People v. Thompson

• Decision Date: 24 January 1978
• Docket Number: Docket No. 31352
• Citation: 264 N.W.2d 118,81 Mich.App. 54
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert L. THOMPSON, Jr., Defendant-Appellant. 81 Mich.App. 54, 264 N.W.2d 118
• Court: Court of Appeal of Michigan — District of US

Page 118

264 N.W.2d 118

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert L. THOMPSON, Jr., Defendant-Appellant.

Docket No. 31352.

81 Mich.App. 54, 264 N.W.2d 118

Court of Appeals of Michigan.

Jan. 24, 1978.

Released for Publication April 6, 1978.

[81 MICHAPP 55] Kenneth A. Birch, East Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., John E. Steele, Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P. J., and ALLEN, and MAHER, JJ.

PER CURIAM.

On the morning of February 18, 1974, defendant was arrested and charged with possession of marijuana, M.C.L.A. § 335.314(c); M.S.A. § 18.1070(14)(c); M.C.L.A. § 335.341(4)(d); M.S.A. § 18.1070(41)(4)(d), possession of heroin, M.C.L.A. § 335.306; M.S.A. § 18.1070(6), M.C.L.A. § 335.314(b); M.S.A. § 18.1070(14)(b), M.C.L.A. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a), and possession of cocaine, M.C.L.A. § 335.316; M.S.A. § 18.1070(16), M.C.L.A. § 335.341(4)(b); M.S.A. § 18.1070(41)(4)(b). A fourth count was dropped. Defendant pled guilty to possession of marijuana. He received and served a 90-day sentence.

After a motion to suppress the evidence and a motion for reconsideration of the motion to suppress were both denied, a jury convicted defendant of possession of heroin and possession of cocaine. Defendant appeals, seeking reversal of the trial court's denial of his motion to suppress and requesting a new trial.

Defendant had been validly stopped by state police for traffic violations. The officer who approached defendant as he was standing outside his car smelled burning marijuana. He arrested defendant, searched him and found six marijuana [81 MICHAPP 56] cigarettes. The officer then searched defendant's vehicle, finding suspected controlled substances in a small black leather coin purse in the console.

It is the search of his automobile which defendant contests. The initial stop of defendant's car, for traffic offenses, was valid. People v. Whalen, 390 Mich. 672, 213 N.W.2d 116 (1973). But when there is no suspicion of an offense other than the traffic violation, a stop does not warrant a general search of the automobile. People v. Gonzales, 356 Mich. 247, 97 N.W.2d 16 (1959), People v. Marshall, 25 Mich.App. 376, 181 N.W.2d 578 (1970).

The police action at issue, however, is more than a general search accompanying a traffic stop. After defendant was stopped, the state police officer detected the smell of burning marijuana and validly placed defendant under arrest. Probable cause existed for the officer to believe a crime was being committed in his presence. People v. Parisi, 46 Mich.App. 322, 208 N.W.2d 70 (1973), rev'd on other grounds, 393 Mich. 31, 222 N.W.2d 757 (1974), People v. Hilber, 69 Mich.App. 664, 245 N.W.2d 156 (1976), People v. Ridgeway, 74 Mich.App. 306, 253 N.W.2d 743 (1977).

The search of defendant's person incident to the arrest was also valid. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), People v. Hall, 57 Mich.App. 553, 226 N.W.2d 562 (1975). While it is true that People v. Hilber, supra, holds that the smell of marijuana does not justify a search of the vehicle without a warrant, the officer here relied on more than the smell of marijuana. The search of defendant's person incident to his arrest produced six marijuana cigarettes and a large sum of money. These facts, together with the knowledge that defendant had recently been in his car with access to the console, were sufficient to [81 MICHAPP 57] give the officer probable cause to believe the console contained more contraband or additional evidence of possession or use of marijuana.

We note that the search in this case was of a motor vehicle. The standard used to determine the validity of such a search was enounced in People v. Whalen, supra.

"1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.

"2. Said reasonableness will be determined from the facts and circumstances of each case.

"3. Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.

"4. A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police." 390 Mich. at 682.

Applying the Whalen ...