People v. Jackson
332 N.W.2d 564
Mich. Ct. App.
1983
Check Treatment

*1 1983] Jackson v JACKSON PEOPLE 1982, 13, at Detroit. Decided December 63223. Submitted Docket No. 24, appeal applied for. February 1983. Leave weapon. charged carrying a concealed was Karl Jackson suppress of Detroit in Recorder’s Court moved charge on pistol the basis of which formed of the admission illegal through search it had been obtained the basis Ravitz, J., granted motion to C. seizure. Justin and appeals by prosecutor The suppress the case. and dismissed granted. Held: leave handbag which police properly the canvas lawful arrest carrying time of defendant’s at the was purposes for the offering engage of a female the services of defendant’s within the area prostitution. The was officer, noting upon that the hand- control and feeling heavy within unusually and without a handbag, to search safety. his own in order to insure warrant remanded. Reversed and J., since the hold that He would dissented. and the defendant was in the justify- handcuffed, "exigent circumstances” there were no He would a warrant. ing without the search of the affirm. Clearly Suppression — Appeal — Erroneous Rul- of Evidence 1. ings. ruling Appeals a trial court’s will not disturb The Court [1] [2, 68 Am Jur [4] [5] Modern status of 5 Am Jur 4 Am Jur 68 Am Jur 68 Am Jur seizure made without lapse 19 ALR3d of time 2d, Appeal 2d, Appeal 2d, 2d, 727. References 2d, between, Searches Searches and Searches and Seizures §§ rule and warrant after .lawful or difference in and Seizures § Error 738. for Points in Error 268. validity Seizures §§ § 44. Headnotes places nonconsensual 6. 37, 92, of arrest 93. as affected and search. search and ruling motion to unless such is found to be Weap- — — 2. Searches and Seizures Search Pursuant to Arrest *2 ons. officer, police pursuant may A to a lawful search the person person’s or the arrested area within the weapons things might control for or other be used to escape purpose assault the officer or effect an the securing person might evidence which the arrested otherwise destroy; person’s the area within the arrested control is the might person gain possession area from which such weapon or destructible evidence. Weap- — — 3. Searches Seizures Search and Pursuant to Arrest ons. officer, police pursuant misdemeanor, A to a lawful arrest for a handbag by person carried the arrested where handbag unusually heavy handgun is and the felt; suppress inside the is it is erroneous to handgun admission of the found in the under such circumstances, since the officer had the to search person’s weapons the area under the arrested control for safety. insure the officer’s — Michigan — 4. Constitutional Law Searches and Seizures — Constitution Firearms. Michigan specifically Constitution does not bar from evidence any by curtilage firearm seized officer outside the any house; dwelling accordingly, Michigan Constitution provide greater protection respect cannot be said to with provided searches by and seizures of firearms than are (Const 11). 1963, federal constitution art by J. Exigent — — 5. Searches and Seizures Circumstances Search Weapons. — Pursuant Arrest "exigent permitting There are no circumstances” a search with- out lawfully a warrant of a carried one who is possession arrested where the has been removed from person, person of the arrested arrested has been hand- cuffed, person and the crime for which the is arrested is such possibility might destroyed, there is no that evidence handcuffing since the and removal of the from the person danger of the arrested eliminates to the Opinion circumstances, arrest; making such a search under officers per unreasonable. warrant se with.out General, Louis J. Kelley, J. Attorney Frank Cahalan, L. William General, Caruso, Solicitor Wilson, Dep- Reilly Edward Prosecuting Attorney, Solak, L. Andrea Chief, Appeals, and Civil uty people. for the Prosecuting Attorney, Assistant Hall, for defendant. Mark R. Cynar, P.J., J. and N. Kaufman

Before: Mackenzie, JJ. car-,

Mackenzie, charged Defendant was 750.227; MCL MSA pistol, a concealed rying A motion pretrial 28.424. through illegal search and obtained pistol,

seizure, and the case was dismissed. granted *3 prosecution’s application granted This Court delayed appeal. for ruling a trial court on a

This Court will reverse ruling if the only to evidence motion example, People v See, for 240, 244; 306 NW2d 465 Bandy, App 105 Mich it was that defendant disputed Here not officers for lawfully by police arrested the services of a offering engage misdemeanor of prostitution, for person purposes female 28.704(1). of his 750.449a; MSA At the time MCL arrest, handbag. defendant was a canvas carrying that he took arresting officer testified defendant, unusu- it was handbag from noted inside, then heavy, felt the of a ally The officer gun. and discovered the opened the him. frisked then handcuffed defendant and arrested, it is reasonable person When a is arrested person officer to search the the arrested 123 Mich or the area within his immediate control to secure or weapons things might other be used to escape assault the officer or effect an and to secure person evidence of the crime which the arrested California, Chimel v might destroy. otherwise 752, 763-764; US 89 S Ct 23 L Ed 2d 685 context, In this the area within the arres- tee’s immediate control is the area from which the might gain arrestee weapon In United destructible evidence. 395 US 763. Robinson, States v 218, 235; US explained: "A officer’s determination as to how and where person suspect whom he has arrested necessarily quick judgment ad hoc which the require Fourth Amendment does not to be broken down in each analysis instance into an step each in the authority person search. The lawful custodial to search the incident upon while based the need to evidence, disarm and to discover depend does not what a court particular later decide was the probability in a arrest weapons situation that or evidence upon would in fact A person be found suspect. suspect custodial arrest of a probable based on cause is a reasonable intrusion under the Fourth Amend- ment; lawful, being intrusion a search incident requires justification. no additional It is the fact of the lawful arrest which authority establishes the search, and we hold that in the case of a lawful custodial arrest a full person search of the only is not an exception to requirement the warrant of the Fourth Amendment, but is also a 'reasonable’ search under that Amendment.” and the trial court relied upon *4 Chadwick,

United States 1; 2476; 433 US 53 L Sanders, (1977), Ed 2d 538 Arkansas v US S Ct In Chadwick, defendants were arrested when a Opinion of Court indicated that a footlocker police dog trained across the coun- transported defendants then reclaimed contained con- a train and try The declined to create an Court substances. trolled was analo- luggage searches which for exception automobile searches. The exception gous to that, luggage, like an automo- noted while mobile, of bile, greater expectation highly luggage than for for the contents exists privacy empha- The Court of an automobile. the contents in Chadwick could not be that the search sized it because took incidental justified agents an hour after federal than more place long the footlocker and control of exclusive gained In San- custody. securely were after defendants holding in previous its ders, reiterated the Court not that the state had Court noted Chadwick. being incidental the search as attempted justify out that pointed to a lawful in the trunk of had been luggage riding and so defendant was in which automobile immediate control. not within Sanders, 11. fn p Belton, 453 US 454, 459-460; 101 York v New

In held: the Court 2860; 69 L Ed 2d S Ct apply a court will person cannot know how "When a situation, that recurring principle to a factual a settled scope of his constitutional person cannot know the protection, nor can a scope of his policeman know established authority. the Chimel case While beyond the stray may not incident to an arrest search area within the arrestee, of the control 'the area workable definition courts have found no when the arrestee’ immediate control of within the automobile of an arguably includes the interior area reading occupant. Our recent and the arrestee is its inside generalization that articles suggests the cases com- passenger compass relatively narrow *5 Opinion of the Court in partment generally, of an automobile are fact if even inevitably, not might within 'the area into which an arrestee grab in weapon reach order to a or evidentiary Chimel, 395 US 763. In order to establish the ite[m].’ category requires, workable rule this cases we read Chimel’s definition of the may limits of the area that be light generalization. in of that Accordingly, we policeman hold that when a has made a lawful custo- automobile, occupant dial of an may, arrest of he contemporaneous incident of that passenger compartment of that automobile.

"It from this police follows conclusion that also examine the contents of containers found passenger compartment, within the if passenger compartment arrestee, is within the reach of the so also (Footnotes will containers in it be within his reach.” omitted.)

The Belton Court emphasized that neither Chad- wick nor Sanders involved a search incidental Belton, reliance on Chad- lawful arrest. In view of wick Sanders by defendant and the trial court misplaced. contends that his hand- bag passed his beyond immediate control when the arresting officers took it from him. Defendant emphasizes that he was outnumbered the offi- present cers and was handcuffed after shortly However, was taken. in defendant automobile, been removed from the con- yet trolled substances found zipped pocket into a jacket which defendant passenger had left compartment properly automobile were seized. See 453 US fn 5. The here was as much within defendant’s control in Belton was within the immediate as the jacket control of the in that case.

Moreover, both Robinson Belton emphasized the need for a simple rule which could readily applied by officer confronted the field Here defendant rea- problem. an immediate that he unlikely it would be would be sons back from two grab able gun, particularly and seize the since he officers after shortly was handcuffed adopt the officers. We cannot taken requirement if we adhere to the reasoning rule stated in Robinson and Bel- simple, workable *6 determine, ton. Defendant would have us on a basis, precautions whether taken case-by-case in safety officers to ensure their were reasonable of the arrestee’s interests. Belton light privacy test based on in objective proximity mandates of the search to the space time and rather subjective appellate than a test based on an court’s appraisal posed of the likelihood that defendant to the In of danger officers. view the trial grant court’s decision to defendant’s motion to clearly erroneous. argues Defendant also that the Michigan Consti- greater tution than provides protection the federal constitution in the area of searches and seizures that the trial court’s decision should be sus- tained as a matter of state constitutional law. However, security state from un- guaranty reasonable searches and seizures is contained in 1, 11, Const art which states: provisions "The of this shall not be construed section any proceeding any bar from evidence in criminal firearm, bomb, drug, narcotic dangerous weapon, explosive other by peace

seized officer outside the curtilage any dwelling house in this state.” is, course, provision prevent

This ineffective to application People rule. v exclusionary federal 383 Pennington, Mich 178 NW2d 471 However, provision formulation prevents 123 423 430 Mich Kaufman, J. J. N. to the facts of exclusionary applicable rule

state this case. that the trial court’s decision

Finally, we note rule upheld not be under the stated Dixon, Mich In NW2d that, case, the Court held where a defendant misdemeanor, for a evidence had been arrested in an search at the station inventory seized suppressed inventory should have been because an unreasonable in view of defendant’s search was However, statutory to immediate bail. emphasized reasoning its would not to a apply search incident lawful arrest. 706-707. proceedings Reversed and remanded for further opinion. consistent with this P.J., Cynar, concurred. (dissenting). J. I

N. dissent because the trial court’s decision was not danger.1 officer was not He had *7 arrested the defendant and taken him from away Thus, the car. although the officer had to remove the canvas sack from the grip defendant’s hand- him, cuff removing the sack alone eliminated the danger. There was also no chance that evidence of the crime would be destroyed.2 The defendant was arrested for soliciting; physical there was no evi- dence capable "exigent of destruction. The circum- exceptions stances” to a search without a warrant are factually unsupported. When the officer felt sack, outline of the in the he should have gotten a search warrant on this strong probable warrant, cause. But without and absent exi- 1 California, 752; 2034; Chimel v 395 US 89 S Ct 23 L Ed 2d 685 2 California, supra. Chimel v 431 Jackson circumstances, se unrea- per this search gent sonable. cases, notably is correct that some majority cases, uphold

the car and container search would search.3 resting an admission of evidence this cases, though, stretch the need for an imme- Those vigor- diate search too far and were decided over view, I dissenting ous dissents. believe Justice Brennan New York v expressed by Belton, 463; 2860; 69 L Ed 2d 453 US purpose "exigent is true to the legal A substantial foun- exception. circumstances” view, judge dation exists for this and a trial should the rule as permitted interpreted follow Following view. this view is not "dissenting” goes protect erroneous further I rights. delicate would therefore order and dis- suppression consequent affirm the weapons charge. missal of the 454; 2860; 3 E.g., 69 L Ed 2d New York v 453 US S Ct car). (1981) Chadwick, (jacket But see United States v 433 US S Ct