense) and that the seizure of the card evidencing a drug transaction as an incident to the seizure of the weapon.The prosecution also claims that the same valid Terry weapons patdown resulted in an inadvertent plain view discovery of the cocaine-tainted envelopes in Stewart's purse.

We find untenable any claim that the search of the purses can be justified as a protective search for weapons under Terry.The purses were not on the persons of defendants.Defendants were isolated in a central location with no access to any weapons which might have been located in their purses.The police had control of the purses and could have held them until the completion of their search of the premises.To summarize, there was clearly no need to engage in a protective search for weapons and thus no Terry exception can apply.

We believe, however, that the search was valid on another basis.It is our opinion that the search warrant for the premises authorized the search of the purses as containers in the described premises which might contain the items named in the warrant.It is important to emphasize that defendants' purses were not located on their persons or in the places where patrons in the lounge might be expected to place their purses while patronizing the lounge.

Defendant Norwood argues that under Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238(1979), her mere presence at the Shadow Box Lounge did not give rise to probable cause to search her person or belongings.In Ybarra, the Supreme Court held that "mere propinquity to others independently suspected of criminal activity [166 MICHAPP 268] does not, without more, give rise to probable cause to search that person."444 U.S. at 91, 100 S.Ct. at 342.There must be probable cause particularized as to that person before that person can be searched or seized.Id.Ybarra was a patron of a tavern when the police executed a search warrant to search the premises of the tavern and the bartender.The police had no knowledge at the time they executed the search warrant that Ybarra would be in the tavern and they had no reason to believe that Ybarra had been engaged in or was about to engage in any criminal activity.Nevertheless, the police searched Ybarra's person and discovered a cigarette pack containing packets of heroin in his pants pocket.The search of Ybarra merely because he was present was found to be constitutionally impermissible.Id., at pp. 90-91, 100 S.Ct. at 342.

In People v. Arteberry, 154 Mich.App. 1, 397 N.W.2d 198(1986), lv. gtd. 428 Mich. 857, 399 N.W.2d 396(1987)(leave limited to the issue of whether to apply the rule of Ybarra ), our Court, following Ybarra, held that, unless a search of a particularly described person is expressly authorized by a warrant, a full search of a person present on the premises subject to a warrant may not be based upon the warrant.Id., at p. 4, 397 N.W.2d 198.The police in Arteberry, when executing a search warrant for drugs at a residence where the defendant was present, had searched defendant's person and discovered incriminating evidence.See alsoPeople v. Burbank, 137 Mich.App. 266, 358 N.W.2d 348(1984), cert. den.469 U.S. 1190, 105 S.Ct. 962, 83 L.Ed.2d 967(1985)(also follows Ybarra ).

We find the facts of the instant case distinguishable from Ybarra.Commenting on Ybarra, the United States Supreme Court, in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340(1981), stated that the Ybarra "Court concluded that the search of Ybarra was invalid because the [166...