*1
Massey
PEOPLE v MASSEY
11, 1995,
Docket No. 179352. Submitted
at Detroit. Decided
October
1, 1996,
appeal sought.
March
at 9:05 a.m.
to
Leave
Massey
charged
Larry
was
the
in the Recorder’s Court for
of
possession
intent
Detroit with
to deliver more than 225
grams
brought
but less than 650
of
The
cocaine.
defendant
seeking
alleging
to
the
motion
that
the
illegal
evidence was obtained as
of an
unconstitu-
a result
and
J.,
court,
Edwards,
The
tional search.
trial
Prentis
denied the
Griffin, P.J.,
Holbrook,
Appeals,
motion. The Court of
and
Weaver, JJ., granted
Jr.,
appeal
the defendant
leave to
staying
the
of his motion
entered
denial
an order
proceedings
Unpublished
in the trial court.
of the
order
Court
(Docket
179352).
30,1994
Appeals,
of
entered November
No.
Appeals
The Court of
held:
1. The
officer’s search of the contents of the defend-
pocket,
jacket
bulge
ant’s
which had made a
might
thought
weapon,
justified
be a
was
under the limited
scope
“plain
requirement
exception
feel”
to the warrant
of the Fourth Amendment of the United States Constitution.
stop
The
officers’
of
vehicle in
the defend-
which
lawful,
ant was a
and the
observation
pocket
jacket
in the defendant’s
at the waist
pursuant
Ohio,
search
to
Karri for the defendant. P.J., Before: Michael and O’Connell Kelly, and J. R. JJ. Giddings,* P.J. Defendant was a front- Kelly, Michael passenger stopped by police seat in the The two officers from the an automobile exceeding speed limit. of Detroit for
patrol approached car Dwayne Jackson the vehicle from the front. Officer approached recognized side of the car and for
defendant as a man had known years as a schoolmate of his brother. While several * sitting Appeals by assignment. judge, on the Court of Circuit Opinion of the Court speaking defendant, at the vehicle and with bulge noticed a waist; protection in the area of his For his protection officer, of his fellow the defend- by step ant was asked Officer Jackson to weapons. car for a complied search for Defendant request, got
with the officer’s out of the vehicle and submitted to the proceeded As the officer with the placed fingers bulge search, he his around the weapon. realized it was not a thought might hearing be narcotics. At a regarding the defendant’s motion to it, the officer testified: "When touched had some idea what removed the was.” The officer then object creating from defend- upon inspection, and, ant’s found it to be a. paper bag open. brown Inside was a clear plastic bag containing narcotics. charged
Defendant was with grams *3 intent 225 deliver over but less than 650 14.15(7401) 333.7401(2)(a)(ii); of cocaine. MCL (2)(a)(ii). MSA suppress trial, Before defendant moved to alleging the the evidence was obtained illegal by an and unconstitutional search. The trial granted motion, court denied the leave to Court this appeal. regarding a
We review trial court’s decision motion to erroneous standard. evidence under the
People Burrell, v 417 Mich 439; 339 403 NW2d "Clear error exists reviewing when the court is left with the definite firm and made.” conviction that a mistake has been
People Kurylczyk, 289, 303; v 443 Mich (1993); supra. It v does appear to us that the officer’s search of the pocket jacket justified contents of defendant’s was excep- scope "pilain the limited of feel” under the 215 Mich Opinion op the Court requirement Fourth of the tion to warrant States Amendment of the United Constitution. hearing regard- testimony at A review of the motion to the evidence establishes stop of the vehicle in which defendant riding passenger. as a The observation was passengers in and the other the vehicle defendant being by Jackson, while the driver was Officer regarding the civil infraction of ex- interviewed ceeding speed appropriate. limit, was bulge in observation of the Jackson’s pocket the waist Terry Ohio, 1; 1868; 20 L 392 US 88 S Ct Ed 2d
However, when Officer Jackson conducted the quickly defendant, search of he learned creating object weapon; not a he became was suspicion, was narcotics. To confirm his he removed the and found it to paper bag, open top. be a brown at the He looked plastic bag in the and saw a clear that con- tained a substance that believed to be a nar- bags cotic. The contents of the defendant were seized and arrested. Defendant claims that the search didn’t object causing lump make the immediately apparent though officer,
to the he had it some idea what was. When he knew wasn’t weapon he had idea of what when some longer was, his continued search was no consti- paper bag tutional. The seizure brown illegal suppressed and its contents must be as against evidence defendant. Minnesota v Dicker- son, 2130; 508 US 113 S 124 L Ed Ct 2d (1993); People Champion, App 623; 518
Reversed. by O’Connell, J. Giddings, J., R. concurred. (dissenting). The sole issue on O’Connell, properly appeal denied the trial court is whether suppress A trial motion to evidence. ruling regard a motion to to court’s unless there is to deference evidence is entitled part the trial court. error on the clear 439, 448; 339 NW2d court’s decision was Because the trial erroneous, court’s decision. affirm the trial would
i stopped officers a vehicle Two Detroit p.m. speeding 8:00 on of Detroit for April 6, a 1994. Defendant was Dwayne the vehicle. Officer Jackson front seat of partner ap- defendant and Jackson’s confronted proached into the win- the driver. Jackson looked bulge in the waist area of and noticed a dow defendant’s Thinking might jacket. that defendant get armed, asked him to out be vehicle and he conducted lumpy bulge. There, he "felt a rock hard substance pocket,” which, the officer’s in his on the basis of experience, thought "cocaine, narcotics.” presence of narcotics He could not confirm the from defendant’s until he removed lumpy in a and found in it "an off-white clear During substance paper bag.” creating plastic bag inside of a brown big . . like a . one felt "almost baseball lump.” was "smaller than baseball.” to motion
The trial court denied defendant’s
concluding
the officer law-
drugs pursuant
plain
fully
feel
seized the
*5
644
639
by O’Connell,
Dissent
Dickerson,
366;
doctrine. See Minnesota v
508
US
2130;
113 S
to him that felt like narcot- on his he assumed that it based was narcotics. granted
We for leave to application appeal and in the stayed proceedings trial court.
ii Dickerson, 375, supra, p In the Court stated that police pats suspect’s down a lawfully "[i]f clothing outer and feels an whose contour or mass makes its identity apparent, there has been no invasion of the suspect’s privacy authorized beyond already by the officer’s weapons.” search for case,
In present conducted search for his The safety. challenged appeal. is not on Ohio, 1868; L US S Ct Ed 2d go did not beyond in clothing weapons. outer a search for The officer felt a hard ball-shaped object pieces broken off, which, in experience, his he believed to be cocaine. Officer Jackson testified "that he felt something that to him felt like some narcotics.” In words, other "immediately apparent” in possession Officer Jackson that defendant was narcotics. had
The fact to remove the item from defendant’s to confirm his initial impression does not affect its as being "immediately apparent.” "Immediately ap- parent” having probable means fur- without Schiavo, United States v ther search. As stated 1994): (CA 6, 1, 29 F3d
During
Terry-type
may
officers
"plain
seize an
view” without a
if
warrant
they
without
have
cause to believe
is contraband
*6
conducting
object,
some further search of the
i.e.,
incriminating
ap-
if its
"immediately
character is
—,
Likewise,
Dickerson at
parent.”
S Ct at 2136-37.
"plain
permits
feel” doctrine
an officer to seize an
incriminating
object,
if its
character
is
—,
Id. apparent during
protective pat-search.
Here, the trial court found that on his "based as- [law enforcement] [Officer Jackson] words, In police sumed was narcotics.” other probable officer had cause to believe defend- in ant was of narcotics. The trial clearly court’s decision is not erroneous.
hi the search violated Peo- argues Defendant ple Champion, App Mich (1994), because the officer was not cer- absolutely tain and had to what remove from defendant’s before he was certain. The distinguishable facts of this case are from However, Champion, supra. say write further Champion wrongly decided. Champion, pill
In was. a groin bottle that the officer felt the defendant’s during area pointed search.1 This Court "[mjerely feeling
out that from the con- pill bottle, tours of a the officer was able to con- pill clude bottle, that defendant carried a not that he carried . . . [I]t contraband. was his visual inspection pill removing bottle, after it from 'plain defendant, rather than its feel’ that revealed Champion, supra, p the contents to be cocaine.” agree "immediately the item that was apparent” pill that, was a bottle and in and of give police probable itself, this would not pill cause to search. bottle located in a person’s groin give area does probable cause to A officer of reason- removing pill able caution would be groin bottle from the defendant’s area.
Applying reasoning Champion major- ity following hypothetical to the illustrates its reasoning: flawed of a strapped Police conduct a (the container) suspect gun and feel a holster suspect’s leg. Applying to the the Cham- pion logic, this is not cause to apparent” "immediately because it is not suspect gun. only immediately apparent has a It is logic that he has a holster. This is flawed and *7 could have serious ramifications. application
The correct would be to consider the totality of the circumstances of each situation. Considering totality of the circumstances sur- rounding Champion present case reveals no violation of the Fourth Amendment of the United States Constitution. would find that feel- "pill groin” bottle in or a holster strapped suspect’s leg, although to a both are give containers, does We note that most officers would find it to find a
pill bottle in this location. pill in a sus- bottle pect’s purse substantially different would be issue. part
I find no clear error on the of the trial p supra, court. decision. would affirm the trial court’s