PEOPLE v GARCIA
No. 28413
Michigan Court of Appeals
February 7, 1978
81 MICH APP 260
Submitted October 5, 1977, at Lansing.
OPINION OF THE COURT
1. CONSTITUTIONAL LAW-CRIMINAL LAW-CONSTITUTIONAL STANDARDS-POLICE ACTIVITIES-RESTRICTION.
A state is free as a matter of its own law to impose greater restrictions on police activity than those which the United States Supreme Court holds to be necessary under Federal constitutional standards.
2. SEARCHES AND SEIZURES-REASONABLENESS-TIME OF SEARCH OR SEIZURE-POLICE OFFICER-INFORMATION.
The reasonableness of any search or seizure must be determined as of the time of the search or seizure; in the determination of reasonableness, consideration may be given to the information possessed by the police officer who is conducting the search or seizure.
3. SEARCHES AND SEIZURES-OUTSIDE OF CURTILAGE-REASONABLENESS-CONSTITUTIONAL LAW-CONSTRUCTION-EVIDENCE.
The proviso in a section of an article of the Michigan Constitution protecting against “unreasonable searches and seizures” which prohibits the exclusion from evidence of “any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house” precludes a construction of the Michigan search and seizure clause imposing a higher standard of reasonableness for searches and seizures of items named in the proviso than the United States Supreme Court has held applicable under the Fourth Amendment (
4. SEARCHES AND SEIZURES-INTERIM BAIL STATUTE-HIGHER STATE STANDARD-ARREST-TRAFFIC VIOLATION-PAT-DOWN SEARCH-SUPPRESSION OF EVIDENCE-STATUTES.
The interim bail statute embodies a legislative policy affording a
REFERENCES FOR POINTS IN HEADNOTES
[1-3] 68 Am Jur 2d, Searches and Seizures §§ 5, 6.
[2] 68 Am Jur 2d, Searches and Seizures §§ 68-70.
[3] 68 Am Jur 2d, Searches and Seizures § 20.
[4-6] 8 Am Jur 2d, Bail and Recognizance § 21.
68 Am Jur 2d, Searches and Seizures §§ 39, 103.
5. CRIMINAL LAW-SEARCHES AND SEIZURES-INTERIM BAIL STATUTE-TRAFFIC OFFENSES-CUSTODIAL ARREST-PAT-DOWN SEARCH-STATUTES.
A police officer after stopping a defendant for a minor traffic violation for which a custodial arrest is made and after a pat-down search for weapons is made has a duty to inform the defendant of the defendant‘s rights under the interim bail statute and, upon arrival at the station house, to accept bail proffered by the defendant or one acting on his behalf if no magistrate is readily available for an arraignment (
DISSENT BY J. H. GILLIS, J.
6. SEARCHES AND SEIZURES-SEARCH INCIDENT TO ARREST-CUSTODIAL ARREST-INTERIM BAIL STATUTE-WEAPONS.
The interim bail statute does not circumvent the right of a police officer to guarantee his own safety by restricting his right to search an individual who is under full custodial arrest; a police officer has every right to insure that the individual he has arrested does not possess any instrument which could be used as a weapon to harm the officer or effectuate an escape (
Appeal from Saginaw, Hazen R. Armstrong, J. Submitted October 5, 1977, at Lansing. (Docket No. 28413.) Decided February 7, 1978.
Jose Garcia was convicted of possession of cocaine, carrying a weapon in an automobile, extortion, and subornation of perjury. Defendant appeals. Conviction for possession of cocaine and
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Lawrence W. Smith, Assistant Prosecuting Attorney, for the people.
Doherty & Thomas, P. C., for defendant on appeal.
Before: D. C. RILEY, P. J., and J. H. GILLIS and R. M. MAHER, JJ.
PER CURIAM. Following a jury trial, defendant Jose Garcia appeals his conviction of possessing the controlled substance cocaine,
I.
On September 25, 1974, at approximately 6 a.m., Officer Jessie Ibanez, patrolling alone in the city of Buena Vista, observed the driver of a 1973 Pontiac make an improper left turn. Officer Ibanez followed the Pontiac and signaled the driver to pull over. The driver (later identified as defendant) came to a stop in an adjacent K-Mart parking lot. The sole passenger, Marcos Martinez, remained in the Pontiac.
Emerging from his car, defendant met the officer between the two vehicles. The officer advised de-
“Q. [Defense attorney] [D]id it feel like a knife to you?
“A. [Officer Ibanez] No, sir.
* * *
“Q. Did it feel like a weapon of any kind to you?
“A. It felt like something that wouldn‘t retain its a * * * it kept retaining its shape, when I squeezed it.
“Q. But not like a weapon?
“A. No, sir.”
Apprised of the conflict by defense counsel, Officer Ibanez acknowledged his prior testimony, including the statement that the object did not feel like a weapon. Defense counsel then asked:
“Q. Now you said you knew it was a file?
“A. [Officer Ibanez] No, sir, I didn‘t say it was a file. I said it could have been a file; could be anything.
“Q. Could be anything. Could be a piece of paper.
“A. Could also be a piece of tinfoil.”
The record discloses that the unresilient object turned out to be a tinfoil packet containing cocaine. A more thorough search of defendant‘s pockets yielded another tinfoil packet of cocaine. At this, Officer Ibanez placed defendant in the back seat of the patrol car, radioed for back-up support, and, on the arrival of Officer Richard Schaefer, approached the passenger, Martinez. At Officer Ibanez‘s request, Martinez stepped from the car.
“Q. [Defense attorney] Why did you ask him to step out of the vehicle?
“A. [Officer Ibanez] I wanted to see-I had reason to believe possibly there was some more in the car, possibly more narcotics, more narcotics-there could be more.
“Q. Then what did you do, after he got out of the car? Did you proceed to search him?
“A. No, I asked him for I.D. He said he didn‘t have none. Then I asked him to-when I was asking him to turn around, I put my hand on his back pocket. So he had a wallet. I took it out. He had I.D.”
Officer Ibanez then searched Martinez more thoroughly, discovering in the process seven .45-caliber bullets. The officer then led Martinez to the cruiser and told him to sit in the back seat. Next Officer Ibanez removed defendant from the back seat, placed handcuffs on him and directed him to sit beside Martinez. With Officer Schaefer standing by, Officer Ibanez searched the front seat of the Pontiac but found nothing. A second search, conducted by both officers, again produced nothing. At this point, Officer Ibanez returned to the cruiser and talked to Martinez, telling him that if a gun
In addition to the foregoing testimony, Officer Ibanez related several instances, subsequent to the discovery of the cocaine, in which defendant uttered threats against the officer and his family; the defendant, according to Officer Ibanez, also urged the officer to testify untruthfully in court. These alleged statements by defendant ultimately led to the extortion and subornation of perjury charges.
II.
In a pre-trial motion, a motion for directed verdict and on appeal to this Court, defendant has consistently urged suppression of the cocaine, the gun “and all testimony of appellant‘s threats and bribes” as the poisonous fruit of an illegal search. Specifically, defendant contends (1) that, under Michigan law, the full search of defendant‘s person incident to an arrest for a traffic offense exceeded the permissible limits of a protective pat-down search; (2) that, under the interim bail statute,
A.
Defendant concedes that as a matter of Federal constitutional law the search of his person did not offend the Fourth Amendment. United States v Robinson, 414 US 218; 94 S Ct 467; 38 L Ed 2d 427 (1973), Gustafson v Florida, 414 US 260; 94 S Ct 488; 38 L Ed 2d 456 (1973).3 Instead, defendant urges us to hold the instant searches, precipitated by a concededly valid traffic arrest, unreasonable under state law.
Undoubtedly, “a State is free as a matter of its own law to impose greater restrictions on police activity than those * * * [the United States Supreme] Court holds to be necessary upon federal constitutional standards. See, e.g., Cooper v California, 386 US 58, 62 [87 S Ct 788; 17 L Ed 2d 730] (1967); Sibron v New York, 392 US 40, 60-61 [88 S
The Michigan Supreme Court, although having had occasions to comment on Robinson and Gustafson, supra, has never expressly ruled that these Federal cases apply in the factual setting now before us. Cf., People v Stergowski, 391 Mich 714, 724-726; 219 NW2d 68 (1974), People v Moore, 391 Mich 426, 432-435; 216 NW2d 770 (1974), and People v Dixon, supra, at 706-707.
In Stergowski, our Supreme Court affirmed the denial of defendant‘s motion to quash or suppress evidence of heroin found in a search of defendant‘s person. Defendant Stergowski had been lawfully arrested for assaulting a police officer. The arresting officer noticed “‘a large bulge in * * * [defendant‘s] right pocket‘“. 391 Mich at 716. Feeling the bulge, the officer noted that “‘it appeared to have some bullets in there‘“. 391 Mich at 716. He emptied the pocket of its contents:
“‘a large quantity of money, some of it being counterfeit, and four bullets for a 9-millemeter gun and some heroin and a plastic vial, and inside the plastic vial there was 11 tinfoil packs [later found to contain heroin].’ ” 391 Mich at 716.
Although noting the holdings in Robinson and Gustafson, supra, the Michigan Supreme Court ultimately ruled:
“It is unquestioned that defendant was subject to a warrantless search incident to * * * [a] lawful arrest. In People v Tisi, 384 Mich 214; 180 NW2d 801 (1970), the Court said at p 219:
“‘The reasonableness of any search or seizure must be determined as of the time of the search or seizure. In the determination of reasonableness, consideration may be given to the information possessed by the officer. People v Harper (1962), 365 Mich 494 [113 NW2d 808].’
“‘The search is to be tested in light of the information or facts possessed by the officer at the time he made the search‘. People v Danny Williams, 383 Mich 549, 556; 177 NW2d 151 (1970).
“The police had received a report of an individual firing ‘shots‘. They saw defendant carrying what looked to be and was a pistol and ordered defendant to drop the gun. Defendant refused to drop the weapon when ordered and fled from the officers. The officers properly followed him into a house where he tried to hide the weapon but was disarmed. Defendant struck an officer with a metal box. Defendant was lawfully arrested. All these facts justify the body search. It was reasonable and proper. The entire range of search and seizure cases speak to the ‘reasonableness’ of the procedures. In the context of this series of events, the officers’ acts were reasonable.” 391 Mich at 727-728. (Footnote omitted.)
In Dixon, supra, the Supreme Court relied on the prior version of the interim bail statute in effect at the time of defendant‘s arrest,
“We are persuaded * * * that the sense of the statute and its purpose of avoiding unnecessary incarceration of minor offenders can only be served by imposing on the arresting officer (and now, the sheriff as well) the
duty to inform the person about to be jailed of the statutory protection of which he otherwise would probably be ignorant.
* * *
“Any evidence gained in derogation of this statutory right is to be suppressed; no other remedy is as likely to assure its full enforcement and the protection of the citizenry at large from unwarranted and unnecessary inconvenience, embarrassment and risk attendant incarceration for a minor traffic offense.” 392 Mich at 703, 705-706.
Distinguishing Robinson and Gustafson, supra, the Court observed:
“Dixon had already been searched for weapons before even entering the police car. The station house procedures were not intended nor could they be justified as a further search for either weapons or possible fruits of the crime.” 392 Mich at 706. (Footnote omitted.)
In Moore, supra, a police officer arrested defendant “‘for soliciting for immoral purposes‘“. 391 Mich at 432.
“Moore [then] placed his hand in his pants pocket. The officer, believing Moore might be reaching for a weapon, grabbed him and spun him against the side of an automobile. Moore then opened his right hand and a small plastic vial fell to the ground.
“The vial was of clear plastic with a snap-on top of a kind commonly used by pharmacies to dispense medicine. The vial was unlabeled. Inside were 20 small capsules containing white powder. Eighteen capsules were of clear plastic and the other two were red. The capsules lacked the fresh, uniform appearance typical of capsules dispensed by a pharmacy. Immediately upon taking Moore to the police station, the officer conducted a cursory examination of the vial, concluded that the capsules contained heroin, and then arrested Moore on a narcotics charge.” Id. (Footnote omitted.)
“In both Robinson and Gustafson there were motions to suppress and full hearings concerning the reasonableness of the seizure. Moore did not move to suppress and there is no reason on this record to question the reasonableness of the arresting officer‘s belief upon his cursory examination that the white powder contained in the aberrant transparent capsules in the curiously unmarked, transparent vial was heroin.” 391 Mich at 433-434. (Footnote omitted.)
In a footnote appended to this passage, the Court stated in part:
“We express no opinion * * * about the constitutional validity of an examination by the arresting officer of the seized material any more intensive or time-consuming than a cursory examination like those conducted by the arresting officers in Robinson, Gustafson and this case. Cf. People v Trudeau, 385 Mich 276, 279-281; 187 NW2d 890 (1971); People v Roderick Walker, 27 Mich App 609; 183 NW2d 871 (1970).” 391 Mich at 434-435, fn 5. (Emphasis added.)
Further, the Court noted:
“While
Const 1963, art 1, § 11 protects against ‘unreasonable searches and seizures‘, its proviso prohibiting the exclusion from evidence of ‘any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house‘, precludes a construction of the Michigan search and seizure clause imposing a higher standard of reasonableness for searches and seizures of items named in the proviso than the United States Supreme Court has held applicable under the Fourth Amendment. In People v Pennington, 383 Mich 611; 178 NW2d 471 (1970), this Court held the narcotic and
firearms proviso invalid under the Federal constitution only to the extent it would permit receipt of evidence barred under the Fourth and Fourteenth Amendments as construed by the United States Supreme Court.” 391 Mich at 435. (Footnotes omitted.)
B.
As we perceive it, the question defendant frames is not whether as a matter of state constitutional law,
Here, defendant was arrested for a minor traffic offense. He readily complied with the officer‘s signal to stop the car and obligingly permitted the officer to search his person.4 Testing this search in light of the information possessed by the officer at the time he made the search, Stergowski, supra, at 727, we cannot justify this intrusion into defendant‘s inner pockets either as a protective search for weapons or as an effort to uncover evidence of a traffic offense. Once the officer had completed his otherwise proper frisk for weapons, he clearly lacked justification to proceed further.
Under the circumstances of this case, we believe that a sound regard for the policy underpinning the interim bail statute as fleshed out by the Dixon Court (namely, the avoidance of “unwarranted and unnecessary inconvenience, embarrassment and risk attendant incarceration for a minor traffic offense“, 392 Mich at 705-706) requires us
Contrary to the prosecutor‘s suggestion, we do not rule that police are now required “to accept bail on the street“, but that arresting officers, following an external (but fruitless) pat-down for weapons, are obliged to inform a minor traffic offender of his statutory rights and upon arrival at the station house to accept bail (proffered by such
Accordingly, defendant‘s conviction for possession of cocaine and carrying a weapon in an automobile are hereby vacated. His remaining convictions shall nonetheless stand affirmed. The matter is remanded for sentencing anew on the remaining charges.
J. H. GILLIS, J. (dissenting). I respectfully dissent. The majority‘s opinion appears to contradict a long line of well-reasoned precedent and policy.1 Furthermore, it ignores the practicalities and intricacies of legitimate and effective law enforcement. Today‘s holding severely limits an age-old exception to the search and seizure warrant requirement, the right to search incidental to a lawful arrest.2
The majority opinion concludes that a police officer, after effectuating a full custodial arrest, may only “pat down” an arrestee in a search for
The procedure set forth in the majority opinion is analogous to the procedure prescribed by the United States Supreme Court in “stop and frisk” cases.3
However, the policy considerations underlying the search procedures to be employed by police officers in “stop and frisk” cases are readily distinguishable from the policy considerations to be weighed when analyzing search procedures in full custodial arrest cases.
”Terry v Ohio, supra [392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968)], did not involve an arrest for probable cause, and it made quite clear that the ‘protective frisk’ for weapons which it approved might be conducted without probable cause. Id., at 21-22, 24-25. This Court‘s opinion explicitly recognized that there is a ‘distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons.’
” ‘The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v United States, 376 US 364, 367 [84 S Ct 881; 11 L Ed 2d 777] (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v Hayden, 387 US 294, 310 [87 S Ct 1642; 18 L Ed 2d 782] (1967) (Mr. Justice Fortas, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others
nearby, and may realistically be characterized as something less than a “full” search, even though it remains a serious intrusion.
” * * * * An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society‘s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual‘s freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable intrusion upon the sanctity of the person.’ Id., at 25-26. (Footnote omitted.)
”Terry, therefore, affords no basis to carry over to a probable-cause arrest the limitations this Court placed on a stop-and-frisk search permissible without probable cause.” United States v Robinson, 414 US 218, 227-228; 94 S Ct 467; 38 L Ed 2d 427 (1973). (Emphasis supplied.)
The majority concludes that the State of Michigan via the interim bail statute,
The legislative policy underlying the interim bail statute is to avoid the “unwarranted and unnecessary inconvenience, embarrassment and risk attendant incarceration for a minor traffic offense“. People v Dixon, 392 Mich 691, 705-706; 222 NW2d 749 (1974). It does not circumvent the
A police officer has every right to insure that the individual he has arrested does not possess any instrument which could be used as a weapon to harm the officer or effectuate an escape.
To support its presumption that the interim bail statute restricts a police officer‘s ability to search incidental to a lawful arrest, the majority relies upon People v Dixon, 392 Mich 691; 222 NW2d 749 (1974).
However, the Dixon case, supra, is distinguishable from the case at bar. In Dixon, supra, there were two searches, one at the scene of the crime, and another at the station house. The latter search produced the evidence upon which Dixon was convicted. The Michigan Supreme Court concluded that the second search was in violation of Dixon‘s statutory right to bail.
In the instant matter, the search in question was conducted at the scene of the crime by the arresting officer for his own protection. Therefore, the Dixon case is not applicable to the facts in the instant matter.
The majority, while recognizing this factual distinction, extends Dixon to cover the initial search incidental to an arrest in order to shore up what would otherwise be a gaping loophole in the law“.
It should be noted that the Dixon Court carefully distinguished the facts in that matter from the United States Supreme Court cases of United States v Robinson, supra, and Gustafson v Florida, 414 US 260; 94 S Ct 488; 38 L Ed 2d 456 (1973).
“Discovery of the heroin is not validated by the opinions of the United States Supreme Court in United States v Robinson, 414 US 218; 94 S Ct 467; 38 L Ed 2d 427 (1973), and Gustafson v Florida, 414 US 260; 94 S Ct 488; 38 L Ed 2d 456 (1973).
“The Court predicated the right to search there as an incident of the arrest and the need of the officer to protect himself.
“Dixon had already been searched for weapons before even entering the police car. The station house procedures were not intended nor could they be justified as a further search for either weapons or possible fruits of the crime.” Dixon, supra, at 706. (Footnotes omitted; emphasis supplied.)
The Dixon Court restricted its holding so as to render it inapplicable to initial searches incidental to a lawful arrest. The majority‘s abolition of this limitation disregards the fact that the Dixon Court carefully avoided issuing an opinion that conflicted with the holdings of the Robinson and Gustafson cases, supra.
Hence, the majority is attempting to extend the holding of the Dixon case to an area expressly avoided by the Dixon Court. Such an extension is unwarranted and is not supported by the interim bail statute or the Dixon case.
Therefore, I would deem the search conducted in the instant matter a valid exercise of a police officer‘s right to search without a warrant incidental to an arrest.
Notes
“The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” 414 US at 235; 94 S Ct at 477; 38 L Ed 2d at 440-441.
Accord, Gustafson v Florida, 414 US 260; 94 S Ct 488; 38 L Ed 2d 456 (1973).
See Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). It should be noted that “Terry-type” searches are permitted incidental to an investigative stop based upon less than probable cause to arrest. In the instant matter we are dealing with a full custodial arrest.