People v. Strong

• Decision Date: 08 August 1977
• Docket Number: Docket No. 28792
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert STRONG, Defendant-Appellant. 77 Mich.App. 281, 258 N.W.2d 205
• Court: Court of Appeal of Michigan — District of US

Page 205

258 N.W.2d 205

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

Docket No. 28792.

77 Mich.App. 281, 258 N.W.2d 205

Court of Appeals of Michigan.

Aug. 8, 1977.

Released for Publication Oct. 17, 1977.

[77 MICHAPP 283] Muller, Muller, Smith & Greenblatt by Martin J. Smith, Brighton, for defendant-appellant.

[77 MICHAPP 282] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Frank Del Vero, Pros. Atty., Prosecuting Attys. Appellate[77 MICHAPP 283] Service by Mark I. Leach, Lansing, for plaintiff-appellee.

Before DANHOF, C. J., and T. M. BURNS and KEYES, ^* JJ.

DANHOF, Chief Judge.

On February 17, 1976, defendant was convicted by a jury of possession of phencyclidine, contrary to M.C.L.A. § 335.341(4)(b); M.S.A. § 18.1070(41)(4) (b). He now appeals by right.

Before trial, defense counsel moved in the circuit court to suppress from use in evidence the contraband seized from the vehicle in which defendant was riding. For purposes of ruling on the motion to suppress, the circuit court had before it only the preliminary examination testimony. On appeal, we may not consider amplifying testimony taken at trial; in determining whether the circuit court correctly denied the motion to suppress we are confined to the testimony taken at the preliminary examination. People v. Walker, 385 Mich. 565, 572-573, 189 N.W.2d 234 (1971), People v. Zeigler, 358 Mich. 355, 359, 100 N.W.2d 456 (1960), People v. Murphy, 28 Mich.App. 150, 154, 184 N.W.2d 256 (1970).

Summarized, the transcript of the preliminary examination reveals that on July 3, 1974, Officers Chapman, Mohning, and Gross were stationed at the entrance to the Appleton Campground, in Livingston County, checking to see that vehicles entering the campground after the 10 p. m. park curfew were registered. At about 10:20 p. m. Officer Chapman stopped the van in which defendant was [77 MICHAPP 284] a passenger, determined that the occupants were not registered campers, shone his flashlight into the van's interior, and observed two open beer containers on the floor on the passenger's side of the van. Traffic was building up behind the halted van, so Officer Chapman directed the driver to pull into a nearby parking lot.

As the van pulled over, Officer Chapman walked beside the van, near the passenger window. He was no longer shining his flashlight into the interior, and he testified that because the area was unlighted and the sun had set it was "somewhat dark". Sometime during the approximately one minute that it took for the van to reach the parking lot, Chapman observed defendant turn and lean between the van's bucket seats. From his vantage point, Chapman saw only the back of defendant's head and part of his shoulders and upper back; he could not see defendant's hands, lower arms, feet or mouth.

When they stopped, Officer Chapman directed defendant and the driver to exit the vehicle and produce identification. After they complied, Officer Chapman leaned into the van, reached between the bucket seats and under a rug on the floor behind the seats, and withdrew a brown paper bag that he found there. Inside the paper bag he found four plastic bags containing purple and pink pills. Defendant and the driver were charged with open alcoholic beverage container violations, M.C.L.A. § 436.34a; M.S.A. § 18.1005(1), but these charges were dropped after analysis of the pills revealed they contained phencyclidine.

To justify a warrantless automobile search, there must be probable cause to believe that a felony has been or is being committed. People v. Iverson, 34 Mich.App. 519, 526, 191 N.W.2d 745 [77 MICHAPP 285] (1971). The burden is on the people to show that the police acted reasonably, based on probable cause and in response to an exigent circumstance, thus bringing the search within one of the established exceptions to the warrant requirement. People v. White, 392 Mich. 404, 410, 221 N.W.2d 357 (1974). In passing upon the reasonableness of a search, only those facts known to the officers at the time of the search may be considered; events subsequent to the seizure may not be considered. People v. White, 46 Mich.App. 195, 198, 207 N.W.2d 921 (1973).

In the present case, Officer Chapman knew the following facts before he conducted the search: The van did not have the necessary park sticker; there were two open beer containers on the floor beside the defendant's feet; and defendant had turned and leaned between the bucket seats while the van was moving toward the parking lot.

We attach no significance to the lack of camping registration, as no inference of criminal activity can be drawn from such a violation. People v. Ridgeway, 74 Mich.App. 306, 312, 253 N.W.2d 743 (1977).

The question thus narrows to whether Officer Chapman's observation of two open beer containers and defendant's movement while the van pulled over gave rise either to reasonable cause to believe that additional open beers were present in the van or reasonable cause to believe that the van contained evidence that a felony had been or was being committed. Under the circumstances of this case we hold that they did not. ¹

First, we can see no logical basis for inferring from the presence of two open beer containers, two [77 MICHAPP 286] occupants, and defendant's movement that additional open containers were present. In any case, it is clear that the scope of Officer Chapman's search, which entailed lifting a rug from the floor of the van, finding a paper bag and opening it to view its contents, exceeded the scope of any reasonable search for additional open containers. It would be illogical to infer from the presence of two open beer containers, two occupants, and defendant's movement that an additional open container might be concealed in a paper bag under a rug.

Secondly, we can conceive of no logical inference from the facts known to Officer Chapman that would give rise to probable cause to believe that evidence of other criminality, apart from the open alcoholic beverage container violation, might be present in the van. It cannot be said that those who drink beer while driving are likely to possess narcotics, weapons, stolen goods, or any other evidence of criminality unrelated to an open alcoholic beverage violation.

"Furtive gestures" have been defined as "obviously evasive actions". People v. Pitts, 40 Mich.App. 567, 576, 199 N.W.2d 271 (1972), People v. Evans, 3 Mich.App. 1, 7, 141 N.W.2d 668 (1966). An inference of criminality may be drawn from circumstantial evidence only if it follows "as an impelling certainty". People v. Davenport, 39 Mich.App. 252, 257, 197 N.W.2d 521, 56 A.L.R.3d 942 (1972).

In People v. Ridgeway, supra, the officer knew that the defendant had committed a minor traffic violation, that the occupants of the car had been smoking marijuana, and that narcotics are often carried in tinfoil packets such as the one the officer observed in plain view on the floor of the car. For purposes of determining whether there [77 MICHAPP 287] was probable cause to open the packet and ascertain whether it contained a dangerous drug, the Court attached "no weight at all" to the traffic violation, was "not overly impressed" by the second factor (which we deem far more significant than the open alcoholic beverage containers in the present case), and termed the question "extremely close" even in light of the last factor. Ridgeway, supra, at pp. 312, 314. The Court in Ridgeway concluded that the officers had probable cause to believe that the packet contained a controlled substance, and therefore upheld the search and seizure.

The present case is distinguishable from Ridgeway in two critical respects, however. First, the basis for the inference recognized in Ridgeway, supra, 74 Mich.App. at 314, 253 N.W.2d 743 at 746, "that one who smokes marijuana might also be in possession of narcotics or other more dangerous drugs", is absent here; defendant had an open beer, not marijuana. ² Secondly, the foil packet in Ridgeway was in plain view, thus bringing into play the suspicion of an experienced...