People v. Thomas, Docket No. 47880

• Decision Date: 09 February 1981
• Docket Number: Docket No. 47880
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lamont C. THOMAS, Defendant-Appellant. 106 Mich.App. 601, 308 N.W.2d 170
• Court: Court of Appeal of Michigan — District of US

Page 170

308 N.W.2d 170

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lamont C. THOMAS, Defendant-Appellant.

Docket No. 47880.

106 Mich.App. 601, 308 N.W.2d 170

Court of Appeals of Michigan.

Feb. 9, 1981.

Released for Publication July 24, 1981.

[106 MICHAPP 602] David J. Hoffman, Pontiac, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., Geoffrey H. Nickol, Asst. Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P. J., and BEASLEY and DENEWETH, ^* JJ.

PER CURIAM.

Defendant, Lamont C. Thomas, was convicted in a bench trial of carrying a concealed weapon, contrary to M.C.L. § 750.227; M.S.A. § 28.424, and was sentenced to not less than three years nor more than five years in prison. He made a motion for a new trial, claiming that evidence of the gun upon which the charge was based was produced [106 MICHAPP 603] through an illegal search and seizure. Upon denial of the motion, defendant appeals as of right.

Defendant was the front-seat passenger in an automobile that was stopped for failing to signal a left turn. Upon approaching the stopped vehicle, Sergeant Hawks and Officer Brown observed defendant bend forward so that his head was at or below the level of the dashboard. Sergeant Hawks found an open bottle of malt liquor standing upright on the floorboard between defendant's feet and placed him under arrest for possession of open intoxicants in a motor vehicle. The 14-year-old driver of the car was issued a citation for having no valid operator's license in her possession.

Defendant and the driver were taken to the patrol vehicle and, pursuant to departmental policy, a wrecker was called to tow the vehicle. No one was present at the scene who could have driven the vehicle back to defendant's house.

Prior to the arrival of the wrecker, Officer Brown searched the vehicle. This was pursuant to departmental policy that vehicles be searched prior to being towed. Officer Brown discovered two bags of marijuana in the unlocked glove compartment. Upon Brown's return to the patrol car, Sergeant Hawks asked her if she had checked underneath the dashboard. Brown replied that she had not.

Sergeant Hawks proceeded to make a second search of the vehicle. He checked under the front seat and looked up under the dashboard. He opened the two vent doors under the dash and looked inside the air vents. He also unlocked the trunk and checked inside it. Hawks discovered a loaded .38-calibre revolver in the air vent on the passenger's side of the vehicle. Neither officer made a list of the items found in the vehicle.

[106 MICHAPP 604] Defendant claims that the inventory search of his automobile was unreasonable in scope and was merely a pretext for a prohibited search without a warrant. Therefore, he claims that the subsequent seizure of the gun was unreasonable and a violation of his Fourth Amendment rights. ¹ Plaintiff argues that the seizure of defendant's automobile and the subsequent search of its interior properly falls within the inventory search exception to the warrant requirement of the Fourth Amendment.

The validity of inventory searches of impounded vehicles was upheld by the United States Supreme Court in South Dakota v. Opperman. ² In Opperman, the police found a bag of marijuana in an unlocked glove compartment during an inventory search of a car that had been impounded for multiple traffic violations. The Court held that the conduct of the police was reasonable under the Fourth Amendment, stating that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case. ³

The Court noted that in the case before them the inventory search was part of standard police procedure and that there was no suggestion that this procedure was a pretext concealing an investigatory motive. It further noted that the inventory search was not unreasonable in scope, since a car's glove compartment is a customary place for the temporary storage of valuables and since vandals would have had ready and unobstructed access to [106 MICHAPP 605] an unlocked glove compartment once inside the car.

In regards to the authority of police to impound vehicles, the Court stated:

"In the interests of public safety and as part of what the Court has called 'community caretaking functions,' Cady v. Dombrowski, (413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973)), automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge." ⁴

The Court stated three reasons behind the practice of inventorying an impounded vehicle's contents: (1) the protection of the owner's property while it remains in police custody, (2) the protection of the police against claims or disputes over lost or stolen property, and (3), the protection of the police from potential danger. ⁵

In the instant case, defendant had been lawfully placed in custody after having been arrested for possession of open intoxicants in a motor vehicle. ⁶ Since the other occupant of the vehicle was too young to drive legally, it was proper for the police to impound the car rather than leaving it parked [106 MICHAPP 606] on the road where it might obstruct traffic and jeopardize public safety. Under these circumstances, it was reasonable, pursuant to departmental policy, to conduct an inventory search of the vehicle prior to its being towed.

We find, however, that the search conducted was unreasonable in scope. Air vents, unlike glove compartments, ⁷ or trunks, ⁸ are not customary places for the storage of valuables. Nor are they areas within plain view. We believe that the facts and circumstances in this case, particularly Sergeant Hawks' second thorough search which included the air vents and the area underneath the car's dashboard, indicate that the "inventory" search here went beyond a mere search for valuables prior to the impounding of the car. Rather, it appears to have been made solely to search for contraband and, thus, since no effort was made to obtain a warrant, was an impermissible search without a warrant. ⁹

Plaintiff contends that even if the inventory search of the front air vent conducted by Sergeant Hawks was unreasonable in scope, the search of the vent and the subsequent seizure of the gun was nonetheless proper. Plaintiff claims that Sergeant Hawks had probable cause to believe that a crime was being committed in his presence and, therefore, could properly search the car after Officer Brown discovered marijuana in the glove compartment during her inventory search. We do not agree.

In Chambers v. Maroney, ¹⁰ the United States Supreme Court recognized that automobiles could [106 MICHAPP 607] be searched without a warrant in circumstances which would not justify the search without a warrant of a house or an office. The Court said:

"Neither (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)) nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords. But the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable. Where this is true, as in Carroll and the case before us now, if an effective search is to be made at any time, either the search must be made immediately without a warrant or...