People v. Word, 121917 MICA, 334970

Docket Nº334970
Opinion JudgePer Curiam.
Party NamePEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JERRY WORD, Defendant-Appellant.
Judge PanelBefore: Meter, P.J., and Sawyer and Shapiro, JJ.
Case DateDecember 19, 2017
CourtCourt of Appeal of Michigan (US)

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v.

JERRY WORD, Defendant-Appellant.

No. 334970

Court of Appeals of Michigan

December 19, 2017

UNPUBLISHED

Oakland Circuit Court LC No. 2015-254122-FH

Before: Meter, P.J., and Sawyer and Shapiro, JJ.

Per Curiam.

Defendant appeals his jury trial convictions of two counts of possession of a controlled substance less than 25 grams (cocaine and heroin), MCL 333.7403(2)(a)(v), [1] three counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and felon in possession of a firearm, MCL 750.224f. Defendant was sentenced to one month to 10 years' imprisonment for each of the controlled substance convictions and the felon-in-possession conviction, and two years' imprisonment for each of the three felony-firearm convictions. For the reasons discussed below, we affirm.

I. FACTS

Defendant was arrested during the early morning hours of April 2, 2015, after the night clerk at a Holiday Inn Express, at which defendant had been staying, called the police to report that she saw defendant, through a window at another room, waving a handgun and talking to himself. Southfield Police Officer, Christopher Clark, testified that when he arrived at the hotel, he saw defendant through the window, holding a handgun, thrusting forward with the handgun, and jumping around like he was nervous and jittery. When other officers arrived at the hotel, they went to defendant's room, knocked on his door, and announced their presence. When defendant opened the door and stepped into the hallway, Officer Michael Raby saw a small table in defendant's room on which he saw a crack pike, white powder and a "chore boy"2 When defendant stepped into the hallway, Officer Raby entered the room to check for anyone who had been harmed or threatened by defendant and to make sure that there was no other armed individual in the room. While walking through the room, Officer Raby saw other drugs and paraphernalia in plain view at a second location. These included: crack cocaine, a second crack pipe, and a container of baking soda that held a glass tube in it. He also saw that the pillow had what appeared to be bullet holes. He then searched the bed coverings where he found additional bullet holes and a handgun.

In all, the police found six grams of powder cocaine, two grams of crack cocaine, and six grams of heroin. The police also found $4, 941 in defendant's possession.

Defendant testified at trial. In his testimony, he stated that he began using crack cocaine in 2014, during a period of marital difficulties with his ex-wife, and that eventually, he moved out of his home and began living in various hotels. Defendant admitted that the items taken from his room at the hotel belonged to him, including a crack pipe. He confirmed that the "corner ties" in the room belonged to him, and that he had some cocaine in his room, however, he disputed ownership of one of the corner ties by stating that it was "questionable." Defendant testified that the glass tube in the box of baking soda was a "cigar tool, " but he stated that he used it "to cook up some cocaine in that." He further testified that although he had a gun in his room, he did not intend to commit a crime with the gun.

II. FOURTH AMENDMENT SEARCH AND SEIZURE

On appeal, defendant first contends that the trial court erred by denying his motion to suppress the evidence collected from his room at the hotel because the police searched his room without first obtaining a search warrant. Under the circumstances of this case, we find no constitutional violation.3

"The Fourth Amendment of the United States Constitution and article 1, § 11 of the Michigan Constitution protect against unreasonable searches and seizures." People v Barbarich, 291 Mich.App. 468, 472; 807 N.W.2d 56 (2011). "Generally, searches or seizures conducted without a warrant are presumptively unreasonable and, therefore, unconstitutional." Id. "Thus, in order to show that a search was legal, the police must show either that they had a warrant, or that their conduct fell under one of the narrow, specific exceptions to the warrant requirement."People v Davis, 442 Mich. 1, 10; 497 N.W.2d 910 (1993). Further, "an occupant of an [sic] hotel or motel room is also entitled to the Fourth Amendment protection against unreasonable searches and seizures." Id. citing Stoner v California, 376 U.S. 483, 489-490; 84 S.Ct. 889; 11 L.Ed.2d 856 (1964).

Two recognized warrant exceptions apply in this case. The first applicable exception is the plain view doctrine which "allows a police office to seize items in plain view if the officer is lawfully in the position to have that view and the evidence is obviously incriminating." People v Galloway, 259 Mich.App. 634, 639; 675 N.W.2d 883 (2003). "An item is obviously incriminatory, meaning its incriminating nature is immediately apparent, if without further search the officers have probable cause to believe the items are seizable." People v Mahdi, 317 Mich.App. 446, 462; 894 N.W.2d 732 (2016) (quotation marks and citation omitted).

The plain-view exception to the warrant requirement is applicable here because before even entering the room, an officer observed several incriminating items in plain view, including a crack pipe, a chore boy, and a corner tie containing what appeared to be narcotics. The incriminating nature of narcotics and narcotics paraphernalia was also immediately apparent. Similarly, while searching defendant's room for other occupants or victims, Officer Raby discovered the other narcotics and narcotics paraphernalia lying in plain view.

The Michigan Supreme Court has held that "immediately apparent means that without further search the officers have probable cause to believe the items are seizable." People v Champion, 452 Mich. 92, 102; 549 N.W.2d 849 (1996) (quotation marks and citation omitted). The plain view exception to the warrant requirement allowed the police to seize the items from defendant's room. The officers were not required to be absolutely certain that the items were being used to commit a crime before seizing them. A reasonably prudent person, viewing the totality of the circumstances, could conclude that the items were being used in the commission of a crime. According, the items were properly seized.

The second applicable exception is the exigent circumstances exception which requires probable cause that the premises to be searched contains evidence or suspects and that the circumstances constituted an emergency leaving no time for a warrant. Davis, 442 Mich. at 24. To qualify under the exception, "[t]he police must . . . establish the existence of an actual emergency on the basis of specific and objective facts indicating that immediate action is necessary to (1) prevent the imminent destruction...

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