PEOPLE v FERNENGEL
Docket No. 180586
Court of Appeals of Michigan
April 26, 1996
216 MICH APP 420
Submitted January 10, 1996, at Detroit. Decided April 26, 1996, at 9:25 A.M. Leave to appeal sought.
The Court of Appeals held:
The defendant‘s motion to suppress the evidence should have been granted. The exception to the warrant requirement pertaining to a search incident to an arrest is not applicable under the circumstances of this case. Because the defendant had voluntarily left the vehicle and the vehicle was not within the defendant‘s immediate control at the time of the arrest, the search was not incident to a lawful arrest and suppression of the evidence was proper. The trial court‘s denial of the motion to suppress must be reversed and the matter must be remanded to the trial court for further proceedings.
Reversed and remanded.
O‘CONNELL, J., dissenting, stated that the search of the vehicle was not so removed in time or space that it can immediately be determined to be unreasonable, the pertinent constitutional standard. Given the defendant‘s proximity in time and location to the open door of his vehicle and the loaded pistol in the pocket attached to the door, the trial court properly found that both the arrest and the search were lawful. Lawful searches have been conducted in situations far more removed in time and space than the search conducted here and in situations where there is virtually no possibility that the defendant will be able to obtain a hidden weapon. The search in this case was reasonable and simply prudent police work.
A police officer may search without a warrant the passenger compartment of an automobile as a contemporaneous incident of the arrest of a defendant where the officer initiated contact with the defendant while the defendant was still within the automobile later searched, regardless of whether the defendant was arrested while actually occupying the automobile or after having recently been removed from the automobile; however, where a defendant voluntarily gets out of an automobile and begins walking away from it before contact is initiated by an officer, a case-by-case analysis of the reasonableness of an ensuing search of the vehicle is necessary; where the passenger compartment of the automobile is not within the defendant‘s immediate control at the time of the arrest, the search may be found not to be incident to a lawful arrest and suppression of evidence found in the search may be proper.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Dale A. Crowley, Prosecuting Attorney, and Jonathan C. Pierce, Assistant Attorney General, for the people.
State Appellate Defender (by Rolf E. Berg), for the defendant on appeal.
Before: WAHLS, P.J., and REILLY and O‘CONNELL, JJ.
REILLY, J. Defendant was convicted by a jury of carrying a concealed weapon,
In order to effectuate an arrest, the police officers called defendant‘s business and requested delivery of some food to the public safety building, which was two blocks away from defendant‘s business. Defendant drove to the building in his van, got out, and began walking toward the building carrying the food. When he was approximately twenty to twenty-five feet away from the van, he was approached by two officers and was placed under arrest. While he was being handcuffed, other officers searched his van and discovered a pistol that is the basis for defendant‘s convictions in this case.
Defendant contends that the search of his van without a warrant was unconstitutional. The prosecution contends that the officers were permitted to search the van incident to defendant‘s arrest.
The issue in this case concerns the scope of the search incident to an arrest exception to the warrant requirement. In New York v Belton, 453 US 454, 460; 101 S Ct 2860; 69 L Ed 2d 768 (1981), the Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” The difficulty in this case is that defendant was not arrested while he was an occupant of the vehicle. Our review of the cases of the courts of this state
The Sixth Circuit Court of Appeals discussed its previous holdings concerning the scope of Belton, supra, in United States v Hudgins, 52 F3d 115, 119 (CA 6, 1995):
The search of an automobile is generally reasonable even if the defendant has already been removed from the automobile to be searched and is under the control of the officer.
Where the officer initiates contact with the defendant, either by actually confronting the defendant or by signaling confrontation with the defendant, while the defendant is still in the automobile, and the officer subsequently arrests the defendant (regardless of whether the defendant has been removed from or has exited the automobile), a subsequent search of the automobile‘s passenger compartment falls within the scope of Belton and will be upheld as reasonable. Our decisions have consistently upheld the search of the passenger compartment of an automobile when the officer initiated contact with the defendant while the defendant was still within the automobile later searched, regardless of whether the defendant was arrested while actually occupying the automobile or after having recently been removed from the automobile. However, where the defendant has voluntarily exited the automobile and begun walking away from the automobile before the officer has initiated contact with him, the case does not fall within Belton‘s bright-line rule, and a case-by-case analysis of the reasonableness of the search under Chimel [v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969)] becomes necessary. [Citations omitted.]
The Sixth Circuit Court of Appeals agreed with Strahan that the search of his vehicle was improper. The court held that Belton did not apply because the defendant was approximately thirty feet from his vehicle when he was confronted and arrested by the officers. Strahan, supra at 159. Applying the immediate control test of Chimel v California, supra, the court held that “[b]ecause the passenger compartment of the vehicle was not within Strahan‘s ‘immediate control’ at the time of the arrest, the search was not incident to a lawful arrest, and suppression is proper.” Strahan, supra, at 159.
We find the reasoning of the Sixth Circuit Court of Appeals persuasive and adopt it as our own. The confrontation with the police in this case did not occur until defendant had voluntarily left the van and was twenty to twenty-five feet away from it. Therefore, the search was outside the scope of both Belton and Chimel.
The prosecution argues that the police sought to minimize the danger that defendant, known for assaultive criminal conduct and weapons charges,
Belton was intended to establish “‘[a] single, familiar standard ... to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.‘” Id. at 458, quoting Dunaway v New York, 442 US 200, 213-214; 99 S Ct 2248; 60 L Ed 2d 824 (1979). If the rule is stretched to encompass the search of a vehicle that was voluntarily vacated by a person before confrontation with the police began, the “bright-line” rule becomes hazy and uncertain. The police officers would be left to wonder what combination of temporal and spatial proximity the arrestee must have to the vehicle at the time contact was initiated to allow the search without a warrant. Although Belton is subject to criticism,1 the approach of the Sixth Circuit Court of Appeals provides a more definite standard to guide police officers in their conduct.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
WAHLS, P.J., concurred.
O‘CONNELL, J. (dissenting). I respectfully dissent. The majority concludes that the bright-line rule established by the United States Supreme Court in New York v Belton, 453 US 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981), does not apply to the case sub judice, and it falls back on the older, more nebulous “immediate control” standard set forth in Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969). However, even assuming that the Chimel standard is the appropriate one in the present case, there exist scores of decisions suggesting that the instant dispute is not as cut and dried as the majority would have one believe. See, generally, anno: Modern status of rule as to validity of non-consensual search and seizure made without warrant after lawful arrest as affected by lapse of time between, or difference in places of, arrest and search, 19 ALR3d 727, § 9, pp 746-749 (search of automobile where arrest occurred near, but not in, automobile held valid).
Here, the police had ample reason to conclude that defendant was a dangerous individual and to approach defendant warily. Before the arrest, the police conducted a law enforcement information network check on defendant, which revealed that he had been charged six times with weapons offenses,
Further, the search conducted was not so removed in time or space that one can immediately determine that it was “unreasonable,” the pertinent constitutional standard.
Given defendant‘s proximity in time and location to the open van door containing his firearm, I agree with the trial court‘s statement that “[i]t was a lawful arrest and there was a lawful search.” As recognized in both Belton and Chimel, searches incident to an arrest frequently occur after a defendant has been
The trial court found, in light of defendant‘s criminal history and the proximity of the van, that the conduct of the officers was “simply prudent police work.” The majority does not challenge this finding. I agree with it.
I would affirm.