People v. Taylor, Docket No. 103347
| Decision Date | 17 June 1997 |
| Docket Number | Docket No. 103347,No. 3,3 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Byron Lyn TAYLOR, Jose Manuel Vazquez, Jamar Fowler Pimpleton, Charles Leon Morgan, and Moshi Montay Howland, Defendants-Appellees. Calendar |
| Court | Michigan Supreme Court |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and T. Lynn Hopkins, Assistant Prosecuting Attorney, Grand Rapids, for People.
Richard C. Gould, Rockford, and Melissa G. Leckie, Lansing, for Defendants-Appellees.
Michael Thomas, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, amicus curiae, for Prosecuting Attorneys Association of Michigan.
In this case we are asked to determine whether the smell of marijuana alone provides sufficient probable cause to conduct a search of a parked motor vehicle without a warrant. We hold that in making a determination of probable cause the smell of marijuana is but one factor to consider in the totality of the circumstances.
Defendants are five African-American males who were sitting in a parked vehicle at the Anazeh Sands Pool Hall in the City of Wyoming, on March 9, 1994. Wyoming Police Officer Walendzik was on routine patrol that night. As part of his patrol, Officer Walendzik drove through the parking lot where defendants were sitting in their vehicle. There were no specific incidents reported that evening; however, the parking lot was known as a high-crime area and was frequently the site of drug and alcohol complaints.
The parking lot was a public-access lot. There were quite a few cars parked in the lot, and defendants' vehicle was parked two spaces away from another vehicle. Testimony at the preliminary examination indicated that all areas of the parking lot were well lit. In fact, the parking lot was so well lit that one officer testified that you could drive through the lot without headlights.
When Officer Walendzik drove through the parking lot around midnight on March 9, he observed the five defendants sitting in a parked vehicle with the engine off. While the officer observed that the defendants were eating Burger King sandwiches, he saw no unusual activity or furtive gestures by the occupants before he approached it. Furthermore, he did not see any smoke or marijuana in the car.
Nevertheless, he stated that his attention was drawn to the vehicle because, "[t]he vehicle was not running and there were five subjects just seated in the vehicle, not attempting to exit the vehicle, just sitting inside of there." Officer Walendzik approached the driver's side of the vehicle on foot, and made contact with the person seated in the driver's seat. The driver rolled down the window and the officer could smell the odor of burnt marijuana coming from inside the vehicle. Officer Walendzik stated that he had no special training in the smell of marijuana and that he had not been administered a test regarding the smell of marijuana. However, he did testify that during his four-month training period he arrested people for possession of marijuana, and the other officers would point out the smell to him on many occasions.
Officer Walendzik asked the occupants of the vehicle for identification and if they had been smoking marijuana. The defendants stated that they did not have identification with them and that they were not smoking marijuana, and they accused the officer of harassing them. Officer Walendzik testified,
Before Officer Bivens smelled the marijuana himself, Officer Walendzik informed him of the circumstances and that he had smelled burnt marijuana emanating from the vehicle. Officer Walendzik then asked Officer Bivens to confirm the smell "and help [him] getting those subjects out of the vehicle." Officer Bivens then approached the passenger side of the vehicle. He testified that he smelled marijuana when the front seat passenger rolled down the window. Officer Bivens had no special training in the smell of marijuana; however, in his two-year career as a police officer he came in contact with the smell of marijuana "occasionally."
After smelling the marijuana, Officer Bivens ordered the passenger, defendant Pimpleton, out of the vehicle and did a Terry 1 pat down. He immediately felt the outline of a revolver in the inside pocket of the defendant's coat. Officer Bivens handcuffed defendant Pimpleton, yelled to Officer Walendzik that there was a gun, and ordered the defendant to the ground. Meanwhile, Officer Walendzik went to the back of the vehicle and summoned more back-up.
At that time, one of the passengers in the back seat, defendant Vazquez, jumped out of the vehicle. Defendant Vazquez got about three or four steps away from the car before Officer Bivens tackled him and handcuffed him. Shortly thereafter, more officers arrived on the scene. They ordered the remaining defendants out of the vehicle and handcuffed them. The officers conducted a search of the vehicle, which revealed three additional handguns. The officers also found pieces of a cigar on the floorboard of the vehicle that appeared to contain marijuana. The actual presence of marijuana was never confirmed.
Defendant Taylor was charged with two counts of transporting and concealing stolen firearms, M.C.L. § 750.535b; M.S.A. § 28.803(2), and with one count of carrying a concealed weapon in an automobile, M.C.L. § 750.227; M.S.A. § 28.424. Defendants Vazquez, Morgan, and Howland each were charged with one count of transporting and concealing stolen firearms, and of carrying a concealed weapon in an automobile. Defendant Pimpleton was charged with one count of carrying a concealed weapon on his person.
A joint preliminary examination was conducted for all the defendants except Taylor. At the time of the preliminary examination, Taylor had not retained an attorney, nor had one been appointed for him. On the advice of the judge, Taylor waived his preliminary examination with the right to remand should he receive an attorney.
Officer Walendzik was the first witness to testify for the prosecution. After he relayed the events leading up to his decision to call for back-up, the attorney for defendant Howland objected to any further testimony about the evidence obtained by the officers on the basis of an illegal search of the vehicle. Defense counsel asserted that the officers did not have probable cause to order any of the defendants out of the vehicle on the basis of People v. Hilber, 403 Mich. 312, 269 N.W.2d 159 (1978), and People v. Chernowas, 111 Mich.App. 1, 5-6, 314 N.W.2d 505 (1981). The judge took the objection under advisement while he gave the prosecution a fifteen-minute opportunity to call the prosecutor's office to find case law contrary to Hilber and Chernowas.
The preliminary examination continued in the meantime until the prosecution was forced to ask for an adjournment in order to bring in a key witness from Florida who was expected to testify that the weapons found in the defendants' vehicle were stolen from him. However, the attorney for defendant Vazquez objected, stating that the question "with regard to the request for an adjournment, is whether or not that's going to be necessary if the Court has heard sufficient testimony to rule on co-counsel's original motion for suppression" of the evidence in light of Hilber and Chernowas. After hearing arguments from both sides, the judge dismissed the case, even though the preliminary examination had never been completed. The judge stated, "I do not know of any way I can get around [Chernowas ] if I, in fact, did want to."
On appeal by the prosecutor from the magistrate's decision, the circuit court agreed that the searches were illegal and the charges were properly dismissed. A split panel of the Court of Appeals denied leave to appeal for lack of merit on the grounds presented. 2 The prosecutor appealed, and we granted leave to consider whether the odor of marijuana alone provided sufficient probable cause to search the vehicle.
The Fourth Amendment of the federal constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const., Am. IV. 3 This fundamental right is preserved by a requirement that searches be conducted pursuant to a warrant issued by a neutral and detached judicial officer. California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 2068-69, 85 L.Ed.2d 406 (1985). In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the United States Supreme Court established an exception to the warrant requirement for vehicles, recognizing
a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. [Id. at 153, 45 S.Ct. at 285.]
Thus, the Court held that a search of an automobile without a warrant, based upon probable cause to believe that the vehicle contained evidence of a crime in light of the exigency arising out of the mobility of the vehicle, did not contravene the Warrant Clause of the Fourth Amendment. Id. at 158-159, 45 S.Ct. at 287. 4
In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the United States Supreme Court refined the exigency...
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