People v. Young

• Decision Date: 01 May 1979
• Docket Number: Docket No. 77-4852
• Citation: 282 N.W.2d 211,89 Mich.App. 753
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Walter YOUNG, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 211

282 N.W.2d 211

89 Mich.App. 753

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Walter YOUNG, Defendant-Appellee.

Docket No. 77-4852.

Court of Appeals of Michigan.

May 1, 1979.

Rehearing Denied June 19, 1979.

Released for Publication Aug. 22, 1979.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Asst. Pros.Atty., E. Gail Willhardt, Asst. Pros. Atty., for plaintiff-appellant.

Steven Parzen, Detroit, for defendant-appellee.

Before RILEY, P. J., and GILLIS and MacKENZIE, JJ.

RILEY, Presiding Judge.

Defendant was arrested on September 2, 1977, and charged with possession of heroin in violation of M.C.L. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a). The undisputed facts show that on the evening in question, police officers stopped to investigate a parked car which appeared to contain two sleeping men. The vehicle's passenger door was open and the inside dome light was functioning. As the police approached, the men roused themselves, at which time defendant removed a tinfoil packet from his pocket and dropped it to the floor of the automobile. One of the officers, familiar with the use of such packets as a method of drug dispersal, seized and opened the packet, which contained an off-white powdery substance later determined to be heroin. Defendant was immediately arrested and taken into custody.

Following the preliminary examination, defendant brought a motion to quash the information and dismiss the case on the grounds that the police officer lacked sufficient probable cause to confiscate and open the tinfoil packet. The trial court granted this motion and the People appeal as of right.

Initially, we observe that the expropriation of the packet cannot be sustained by reference to the "plain view" doctrine, which holds that the seizure of objects within the plain view of a police officer, in a place where he has a lawful right to be, is not constitutionally proscribed for lack of a valid warrant. People v. Hunter, 72 Mich.App. 191, 199, 249 N.W.2d 351 (1976); People v. Triplett, 68 Mich.App. 531, 243 N.W.2d 665 (1976), Lv. den. 397 Mich. 842 (1976). However, this exception is subject to the further limitation that only objects which the officer has probable cause to believe are evidence or implements of a crime may be seized and examined. People v. Ridgeway, 74 Mich.App. 306, 311-312, 253 N.W.2d 743 (1977), Lv. den. 401 Mich. 831 (1977).

Here there is no dispute that, under the circumstances at bar, the officers' investigation of the vehicle was proper. The occupants of the automobile could have been in need of assistance for any of a number of reasons. Hence, the crucial question thus becomes not whether the officer was lawfully in a place to observe, but rather, did what he observe constitute probable cause to believe that the object seized was evidence or an implement of crime.

At this juncture we reach plaintiff's contention that probable cause is no longer required for a limited search and seizure of the kind conducted by the police in this case, but that such an investigation may be premised upon a lesser standard of "reasonable grounds". Plaintiff argues, erroneously, that the facts of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), indicate that, consistent with the Fourth Amendment, the police may, in cases such as this, conduct limited investigatory searches and seizures based upon grounds less than probable cause in the absence of any individualized suspicion. Terry involved the validity of a surface search or "frisk" of the outer clothing of a defendant with whom the officer had contact where the officer reasonably believed that he was dealing with an armed and dangerous person. In authorizing a limited intrusion to search for weapons, the holding in Terry was specifically premised upon, and limited to, the concern for the safety of law enforcement agents. Here it cannot be argued that any solicitude for the officers' safety because of hidden weapons could justify opening the packet.

United States v. Martinez-Fuerte, supra, is also wholly inapposite as it deals with the dramatically different conditions relevant to a border search where a more relaxed Fourth Amendment standard has been held to apply. Nor does a review of the case law and remaining authority cited by plaintiff warrant imposition of a lesser standard than probable cause in the present case.

Next, the State broadly urges us to hold that the time has come (in the evolution of the law) for the courts to realize that the use of tinfoil packets to facilitate drug trade is so widespread and well known among policemen that the mere sighting of such packets is sufficient to establish the requisite probable cause. We decline such a historical invitation. Defendant correctly points out that tin and aluminum foil have a vast number of legitimate and common uses; these commodities permeate American society resulting in almost daily contact with them in one form or another. Any inference of criminal activity derived from their mere possession is too expansive for purposes of the Fourth Amendment.

We acknowledge that this Court has previously used language ostensibly favoring the People's position. In People v. Ridgeway, supra, 74 Mich.App. at 314, 253 N.W.2d at 746, where a police officer observed a tinfoil packet on the floor of defendant's car, the Court stated:

"We now consider the strongest support for a finding of probable cause, Viz., the officer's knowledge that tinfoil packets like the one on the floor of the car often contain narcotics. Given the officer's experience in narcotics law enforcement, his suspicion that the packet contained some controlled substance must be respected. The question is extremely close, but we believe that the officer did have probable cause to believe that the packet contained a controlled substance."

However, in that case the officer also detected the odor of marijuana when defendant was stopped. The inference that marijuana users would be in possession of narcotics may be entitled to some weight according to the Court. The additional circumstance of marijuana smoke in Ridgeway renders it inadequate precedent for plaintiff's position. See also People v. Falconer, 76 Mich.App. 367, 369, 256 N.W.2d 597 (1977), Lv. den. 402 Mich. 816 (1977), holding that a police officer's suspicion that manila coin envelopes, being exchanged by a defendant for money, contained narcotics, did not by itself constitute probable cause for either arrest of the defendant or a search of the defendant's car.

Lastly, the People contend that the additional circumstances present in this case, taken in combination, are sufficient to establish probable cause, to wit: the officer's prior experience with tinfoil packets, defendant's furtive gesture, and the exigent circumstances of a potentially mobile vehicle. The latter ground merits only brief discussion. The exigent circumstances allowing immediate search of a movable vehicle is an exception to the Fourth Amendment's warrant requirement. It does not serve to discharge the antecedent necessity of probable cause. Only where there is probable cause to believe that contraband will be found at the time the search occurs will the exception catalyze permissible investigation of the auto's contents without the procurement of a warrant. People v. Strong, 77 Mich.App. 281, 284-285, 258 N.W.2d 205 (1977); People v. Daniels, 50 Mich.App. 754, 758, 213 N.W.2d 780 (1973), Lv. den. 391 Mich. 828 (1974). See generally, 1 Wharton, Criminal Procedure (12th ed.), § 151, p. 321.

The remaining facts, however, are more troubling. Although insufficient standing alone, the use of tinfoil packets may be considered in combination with other elements in determining the existence of probable cause. One such factor is an evasive or "furtive" gesture by one aware that he is under police observation. As in the case of tinfoil packets, a mere furtive gesture, standing alone, does not create probable cause to search a vehicle. People v. Howell, 394 Mich. 445, 447, 231 N.W.2d 650 (1975); People v. Boudah, 61 Mich.App. 563, 566, 233 N.W.2d 84 (1975); People v. Obadele,58 Mich.App. 139, 143, 227 N.W.2d 258 (1975); People v. Pitts, 40 Mich.App. 567, 576, 199 N.W.2d 271 (1972), Lv. den. 388 Mich. 791 (1972); People v. Reeves, 23 Mich.App. 183, 188, 178 N.W.2d 115 (1970). See also Anno.: Search & Seizure : Furtive Movement or Gesture as Justifying Police Search, 45 A.L.R.3d 581. The rationale behind this rule was considered in People v. Hall, 40 Mich.App. 329, 335, 198 N.W.2d 762, 765 (1972), quoting People v. Superior Court of Yolo County, 3 Cal.3d 807, 817-818, 91 Cal.Rptr. 729, 478 P.2d 449 (1970):

" 'The difficulty is that from the viewpoint of the Observer, an innocent gesture can often be mistaken for a guilty movement. He must not only perceive the gesture accurately, he must also interpret it in accordance with the actor's true intent. But if words are not infrequently ambiguous, gestures are even more so. Many are wholly nonspecific, and can be assigned a meaning only in their context. Yet the observer may view that context quite otherwise from the actor: not only is his vantage point different, he may even have approached the scene with a preconceived notion consciously or subconsciously of what gestures he expected to see and what he expected them to mean. The potential for misunderstanding in such a situation is obvious.

" 'It is because of this danger that the law requires more than a mere " Furtive gesture " To constitute probable cause to search or to arrest.' "

In People v. Pitts, supra, police officers stopped the defendant's car because it had no license plate light and saw a small prescription bottle in the defendant's hand which he dropped between the seat and door as they appr...