People v. Toohey

• Decision Date: 27 August 1991
• Docket Number: No. 88974,88974
• Citation: 438 Mich. 265,475 N.W.2d 16
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Raymond Glenn TOOHEY, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 16

475 N.W.2d 16

438 Mich. 265

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Raymond Glenn TOOHEY, Defendant-Appellee.

No. 88974.

Supreme Court of Michigan.

Argued April 2, 1991.

Decided Aug. 27, 1991.

[438 Mich. 267] William F. Delhey, Washtenaw County Pros. Atty., by Marilyn A. Eisenbraun, Asst. Pros. Atty., Ann Arbor, for plaintiff-appellant.

Frank K. Rhodes, III, Detroit, for defendant-appellee.

OPINION

BRICKLEY, Justice.

We are asked to determine whether evidence seized by the police after impounding the defendant's car and conducting an inventory search should be suppressed as fruits of an unconstitutional search and seizure. We hold that the impoundment and inventory search were constitutionally valid because the police acted in accordance with established departmental procedures.

I FACTUAL BACKGROUND

After completing a round of golf, defendant and John Albert joined some other golf league participants at the clubhouse for drinks and food. About 11:30 p.m., defendant and Albert left the clubhouse [438 Mich. 268] in separate vehicles and traveled to Frasers' Pub where they each consumed two mixed drinks. They left the pub at approximately 12:30 a.m. on July 7, 1987, in defendant's car, a BMW, with defendant at the wheel.

They were observed by two Ann Arbor police officers who testified that the defendant crossed the yellow line of the street and drove in an erratic manner, leading them to conclude that the defendant was operating his vehicle while intoxicated. Defendant failed a sobriety test, registering

0.10 percent on a Breathalyzer, and was arrested for OUIL. The passenger, John Albert, remained in the defendant's automobile during these events

A tow truck was requested in order to have the vehicle transported to the impound lot because it appeared that the passenger was intoxicated to the extent that he could not be trusted with the vehicle. Defendant asked if his wife could be contacted by John Albert in order to take custody of the automobile; however, a police officer denied this request because he mistakenly believed that police policy required the vehicle be impounded when it was left unattended after an arrest. ¹

Before it was towed away, an inventory search of the automobile was conducted, pursuant to departmental policy applicable to impoundment of vehicles. A plastic baggie containing a white powdery substance, later determined to be cocaine, was discovered under the driver's seat during this search. The officer then searched the trunk of the [438 Mich. 269] vehicle where defendant's golf clubs were located and discovered a brown paper bag, within one of the compartments of the golf bag, that contained another plastic baggie in which a "large quantity" of a white powdery substance, later determined to be cocaine, was found.

Defendant asserted the cocaine should be suppressed as unconstitutionally acquired evidence. The trial judge stated that this Court's decision in People v. Krezen, 427 Mich. 681, 397 N.W.2d 803 (1986), required a determination "whether the impoundment was arbitrary or unreasonable, taking into account all of the surrounding circumstances." The court then found that the police had acted reasonably in this particular situation. The defendant was found guilty following a bench trial.

The Court of Appeals reversed the conviction and ordered that the charges be dismissed because the cocaine was discovered pursuant to an unconstitutional seizure. It determined that the prosecutor had failed to establish that the impoundment of defendant's automobile was reasonable, in light of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and Krezen, supra. The Court of Appeals stated:

Because the only reason given for the impoundment in this case was the existence of the local ordinance, and because there were no other facts presented that would otherwise justify the impoundment of the vehicle as being reasonable under the circumstances, we find that the police did not sustain their burden in establishing the reasonableness of the seizure. Further, we believe, by relying upon the possibility of theft or vandalism as its basis for finding the impoundment to be proper, the trial court clearly erred when this concern was neither expressed at the hearing nor supported by the record. [183 Mich.App. 348, 358, 454 N.W.2d 209 (1990).]

[438 Mich. 270] The Court of Appeals appeared to require more than an adherence to an existing departmental regulation to justify impoundment of a vehicle. Police officers that impound a vehicle would be required, under this rationale, to state, case by case, that the potential for civil liability was a factor in deciding whether to impound a vehicle after the operator had been placed under arrest. This appears to be a rather narrow application of the United States Supreme Court and Michigan Supreme Court cases interpreting the reasonableness of impounding and searching automobiles under such circumstances. This Court granted leave to appeal. 436 Mich. 880, 461 N.W.2d 367 (1990).

II

The constitutionality of any search and seizure conducted by the police depends on an analysis of the Fourth Amendment of

the United States Constitution ² and art. 1, Sec. 11 of the Michigan Constitution of 1963. ³ Each requires searches and seizures to be conducted reasonably, and in most cases that requires issuance of a warrant supported by probable cause, in order for the results to be admissible. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)

[438 Mich. 271] Any narcotic drug which is seized outside the curtilage of any dwelling house, in violation of art. 1, Sec. 11 of the Michigan Constitution, is still admissible pursuant to the language of that provision.

The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug ... seized by a peace officer outside the curtilage of any dwelling house in this state. [Const. 1963, art. 1, Sec. 11.]

Therefore any defendant from whom there is a seizure of narcotic drugs is provided no greater constitutional protection under art. 1, Sec. 11 than that provided by the Fourth Amendment, and the exclusionary rule derived from that amendment, as applied to the states through the Due Process Clause of the Fourteenth Amendment. See Mapp, supra; People v. Nash, 418 Mich. 196, 341 N.W.2d 439 (1983).

The United States Supreme Court has created a number of exceptions to the need for the police to obtain a warrant to satisfy the mandates of the Fourth Amendment. These exceptions were created for situations in which the Court determined that the warrant requirement was not intended to apply. ⁴ The performance of an inventory search by the police in accordance with departmental regulations is such an established exception to the warrant requirement. ⁵ Such a search is considered to [438 Mich. 272] be an administrative function performed by the police, rather than part of a criminal investigation which the Fourth Amendment was intended to circumscribe.

When police officers are entitled to conduct a search and seizure without a warrant, the appropriate standard for determining the constitutionality of the police conduct is whether the search was reasonable. See Cady v. Dombrowski, 413 U.S. 433, 448, 93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973).

Evaluation of the reasonableness of such a search and seizure "depends upon the facts and circumstances of each case...." Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). The question before us then is whether such conduct by the police was reasonable under the facts and circumstances of this case.

III

The prosecution asserts that the inventory search was properly conducted in accordance with standard departmental regulations, that the impoundment of the automobile was reasonable in light of the circumstances presented to the police officers, and was conducted in conformity with this Court's decision in People v. Krezen, supra.

Defendant asserts constitutional deprivation because the Ann Arbor police officers did not follow their own departmental regulations for impounding automobiles since

the automobile in this case would not have been left unattended after the arrest and because the Ann Arbor police should have allowed the automobile to be turned over to the passenger or contacted his wife. The ability of the Ann Arbor police officers to exercise discretion in determining when to impound an automobile, pursuant to the language in the Ann Arbor Police Department Impound Policy, is also claimed to [438 Mich. 273] create a constitutional infirmity in these standardized impound regulations. ⁶

IV

This Court has not had an opportunity to adequately determine the appropriate standard for analyzing the constitutionality of the impoundment of an arrested person's vehicle and a subsequently conducted inventory search. Although we addressed this issue in Krezen, no decision regarding the constitutionality of police officers' conduct in these situations achieved majority status. ⁷

Even though impoundment is more of a seizure than a search, the validity of the latter is interrelated with the legality of the former. Thus, it is instructive to consider the evolution of the constitutionality of both the impoundment and the inventory search of a person's personal possessions.

A

Cases from the United States Supreme Court

Inventory searches were first accepted as constitutionally[438 Mich. 274] valid without warrants by the United States Supreme Court in Cady v. Dombrowski, supra. In Cady, an off-duty police officer was involved in a single-car accident which left him unconscious and his personal vehicle disabled on the side of the highway. The police impounded the disabled automobile and inventoried the contents in order to determine whether the officer had left his service revolver in the automobile. That led to the discovery of blood-stained clothing...