*1 Hall HALL PEOPLE v v STREET PEOPLE v LEACH PEOPLE Opinion Drugs
1. and Narcotics—Containers—Judicial Notice. practice carrying Police officers are familiar with the narcotics plastic bags. vials and 2. Searches Seizures—Without Warrant—Narcotics—Fur- tive Action—Probable Cause. presence plastic of two containers in the back seat of a van and the defendant’s furtive action of to conceal justify part police them a reasonable belief on the of a officer being permissible that a crime was committed and make search without a warrant. 3. Searches and Seizures—Without a Warrant—Probable Cause. A officer must act on some fact or circumstance or some such information as would create in his mind a reasona- ble and honest belief that the law was violated in order a search and seizure without a warrant. 4. Searches and Seizures—Without Action— Warrant—Furtive Probable Cause. narcotics, A search of a van and seizure of contained in a bottle, though warrant, justified even without a as based stopped cause where officers had the van for violation, officers, shining a traffic one of the while his flash- light seat, bottle, bag in the back saw a clear defendants, seat, one of the in the back threw his coat over the [4] [5] [3] [1] [2] 47 Am 47 Am 47 Am 47 Am 5 Am Jur 5 Am Jur 25 Am Jur Jur, Jur, Jur, Jur, 2d, 2d, Searches and Seizures 19.§ Searches and 2d, Drugs, Searches and Searches and Seizures §§ References Arrest Arrest § § Narcotics and Poisons 44.§ 31; 31; Seizures § for Points Seizures § 18. in Headnotes 14, 16, 18. et seq. 40 op the Court bottle, although suspi- the officer had no reason because to be cious of the bottle and contents from the fleeting glance got objects, of those the fact *2 give objects did was sufficient notice those him the defendant was to believe that to hide the contents from him. by Burns, T. M. P. J.
Dissent 5. Searches and Seizures—Without Warrant—Evasive Action— Probable Cause.
A search without a warrant in order to be reasonable must be gesture”; based on an "evasive action” more than or a "furtive merely throwing jacket defendant’s over a clear and is insufficient a search of defendants’ vehicle without a warrant where the reason the officer had stopped the vehicle was for a traffic violation. Appeal Burén, Anderson, Jr., from Van David J. 7, 1972, Submitted Division March at Grand (Docket 11851.) Rapids. 11849, 11850, Nos. Decided April 28, 1972. Terry Hall, Street,
Michael D. R. and James K. charged possession Leach were marijuana. with unlawful of suppress
Defendants’ motion to granted by quashed evidence an order that also people appeal by the informations. The leave granted. Reversed and remanded. Kelley, Attorney General, Frank J. A. Robert Derengoski, General, Solicitor C William Prosecuting Attorney, people. Buhl, for the J., Before: T. M. Fitzgerald P. Burns, JJ. Danhof, charged J. Defendants were with Fitzgerald, possession marijuana.* unlawful of A motion to suppress evidence as to all the defendants was 335.153;
*MCLA MSA18.1123. Hall Opinion of the Court 5, 1971; hearing March filed on was held on 8, Subsequently, March 1971. trial court en- suppressing an order tered evidence people’s the informations. The quashing appeal by from the is here quashal leave the Court. appeal The to this leading facts are as follows: three defendants were driving The in a Chevro- Paw, let on 1-94 near van westbound Paw Michi- gan, morning 23, at a.m. on the of May 1970. traveling State Police officers opposite direc- tion the van had only noticed one headlight. around, pursued, The turned and stopped the van. While one officers was talk- driver, ing Leach, to the defendant reference was made to lying defendant Hall who was aon seat the back of the van. officer the driver’s side partner van asked his on the other side of *3 the van to check back the seat. The officer shined flashlight seat, in the back observed defendant Hall, and just momentarily plastic saw clear bag and a plastic clear bottle. Almost simultaneous observation, with that defendant Leach in- either advertently or intentionally dropped or threw a jacket over plastic bag the and bottle. The then ordered the car, three defendants out of the removed the jacket, and plastic confiscated the bag and Upon examination, officers, bottle. the for the time, first observed that the and bottle con- tained substance appeared which to them from their previous experience law enforcement to be marijuana.
Defendants were then placed under arrest and were escorted to the police car. One of the officers then returned it, to the van finding and searched more marijuana in a Bufferin bottle in a wooden box.
Defendants were charged posses- with unlawful App op the Court examination preliminary After marijuana. of sion over to bound circuit 1970, they were 14, July on arraigned in the circuit were They for trial. court Thereafter, counsel for the 31, 1970. August court the suppress evidence moved defendants three of the van and the that ground unreasonable be- were marijuana of seizure cause. upon probable not based granted the defend- subsequently court The trial quashed the informa- suppress motion ants’ them. against tions Reeves, People v relied
The court
of the
that
the seizure
finding
merely
was
based
bag and
that,
therefore,
such
suspicion,
general
aon
that
The court reasoned
unreasonable.
was
seizure
un-
this seizure were
followed
arrests which
search and seizure
subsequent
lawful,
that
would
Bufferin bottle
and the
box
the wooden
of
attorney
prosecuting
After
illegal.
also be
Reeves,
the trial court
distinguish
attempted
no such "obvious
there was
that
his belief
stated
this case out
would take
tactic” that
evasionary
Reeves.
holding
undisputed below
It was
vehicle because
defendants’
stopped
lawfully
had
violation
headlight constituted
nonoperative
Further,
undis-
code.
the motor vehicle
the con-
did not see
below
puted
he mo-
when
bag and bottle
tents
flash-
of his
*4
light
in the
them
mentarily observed
to
narrowed
appeal
is
Hence,
on
question
light.
ges-
furtive
the driver’s
as
whether
inquiry
throwing a jacket
dropping or
ture of
cause
probable
the officers
afforded
containers
the van.
as:
can
stated
appeal
issue on
be
The
People
Hall
v
Opinion of the Court
err in ñnding
court
that
Did
trial
the search
in which the defendants
of the vehicle
were travel-
ing
evidence containing
seizure
mari-
were unreasonable?
juana
contend that
people
The
trial court was in
Reeves,
v
People
when
supra, in
error
it relied
motion
granting the defendants’
to suppress
argued
It
that
evidence.
crucial distinction is
the officers in Reeves
at
that
no time were ob-
by
served
the defendant when he made his actions
suspicious.
termed merely
which were
To the con-
in
case defendant
trary,
this
Leach made a volun-
motion to
tary and deliberate
conceal
the seized
objects
while
was conscious that he
being
police
by
observed
officer. It
is the people’s
position
directly
that
this case falls
within the
Evans,
scope
1App
Lewis,
(1934).
People v
suspicion, plastic bag might not, contain marijuana. They had before the sei- zure, anything observed Hence, the containers. say is fair to prior to the time that jacket was thrown or dropped containers, on the probable had no suspect that a crime was or committed to search the auto- mobile.
A number of cases have considered the furtive gestures or evasive actions of defendants while under observation properly as considered in determining whether cause existed. The Evans, principal cases People v analyzed (1966). After an examination of those cases, 7): Evans (p concluded *5 App 329 40 Mich 334 Opinion of the Court upon to be based the theory seem "All of these cases discovering that he is person, when a action, police, obviously takes evasive by the observed to believe that he gives the reasonable he committing felony a or is in the has committed or misdemeanor, committing thereby justify- process of ing immediate search and seizure.” Wilson, also, See, Charles v (1970). cases particularly A series California of the basis "evasive action” enlightening as to the In People Superior gesture” doctrine. or "furtive 807; Rptr 3 Cal 3d 91 Cal County, of Yolo Court officer, 729; chasing while 478 P2d vehicle, down passenger bend speeding observed sitting position as the then resume a normal driver the vehicle pulled over. The exited driver The held that approached the officer. Court the cause to search probable the officer lacked vehicle, observed and seized marijuana door passenger officer on the opened after The properly suppressed. side of vehicle Beto, Supp 273 F cited Grundstrom v Court (ND 1967), Tex, proposition that a search for when inci- contraband is reasonable conducted arresting only to a traffic when the dent violation than the occurrence other officer observes some leads the reasonably traffic offense itself which possesses the motorist officer to belief then went on to discuss contraband. reasoning of code cases which those predicated has been cause to a vehicle vehicle; occupant of gestures” of an such "furtive said, at 817-818: pp the Court course, theory, although "The is that actually any contraband from outside does see timing vehicle, may reasonably infer from the People v Hall Opinion of the Court occupant’s movements that the direction latter is possession of contraband which fact in he is endeav- viewpoint actor, oring From the to hide. *6 psychological on sound theory rests basis: 'It is a impulse confrontation to hide immediately natural any Jiminez, (People 671, App v 143 Cal contraband’ 2d 674; 68, [1956]). posit 70 We can 300 P2d that sudden concealment, flight at like efforts from the scene of a crime, may expressions guilt. of well be consciousness of hand, may the other the same motion On an person’s spectrum in fact have entirely purpose: recognized 'It innocuous is that a may reasons for concealment run the whole legitimate from the most motives the most Weitzer, (People 274, 269 App 292; heinous’ v Cal 2d 75 318, Rptr [1969]). Cal 330 difficulty is that from viewpoint "The observer, gesture an innocent can often be mistaken for must guilty only perceive movement. He not gesture must accurately, interpret he also it in accord- ance with the actor’s true infrequently Many if intent. But words are not ambiguous, gestures are even more so. nonspecific, wholly are assigned can be meaning only in their context. Yet the may observer quite view that context otherwise from the actor: not only different, vantage point is his may even have approached preconceived the scene with a notion—con- sciously pected potential subconsciously—of gestures or what he ex- expected to see and what he them to mean. The misunderstanding in such a situation is obvious. danger "It requires is because of this the law
more than gesture’ a mere furtive proba- to constitute ble cause to search or to arrest. The United States Supreme Court recently reaffirmed this rule in the case York, 40, of v 66-67; 1889, Sibron New 392 US 88 S Ct (1968): 1904; 917, 20 L Ed 2d 937 'deliberately furtive flight actions and at approach strangers of or law strong rea, are indicia of mens and when cou- pled speciñc with knowledge part on of the officer relating suspect crime, they to the evidence of proper factors to be considered in the decision to make (Italics added.) an course, arrest.’ knowledge, That of may be derived from the usual twin sources of informa- App 329 336 of Court California, observation; stating rule for tion and 728, App 732; 193 2d Tyler, Cal 14 People v ’As 610, declared: it is informa- Rptr 612 Cal suspicious police officers or the known to tion ordinary gesture into a turn which circumstances one, equally clear in this state that in the furtive suspicious or other circum- information absence of * * * is not sufficient stances, gesture alone a furtive Impala, Chevrolet (Accord, People Cal v One (Footnote [1963])” 18, 20; Rptr omit- 33 Cal App 2d added.) ted; emphasis quite California case comes close An later even situation the case before the fact approaching Torralva, 17 Cal 3d this Court. In (1971), the defendant had 686; Rptr 94 Cal after he possession marijuana convicted been having license pulled plates. over for had been *7 a fall arresting officers saw box when The the of his car. pulled down visor the defendant noticed that the box contained of the officers One substance, that time could not tell but at he brown the grabbed quickly it was. The defendant what back; to his then tried it behind he and stuck box the driver’s seat it in the back behind stick said, You can’t do this.” illegal "This is search. an then box, marijuana, the was The which contained 691-692): (pp The Court said seized. fall present "In case the officers saw a box the As he pulled visor of the car. appellant down the when it but contained a brown substance
bent over noticed it officer tell what was. The that time he could not at testified it [appellant] quickly grabbed 'He [the box] back, stick it in the back his tried to stuck behind said, illegal is an "this the driver’s seat behind ’ * * * then do this.” The officer You can’t search. box, the contraband. which contained seized who of an officer we not the case "Here do have looking arm or speculates that the of an movement attempt movement, in an guilty is made the shoulder People v Hall op the Court object seen, which the to conceal officer had never speculates Then speculates exists. the officer but further object that have to is contraband. Here the did not officer speculate meaning as to the of any appel- apparent was clear appel- lant’s movements. It that to attempting lant seize the box was and hide it from prevent learning him from the officer the the nature of Furthermore, contents. did not have to speculate being an object as to whether there was actually object. thing
hidden. He saw the The only officer could substance obtained cause.” be sure was nature brown * ** box. The contraband was by search lawful based reasonable added.) (Emphasis case, If rule is applied the California to this that is, gesture that mere furtive is not sufficient constitute a search with- warrant, out a then this case could be justified only if defendant’s gesture furtive is along considered with the fact familiar with practice of carrying narcotics in plastic vials bags, especially marijuana. While there no testimony which shows they were familiar practice with that or that they pursuant acted in this case to a knowledge of practice, the presence of the two containers and the furtive action of to conceal them justify a reasonable belief on part of a police officer that a crime committed. trial court erroneously suppres- based the sion order on this Court’s decision in *8 Reeves, (1970). 23 Mich App case, In that police observed the defendant running from a hotel in Detroit and entering a taxicab which was parked in front of the police hotel. The approached the cab and saw defendant remove an envelope from his stocking and it on throw the floor of the cab, cab. The opened the re- App 329 Opinion of the Court that and discovered con- envelope, the moved ruled that the search This tained heroin. unreasonable, be- principally were and seizure stopping cause for the probable there was no addition, (p In the Court said initially. defendant authority 188), directed "we the. by the offi- the mere observance proposition that taking packet a out his defendant cers the the it on the floor of taxicab stocking dropping and cause to an ar- make gives the officers rest”. parallel a between court found
The trial Reeves "star- facts in in case and facts this stating: tling”, dropping jacket a "I see between no difference and the removal of an plastic bag bottle throwing person’s it on envelope sock from certainly general one creates a Each
floor of taxicab. suspicion. point in particular the officer could not "But at this grounds to way testify he had reasonable any that posses- anyone in this vehicle was that
believe drug. that It would therefore follow of a narcotic sion on a the seizure of general specific any information suspicion, but without it, be an unreasonable which would would and seizure.” reason
Reeves principal distinguishable. the utter lack in that case was for the decision the taxicab stop for the probable cause However, it is conceded place. first in this case stopped defendants police lawfully that they what they position in a observe were did. in Reeves is that major
The second distinction defend- was no evidence to indicate there stocking and envelope from his ant removed *9 People v Hall 339 op the Coukt it on of the cab threw the floor after he had seen approaching the officers and in order to conceal envelope hand, from them. On the other there support to proposition was evidence here dropped defendant Leach or threw jacket his the clear only after proceeded one the officers had to shine his flashlight van; the back of the into consequently, strong there existed a inference that the defendant Leach was to conceal those items from of the the view officer.
The rule in this state is that in order warrant, and seizure without a an officer must act some fact or circumstance or upon some such information as would create in his mind a reasonable and honest belief that the law was Goss, People v 524, violated. 246 Mich 525- (1929). 526
The question for this decide, then, or whether officer in this case acted some such fact or circumstance. Another way of stating this question is whether or not under all circumstances, the search and seizure in this People Gonzales, case were reasonable. 356 Mich (1959). Evans, supra, and the opin- cases cited in that ion, indicate that the Michigan courts also require something more than a mere "evasive action” or Kuntze, "furtive gesture”. In People v respond defendant failed to to the signals patrol car, of a the officers saw two of the defendants bend forward in what seemed to them be effort to stuff an object under the front seat, and spots blood and smears were noticed on the shoulders and passengers. backs two of the Lewis, supra,
In the defendant reached into his pocket if going as gun; exigency App 329 Burns, by T. M. P. J. Dissent pro- officer’s search which justified occasion Ev- Finally, instances. both weapons duced had seen ans, arresting itself, *10 rapid late very at a walk at proceeding defendant him crouched found be- subsequently night an obviously in evasive receptacle hind trash action. a mere "evasive action” or than there more
Was to make the in order officer’s gesture” "furtive Court? this before search reasonable no suspi- had reason be Although plastic bottle and the of the contents cious got fleeting glance he of those plastic bag from the them, top fell jacket objects before objects was those sufficient that he did notice fact to believe that defend- give him to hide the contents ant Leach was him. from finding of the trial court
The decision granting was unreasonable officer’s search the evidence was suppress motion to defendants’ error. reversible
Reversed and remanded. J.,
Danhof, concurred. (dissenting). I am in accord Burns, T. M. P. J. there must be with the "California Rule” that gesture” or "furtive more than "evasive action” police. by make a search in order to reasonable bag throwing a clear jacket over Merely is, justify insufficient opinion, my a search of defendants’ vehicle. whether, under must Michigan
In we determine circumstances, was reasona- all of the search reasonable, opinion that my To held it is ble. be than a something more must observe gesture”. "furtive v Hall Burns, by Dissent T. M. P. J.
In the instant case officer saw one of the drop jacket defendants a clear I a clear bottle. cannot see how that action alone could a search of defendants’ vehicle.
Had acting defendants been suspiciously or had they stopped something been other than a violation, traffic then the action of covering the jacket, articles with a when coupled with the circumstances, surrounding might justify the offi- Here, however, cer’s search. there is nothing to suspicious make the officer except the action of dropping jacket over the containers. The subse- quent was, therefore, unreasonable.
I vote to affirm the decision of the trial court.