People v. Burbank, 358 N.W.2d 348

People v. Burbank

358 N.W.2d 348

Mich. Ct. App.

1984

Check Treatment

Per Curiam.

Defendant was charged with possession with intent to deliver amphetamine. MCL 333.7401; MSA 14.15(7401).

At a suppression hearing, Officer Charnitta Per-due testified that she entered a home in Detroit on October 5, 1982, to execute a search warrant. When she arrived, she noticed several police offi *268 cers and that five adults and some children were standing up against a wall with their hands on the wall. Officer Perdue observed bulges in the brassiere of Mrs. Burbank. She took Mrs. Burbank into another room and searched under her clothes. She removed from Mrs. Burbank’s clothing three vials containing the alleged controlled substances which formed the basis of this рrosecution. The search warrant directed the police to search the premises and certain named individuals. Mrs. Burbank was not among those named in the warrant. The trial court suppressed the evidence and dismissed the case. The prosecutor appeals as of right.

The prosecutor argues that, even though defendant was not named in the warrаnt, she was properly searched under the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍warrant and the evidence seized from defendant was, therefore, admissiblе. We find that this case is controlled by Ybarra v Illinois, 444 US 85; 100 S Ct 338; 62 L Ed 2d 238 (1979), and affirm.

In finding Ybarra controlling, we must distinguish Michigan v Summers, 452 US 692; 101 S Ct 2587; 69 L Ed 2d 340 (1981). In Ybarra, the police learned that a bartender was selling drugs in a tavern. A warrant was issued allowing for the search of the tavern and the bartender. 444 US 88. Defendant was a patron of the bar while the police executed the search warrant. The police detained defendant and patted him down. The officer patting defendаnt down noticed that defendant had a cigarette pack which felt as if it might have something in it. The officer seized this cigarеtte pack and found that it contained packets of heroin. The Court found that since the police did not have рrobable cause to search defendant the evidence should be suppressed. 444 US 96.

In Michigan v Summers, defendant lived in a *269 house which was the subject of a search warrant. Defendant was not named in the warrant. The police were about to execute the warrant when they found defendant on the front steps of the house. The officers asked defendant for his assistance in gaining entry to the house and then detained defendant while they searched the premises. 452 US 693. The police searched the house and found narcotics. They then arrested defendant and searched his person. They also found ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍narcotics on defendant. The Court found that the narcotics seized from defendant were admissible, distinguishing Ybarra:

"The 'seizure’ issue in this case should not be confused with the 'sеarch’ issue presented in Ybarra v Illinois, 444 US 85. In Ybarra the police executing a search warrant for a public tavern detained and searched all of the customers who happened to be present. No question concerning the legitimacy of the detention was raised. Rather, the Court concluded that the search of Ybarra was invalid because the police had no reason to believe he had any special connection with the premises, and the police had no other basis for suspecting that he was armed or in possession of contraband. See id., pp 90-93. In this case, only the detentiоn is at issue. The police knew respondent lived in the house, and they did not search him until after they had probable causе to arrest and had done so.” 452 US 695-696, fn 4.

The instant case is distinguishable from Summers for the same reasons. Mrs. Burbank did not live in the house that the police were searching. The police also did not have probable cause to arrest Mrs. Burbank. While Officer ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Perdue testified that she observed bulges in defendant’s clothing, she stated that she had no idea of what caused the bulges until she searched under defendant’s *270 clothеs. Since it was not apparent that Mrs. Burbank possessed illegal contraband, Officer Perdue could not arrest defendаnt or extend the warrant to search her. People v Secrest, 413 Mich 521, 528; 321 NW2d 368 (1982). 1

The fact that another person on the premises was found to possess contraband also did not provide probable cause to search defendant. As stated in Ybarra:

"It is true that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed. But, a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v New York, 392 US 40, 62-63; 88 S Ct 1889; 20 L Ed 2d 917 (1968). Where the standard is рrobable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that сoincidentally ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍there exists probable cause to search or seize another or to search the premisеs where the person may happen to be. The Fourth and Fourteenth Amendments protect the 'legitimate expeсtations of privacy’ of persons, not places. See Rakas v Illinois, 439 US 128, 138-143, 148-149; 99 S Ct 421; 58 L Ed 2d 387 (1978); Katz v United States, 389 US 347, 351-352; 88 S Ct 507; 19 L Ed 2d 576 (1967).

"Each patron who walked into the Aurora Tap Tavеrn on March 1, 1976, was clothed with constitutional protection against an unreasonable search or an unreasonable seizure. That individualized protection was separate and distinct from the Fourth and Fourteenth Amendment protection possessed by the proprietor of the tavern or by 'Greg’. Although the search warrant, issued upon probable cause, gave the officers authority *271 to search the premises and to search 'Greg’, it gave them no authority whatever to invаde the constitutional protections possessed individually by the tavern’s customers.” 444 US 91-92 (footnotes omitted).

The prosecutor further argues that Ybarra is distinguishable since in the instant case defеndant was visiting a private residence, not a public place such as a tavern. We are unable to make such а distinction. Defendant could legitimately expect as much privacy, if not more, when visiting her friends than while being a patron in а public place.

After carefully considering the arguments, we find the trial court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍properly suppressed the evidence and dismissed the case.

Affirmed.

Notes

In People v Nash, 418 Mich 196; 341 NW2d 439 (1983), the Supreme Court expressed limited disapproval of Secrest, supra. Nash, however, does not affect our decision.