PEOPLE V LONG
Docket No. 64416
Supreme Court of Michigan
June 14, 1982
413 Mich. 461
Argued January 6, 1981 (Calendar No. 5). Certiorari granted by the Supreme Court of the United States on October 12, 1982.
REFERENCES FOR POINTS IN HEADNOTES
[1, 2, 5] 68 Am Jur 2d, Searches and Seizures §§ 33, 58, 84, 103.
[2, 6-9] 68 Am Jur 2d, Searches and Seizures §§ 23, 39.
[3] 68 Am Jur 2d, Searches and Seizures §§ 2, 35.
[4] 29 Am Jur 2d, Evidence § 415.
68 Am Jur 2d, Searches and Seizures §§ 16, 34, 57, 85, 96, 106.
Lawfulness of nonconsensual search and seizure without warrant, prior to arrest. 89 ALR2d 715.
[6-8] 68 Am Jur 2d, Searches and Seizures §§ 16, 85, 96.
[7] 68 Am Jur 2d, Searches and Seizures § 40.
[8] 68 Am Jur 2d, Searches and Seizures § 103.
[9] 68 Am Jur 2d, Searches and Seizures § 88.
[10] 68 Am Jur 2d, Searches and Seizures §§ 34, 57, 106.
Lawfulness of “inventory search” of motor vehicle impounded by police. 48 ALR3d 537.
In an opinion by Justice Kavanagh, joined by Justices Williams, Levin, Fitzgerald, and Ryan, the Supreme Court held:
The search of the defendant‘s car without a warrant was proscribed by the Fourth Amendment and the Michigan Constitution, and the evidence obtained pursuant to the unconstitutional search should have been suppressed.
1. There is a narrowly drawn authority to permit a reasonable search for weapons, without a warrant, for the protection of a police officer, where the police officer has reason to believe that he is dealing with a person who is armed and dangerous, regardless of whether he has probable cause to arrest. Only a limited pat-down search of a person suspected of criminal activity is authorized, rather than the search of the area around the person. Without deciding whether the rationale of a protective search can ever be extended to the area within the suspect‘s reach, the Supreme Court concluded that under the facts of this case there is no justification for such an extension of the case law.
2. When the search of the interior of the automobile was conducted, the defendant was standing at the rear of the vehicle under the control of one deputy and the other deputy was between the open door of the vehicle and the defendant. The deputies had conducted a pat-down search of the defendant and had found no weapons; any weapons which might have been hidden in the car, after the deputies picked up the knife, would have been out of the reach of the defendant, and thus did not pose a danger to the deputies.
3. A search and seizure without a warrant is unreasonable per se and violates the Fourth Amendment of the United States Constitution and the state constitution unless it is shown by the prosecution to be within one of the exceptions to the rule. The protection of police officers and other persons nearby cannot justify the search of the automobile in this case, and the prosecutor does not contend that the search can be justified by other exceptions to the constitutional requirement of a warrant. Therefore, the search of the interior of the vehicle was proscribed by the Fourth Amendment and the Michigan Constitution, and the evidence obtained by the search should have been suppressed.
4. The people seek to justify the search of the trunk without a warrant either as a search to inventory impounded property
The defendant‘s conviction is reversed.
Chief Justice Coleman, dissenting, rejected as unpersuasive the distinction between a limited pat-down search of the person and a search of the area around the person where the police officer has reason to believe that the person is armed and dangerous.
1. The purpose of a limited protective search for weapons is not to discover evidence of crime, but to allow the police officer to pursue his investigation without fear of violence. Other courts have upheld protective searches of the interior of a vehicle while the occupants were detained outside it because they were not under arrest and could have returned to the vehicle when the encounter was ended. In this case, the defendant was entering the vehicle to retrieve the registration when the deputy sheriff observed a knife on the floor of the vehicle. Accordingly, a claim that a protective search is permitted cannot be summarily rejected on the ground that there was no danger. If the possibility that a suspect will re-enter his vehicle after an encounter with the police ends is sufficient to support a protective search, the fact that he is attempting to enter the vehicle while the confrontation continues is also sufficient.
2. In this case, the sheriff‘s deputies were confronting a person suspected of speeding, whose car ended up in a ditch. The defendant met the deputies at the rear of his car. He failed to answer their questions, began walking back toward the door of his car while he appeared to be under the influence of something, and acted scared. These observations and the knife on the floor of the car gave the officers reason to believe they were dealing with an armed and dangerous person. A reasonably prudent officer would be justified in believing that he was in danger; therefore, the officer was permitted to conduct a protective search.
3. Considering all the circumstances, including that one weapon had already been found and that the officer saw a leather pouch large enough to hold another weapon under the driver‘s armrest, the officer could have reasonably concluded that safety required further investigation. Lifting the armrest
4. Raising the armrest in a protective search of the interior of the defendant‘s automobile is not an unreasonable search prohibited by the Fourth Amendment or by the state constitution. Then the contents of the open pouch, a plastic bag containing marijuana, were in the plain view of the officer, who properly seized the contraband and arrested the defendant. Review of the other issues raised by the defendant discloses no error requiring reversal.
Justice Moody, concurring in the result, agreed generally with the analysis of Chief Justice Coleman in her dissent. However, he would hold that admission of the marijuana found in the defendant‘s trunk into evidence was error requiring reversal.
1. The defendant, at the request of the police, was in the process of entering his automobile to obtain his registration and insurance certificates when an officer saw a knife in plain view. This discovery reasonably led the officers to search the defendant. It was reasonably appropriate and consistent with the principles announced by the Supreme Court of the United States for the officers thereafter to conduct a brief search of the interior of the automobile for weapons, limited to areas in which a weapon could be concealed, yet be accessible. The subsequent discovery of the marijuana, visible under the driver‘s armrest, provided probable cause for the arrest and was admissible as evidence.
2. The search of the trunk of the automobile and the seizure of the marijuana in it without a warrant was unreasonable and violated the Fourth Amendment to the United States Constitution. The people sought to justify the seizure as having been made pursuant to a valid inventory search following the defendant‘s arrest and the decision of the police to impound the automobile. However, unlike the situation in the case in which the Supreme Court of the United States upheld a valid inventory search, in this case the defendant was present at the time of the asserted impoundment, he was not asked if he wished an inventory of the vehicle‘s contents to be conducted, and the site of the impound lot was secure. In addition, the police had no
94 Mich App 338; 288 NW2d 629 (1979) reversed.
OPINION OF THE COURT
1.
There is a narrowly drawn authority to permit a reasonable search for weapons, without a warrant, for the protection of a police officer, where the police officer has reason to believe that he is dealing with a person who is armed and dangerous, regardless of whether there is probable cause to arrest; only a limited pat-down search of a person suspected of criminal activity is authorized, rather than the search of the area around the person (
2.
There is no justification to permit a protective search of the interior of an automobile for weapons where the defendant, who had been stopped by a sheriff‘s patrol for speeding, was standing at the rear of the automobile under the control of one deputy sheriff and another deputy was between the open door of the automobile and the defendant, the deputies had conducted a pat-down search of the defendant and had found no weapons, and the deputies had seized a knife which they had seen on the floor of the automobile; any weapons which might have been hidden in the car would have been out of the reach of the defendant, and thus did not pose a danger to the deputies (
3.
A search and seizure without a warrant is unreasonable per se and violates the Fourth Amendment of the United States Constitution and the state constitution unless it is shown by the prosecution to be within one of the exceptions to the rule (
4.
A search of the trunk of a defendant‘s automobile, and seizure of
DISSENTING OPINION BY COLEMAN, C.J.
5.
The purpose of a limited protective search for weapons without a warrant is not to discover evidence of crime, but to allow a police officer to pursue his investigation without fear of violence; therefore, it is unpersuasive to distinguish between a limited pat-down search of a person and a search of the area around the person where the police officer has reason to believe that the person is armed and dangerous (
6.
A claim that a protective search of the interior of a defendant‘s automobile for weapons is permitted cannot be summarily rejected on the ground that any weapon was out of the reach of the defendant and presented no danger where the defendant, who was stopped by a sheriff‘s patrol for speeding, was entering the vehicle to retrieve the registration when one of the deputies observed a knife on the floor of the driver‘s side of the car; the fact that the defendant was attempting to enter the vehicle while the confrontation with the deputies continued is sufficient to support a protective search without a warrant (
7.
Two sheriff‘s deputies had reason to believe that they were in danger and, therefore, were permitted to conduct a protective search of the interior of the defendant‘s automobile for weapons where the defendant, who had been stopped by the deputies
8.
Raising the armrest of an automobile in a protective search of the interior of an automobile is not an unreasonable search prohibited by the Fourth Amendment or by the state constitution where one weapon had been found in the automobile, which was stopped for speeding by a sheriff‘s patrol, and one deputy sheriff saw a leather pouch large enough to hold another weapon under the driver‘s armrest; lifting the armrest was a minimal intrusion into the defendant‘s expectation of privacy in the automobile which would permit the deputy to investigate whether the contents of the pouch could be inferred from its outward appearance, or by patting down or frisking the pouch (
9.
Two deputies on a sheriff‘s patrol acting without a search warrant properly seized marijuana from a defendant‘s automobile, which had been stopped for speeding, where the deputies had seized a knife which they had seen on the floor of the automobile, conducted a limited protective search of the interior of the automobile, and raised the armrest to investigate an open leather pouch in plain view which contained a plastic bag of marijuana (
CONCURRING OPINION BY BLAIR MOODY, JR., J.
See headnotes 5-9.
10.
Seizure of marijuana without a warrant from the trunk of an automobile by the police at the scene of an arrest after deciding to impound the vehicle cannot be justified on the ground that the seizure was made pursuant to a valid inventory search where the occupant of the vehicle was present at the time of the asserted impoundment and was not asked whether he wished an inventory to be made, the impound lot at which the vehicle would be stored was secure, and no departmental policy
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Judy H. Hughes, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General (Prosecuting Attorneys Appellate Service), for the people.
Vlachos, Jerkins & Hurley and James H. Geary for defendant.
KAVANAGH, J. The defendant, David Kerk Long, appeals his conviction of possession of marijuana. He contends that evidence of the marijuana found in the interior and trunk of the automobile he was driving should have been suppressed as the product of unconstitutional searches. We reverse.
Shortly after midnight on August 25, 1977 while Deputies Howell and Lewis of the Barry County Sheriff‘s Department were on routine road patrol, they observed a car traveling past them in the opposite direction at an excessive speed. They turned their vehicle around and pursued the speeding vehicle. They saw the vehicle make a left turn, proceed down a side road, then swerve. The vehicle came to a stop with the front of the car in a shallow ditch and the back of the car on the roadway.
As the deputies approached, the defendant, the only occupant of the car, got out of the car, leaving the driver‘s side door open, and met the deputies at the rear of the car. Deputy Howell asked the defendant to produce his driver‘s license. The defendant made no response. The deputy repeated his request, and the defendant produced his license. When asked for his vehicle registration and proof of insurance, the defendant again made no
The deputies followed the defendant. As they approached the open door, the deputies saw a closed folding Browning knife on the floorboard of the driver‘s side.1 The defendant was told to halt and put his hands on the roof of the car. He did. One deputy picked up the knife while the other deputy conducted a pat-down search of the defendant, which produced no weapons.
Deputy Howell then shined his flashlight into the front seat of defendant‘s car to search for other weapons and saw “something leather” under the armrest. He knelt in the vehicle, lifted the armrest and observed an open leather pouch containing a small plastic bag of what appeared to be marijuana. According to the testimony of the deputies at trial, Mr. Long was standing by the rear of the car under the control of Deputy Lewis during Deputy Howell‘s search.
Deputy Howell removed the pouch and showed it to Deputy Lewis. The defendant was arrested for possession of marijuana. The interior of the car was searched for additional contraband, and the glove compartment was searched for the registration certificate. Neither was found.
The deputies decided to impound the car. Deputy Howell asked the defendant if he had a trunk key. The defendant stated that he had no key. The deputy, noticing that the trunk lock had been punched out, used his pocket knife and reached in
“Number one, because I already found marijuana, suspected marijuana, in the interior of the car, there may have been more in the trunk. Secondly, I check them for valuables. I do.”
Upon opening the trunk the deputy found two paper bags, which were split open, containing approximately 75 pounds of marijuana.
The defendant was handcuffed, placed in the police car and taken to the sheriff‘s department along with the towed car.
At the preliminary examination and at trial the defendant moved to suppress evidence of the marijuana obtained through the searches of the interior and trunk of the car. These motions were denied and the defendant was subsequently convicted of possession of marijuana.
On appeal, the Court of Appeals affirmed the defendant‘s conviction. 94 Mich App 338, 350; 288 NW2d 629 (1979). That Court held that “Deputy Howell‘s precautionary lifting of the front seat armrest prior to allowing defendant to re-enter his automobile was constitutionally valid as a protective search under the Terry doctrine.”2 94 Mich App 344. The Court of Appeals found “no reversible error in the trial judge‘s determination that the deputies’ inspection of the trunk was made pursuant to a proper inventory of the type approved by Opperman3 and its progeny“. 94 Mich App 350.
The first issue on appeal is whether Officer
In Terry, the United States Supreme Court authorized a limited warrantless protective search of the person during an investigatory stop. Prior to the stop, the police officer had observed two men involved in suspicious behavior for 10 to 12 minutes. The officer suspected the two men of “casing a job, a stick-up” and considered it his duty to investigate further. 392 US 6.
The Court held “that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime“. Id., p 27. The test set forth by the United States Supreme Court to justify the warrantless protective search “is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger“. Id.
The limited authority to search was emphasized by the Court when it said “[t]he sole justification of the search * * * is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other
The officer‘s entry into the vehicle cannot be justified under the principles set forth in Terry. Terry authorized only a limited pat-down search of a person suspected of criminal activity. That case did not authorize the search of an area.5
At the time the search was conducted, the defendant was standing near the rear of the vehicle under the control of Deputy Lewis. Deputy Howell was positioned between the open door of the vehicle and the defendant. The deputies had conducted a pat-down search of the defendant after seeing the knife in the car and had found no weapons.6 Any weapon which might have been hidden in the car would have been out of the reach of the defendant and thus not a danger to the deputies.7 Therefore, the sole justification of the Terry search, protection of the police officers and others nearby, cannot justify the search in this case.
The state does not contend that the search can be justified by reference to other exceptions to the warrant requirement.8 We hold, therefore, that the
There remains the question of the validity of the search of the trunk. The people seek to justify the warrantless search either as an inventory search or as a search incident to arrest.
The search of the trunk occurred subsequent to the deputies’ decisions to arrest the defendant for possession of marijuana and to impound the car. The defendant‘s arrest was based on evidence obtained by unlawful police action. We find that the evidence of marijuana found in the trunk was the “fruit” of that illegality which should have been suppressed. Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963).
The defendant‘s conviction is reversed.
WILLIAMS, LEVIN, FITZGERALD, and RYAN, JJ., concurred with KAVANAGH, J.
COLEMAN, C.J. (dissenting). We respectfully dissent. The search of defendant‘s vehicle and the seizure of the controlled substance did not violate the constitutional prohibitions against unreasonable searches and seizures,
The facts are stated in the majority opinion. The majority opinion concludes that the officer‘s actions in examining the interior of the vehicle constituted a warrantless search not authorized by Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d
I
In Terry, the Court upheld an officer‘s actions in “patting down” or “frisking” a suspect‘s outer clothing during an investigatory stop as a reasonable protective search. The Court stated:
“Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant.
* * *
“The distinctions of classical ‘stop-and-frisk’ theory thus serve to divert attention from the central inquiry under the Fourth Amendment — the reasonableness in all the circumstances of the particular governmental invasion of a citizen‘s personal security.
“In order to assess the reasonableness of Officer McFadden‘s conduct as a general proposition, it is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,’ * * *
* * *
“We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.
* * *
“We must still consider, however, the nature and quality of the intrusion on individual rights which must be accepted if police officers are to be conceded the right to search for weapons in situations where probable cause to arrest for crime is lacking. Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal
security, and it must surely be an annoying, frightening, and perhaps humiliating experience.
* * *
“Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, supra, 16-27.
In Adams v Williams, 407 US 143, 146; 92 S Ct 1921; 32 L Ed 2d 612 (1972), the Supreme Court explained the role of a protective search, stating:
“The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.”
II
The majority begins the analysis with the premise that Terry authorizes only a limited “pat-down” search of a person and not the search of an area. Without addressing the outer limits of the Terry rationale, we reject this distinction as unpersuasive. The opinion in Terry authorized the
III
The majority also concludes that the protective search rationale could not apply in this case because when defendant was standing next to the deputy at the rear of the vehicle, any weapon which may have been inside the car was out of the reach of the defendant and presented no danger, see Government of Canal Zone v Bender, 573 F2d 1329 (CA 5, 1978).
Other courts have upheld protective searches of the interior of a vehicle while the occupants were detained outside the vehicle. Emphasizing that the occupants were not under arrest at the time of the search and could have returned to the vehicle when the encounter with the officers ended, courts have upheld such protective searches, see United States v Wilkerson, 194 US App DC 393; 598 F2d 621 (1978), United States v Powless, 546 F2d 792 (CA 8, 1977), cert den 430 US 910; 97 S Ct 1185; 51 L Ed 2d 588 (1977), United States v Thomas, 314 A2d 464 (DC App, 1974), United States v Green, 151 US App DC 35; 465 F2d 620 (1972), Brown v State, 358 So 2d 596 (Fla App, 1978), State v Darling, 393 A2d 530 (Me, 1978), Commonwealth v Almeida, 373 Mass 266; 366 NE2d 756 (1977),
In contrast to the cases cited, the defendant in this case had an opportunity to enter his vehicle not only after the encounter ended, but also while it continued. Defendant was in the process of entering the vehicle to retrieve his registration records when the officer observed the knife on the floorboard. Defendant‘s entry into the vehicle would have permitted him to gain possession of any readily accessible weapons in the vehicle. Accordingly, we cannot summarily reject plaintiff‘s claim that Terry authorizes a protective search of the vehicle on the basis that no possible danger was present. If the possibility that a suspect will re-enter his vehicle after an encounter ends is sufficient to support a Terry protective search, the fact that he is attempting to enter the vehicle while the confrontation continues is also sufficient.
IV
Therefore, the Court must determine whether the justifications for a Terry search, the protection of the officers and others, justifies the officer‘s actions.
In the instant case, the officers were confronting a traffic offense suspect whose car ended up in a ditch. After meeting the deputies at the rear of his car, defendant failed to respond to their questions. Finally, defendant began walking back toward his driver‘s door. The defendant appeared to be under the influence of something and acted scared. Ap-
These observations gave the officers reason to believe they were dealing with an armed and dangerous person. A reasonably prudent officer would be warranted in believing that he was in danger. Therefore, the officer was permitted to conduct a Terry search.
After picking up the knife, one officer shone his flashlight at the interior of the vehicle.2 He saw a leather pouch under the driver‘s armrest large enough to hold a weapon. He raised the armrest and observed an open leather pouch containing a plastic bag of marijuana.
Considering all the circumstances, including that one weapon had already been found and that the leather pouch was large enough to hold another, the officer could have reasonably concluded that safety required further investigation. The lifting of the armrest was an action reasonably designed to uncover a hidden weapon. This action would permit the officer to investigate further by observing whether the contents of the pouch could be inferred from its outward appearance (for example, a gun case or holster), see Arkansas v Sanders, 442 US 753, 764-765, fn 13; 99 S Ct 2586; 61 L Ed 2d 235 (1979), or by patting down or frisking the pouch.
The lifting of the armrest is similar to an officer‘s conduct in feeling under a seat or dashboard or lifting a rug. These actions have been upheld in
In contrast to the gravity of the dangers confronting the officers, the raising of the armrest was a minimal intrusion into defendant‘s legitimate expectation of privacy. The area underneath an armrest is not a residence or a common repository for personal effects referred to in Sanders, supra. Rather, it is part of an automobile with “the diminished expectation of privacy which surrounds the automobile“, Robbins v California, 453 US 420; 101 S Ct 2841; 69 L Ed 2d 744 (1981) (opinion of Stewart, J.), United States v Chadwick, 433 US 1, 12-13; 97 S Ct 2476; 53 L Ed 2d 538 (1977).
While upholding the constitutionality of a frisk as a protective search, the Supreme Court recognized that
“[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security and it must surely be an annoying, frightening and perhaps humiliating experience.” Terry, supra, 24-25.
We conclude that the lifting of the armrest was a minimal intrusion into defendant‘s privacy compared to the intrusions upheld in Terry. The raising of the armrest as a protective search in this
Once the armrest was lifted, the contents of the open pouch, a plastic bag containing marijuana, were in the plain view of the officer. The officer properly seized the contraband and arrested defendant, Harris v United States, 390 US 234; 88 S Ct 992; 19 L Ed 2d 1067 (1968).
A review of the other issues raised by defendant discloses no reversible error, see South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976).
BLAIR MOODY, JR., J. (concurring in result). I concur with the result reached by the majority opinion. However, in contrast to my brothers, I agree in general with the analysis formulated in the opinion of Chief Justice COLEMAN, with the exception of the last paragraph. The marijuana found on the front seat of the automobile was legally seized, whereas the marijuana discovered in the trunk was unlawfully obtained.
The defendant was in the process of going into the interior of the automobile in search of the registration and insurance certificates requested by an investigating officer. At that point the officer saw a knife that was in “plain view“. It was the initial discovery of the knife that reasonably led the officers to conduct the Terry1 search of the person.
Thereafter, it was reasonably appropriate and entirely consistent with the principles announced in Terry for the officer to conduct a brief search of the interior of the automobile for weapons, limited to areas in which a weapon could be concealed, yet be accessible. The officer testified that he looked for
Accordingly, discovery of the marijuana, visible under the driver‘s armrest on the front seat of the car, gave probable cause for an arrest and was properly introduced into evidence.
However, a different question is presented regarding the marijuana discovered in the trunk of the car. The prosecution limits its argument to the effect that the marijuana discovered in the trunk of the car was validly seized pursuant to a proper inventory search following defendant‘s arrest and a deputy‘s decision to impound the subject vehicle.2 Relying upon South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976), the prosecution contends that “[w]arrantless inventory searches of impounded cars are a proper caretaking function of the police“.
Yet, Opperman and the instant case involve clearly distinguishable fact situations. Accordingly,
In Opperman, defendant‘s illegally parked car was towed to a city impound lot where a police officer observed a watch on the car‘s dashboard and other items of personal property located in the passenger area of the car. These items were visible from outside the car. A police officer inventoried the contents of the automobile using a standard inventory form pursuant to standard procedures of the local police department. Marijuana was found in the unlocked glove compartment. The impound lot in question had been the scene of thefts of items from cars and testimony revealed that it was “the old county highway yard. It ha[d] a wooden fence partially around part of it, and kind of a dilapidated wire fence, a makeshift fence.” 428 US 366, fn 1. Neither the owner, nor anyone else was present when the decision was made to impound the vehicle. The locked trunk of the vehicle was not searched.3
The plurality opinion in Opperman concluded that an inventory search without a warrant was not “unreasonable” and did not violate the United States Constitution.4 That opinion emphasized that
The concurring opinion of Justice Powell emphasized that “the search here was limited to an inventory of the unoccupied automobile and was conducted strictly in accord with the regulations of the Vermillion [South Dakota] Police Department“. 428 US 380. Justice Powell agreed that the constitution permits routine inventory searches. As he observed, “[i]nventory searches are conducted in accordance with established police department rules or policy and occur whenever an automobile is seized.” 428 US 383. “Upholding searches of this type provides no general license for the police to examine all the contents of such automobiles.” 428 US 380. In concluding that a warrant was unnecessary, he also noted that in the inventory search context the owner or occupant of the vehicle is not present, nor is there usually any real likelihood that he could be located within a reasonable period of time. Thus, according to Justice Powell, the concerns which prompted the Supreme Court of the United States to require a warrant in the context of other administrative searches5 are absent. Furthermore,
The apparent difference between these opinions in Opperman is that the plurality opinion determines that a true inventory search is not “unreasonable” and thus is constitutionally permissible. The warrant clause6 is not implicated by this analysis. In contrast, Justice Powell concludes that the dictates of the warrant clause must be considered to determine whether a search is reasonable. In almost all cases, he notes, a search without a valid consent is unreasonable unless authorized by a search warrant.
In comparing the facts in Opperman and those in the instant case, significant differences emerge. In the instant case, an occupant of the car was present at the time of the asserted impoundment. He was not asked whether he wished the car to be inventoried.7 The impound lot in the case at bar was the underground garage of the sheriff‘s department. The car was secured at this well-protected site. This was a far different type of lot than the one involved in Opperman and suggests that an inventory search conducted at the scene of the arrest or at a well-protected lot is not as reasonable in the instant situation since the car would have been secure in any event.8
Whether the Opperman rationale or a more restrictive interpretation of the Michigan Constitution is to be adopted by this Court is left for future determination. Nevertheless, as one commentator concluded after reviewing Opperman:
“What is needed in the vehicle inventory context, then, * * * is not probable cause but rather a regularized set of procedures which adequately guard against arbitrariness.
* * *
“Inventories should not be upheld under Opperman unless the government shows that there exists an established reasonable procedure for safeguarding impounded vehicles and their contents and that the challenged police activity was essentially in conformance with that procedure. This means that a purported inventory should be held unlawful when it is not shown, for [instance], that standard inventory forms were completed and kept for future reference (showing presence or absence of valuables), nor that a place of
safekeeping for valuables so secured was maintained.” 2 LaFave, Search and Seizure, § 7.4, pp 576-577, quoting State v Jewell, 338 So 2d 633, 639 (La, 1976).
Accordingly, the procedures followed in this case fail even to measure up to Opperman‘s requirements.
For the foregoing reasons, the marijuana that was found in the trunk should not have been admitted into evidence at trial. The error was not harmless. Accordingly, I agree with the result reached by the majority opinion that the decision of the Court of Appeals must be reversed.