*1 110 PEOPLE v MILLER 22, 1981, April Docket No. 51996. Submitted at Detroit. Decided appeal applied October 1981. Leave to for. charged
James Miller was arrested and Detroit Recorder’s carrying pistol operated Court with in a motor vehicle or occupied by possession him and with of heroin. The heroin was briefcase, opened found in defendant’s which was after defen- gun charge. dant was arrested on the Defendant filed a motion quash the evidence and the information on the ground illegally that he had been arrested. The motion was granted dismissed, III, George Crockett, and the case W. J. The people appeal. Held: 1. Defendant was not arrested. suppressing 2. The trial court erred in evidence of the
that was seized from the automobile. 3. The trial court did err in evidence of the heroin that was found in defendant’s briefcase. The briefcase protective search was neither an search nor a limited search. 4. The order of dismissal is reversed and the case is re- suppress only
manded with instructions to
the evidence of the
heroin
that was found in the briefcase. Evidence of the
may be admitted into evidence.
part,
part,
Reversed in
affirmed in
and remanded.
J.,
part.
Allen,
dissented in
He would hold that the briefcase
part
as
of a valid
search and that
[5-7]
[7]
[3]
[1]
[4]
[2]
constitution of warrantless search of auto-
Validity, under federal Lawfulness of
68 Am Jur
68 Am Jur
5 Am Jur
68 Am Jur
68 Am Jur
police. 48 ALR3d 537.
mobile—
68 Am Jur
Supreme Court cases.
A on a motion to evidence will not be trial court’s erroneous; ruling clearly clearly unless it is a is reversed reviewing firmly a erroneous where the court is convinced that been mistake has made. — 3. and Seizures Police Officers. Searches flashlight police that a officer used a observe The fact significant. night legally at is not interior of an automobile — 4. Automobiles. Searches and Seizures exigent required, in the of cricum- A warrant is absence search stances, police may luggage is from a taken before stopped properly automobile. Inventory — — Searches. 5. Searches and Seizures Automobiles inventory of automobiles are reasonable under Routine searches pursuant to standard Fourth Amendment when conducted concealing pretext procedures are and when not a motive; police justifications investigatory (1) protection property of the while held are: owner’s searches (2) custody; protection police against of claims (3) protection poten- property; of from lost or stolen and (US IV). Const, danger tial Am — — — 6. and Seizures Automobiles Closed Containers Searches Inventory Searches. in automobiles should Closed containers which the find generally and as a than be inventoried unit rather itemized. by Allen, J. Partial Dissent Inventory — 7. and Seizures Searches. Searches possession may open a properly in the Police briefcase Opinion part defendant when arrested as of a lawful search of prior being him items has with to his taken to jail. Frank J. Robert A. General, Kelley, Attorney Cahalan, General, Derengoski, Solicitor William L. Wilson, Reilly Edward Prosecuting Prin- Attorney, Solak, L. Andrea and cipal Attorney, Appeals, Prosecuting Attorney, Assistant for the people. Hill, C. Marshall for defendant. Kaufman, P.J.,
Before:' N. J. and Allen and Riley, D. C. JJ.
Per Curiam. Defendant was Septem- arrested on 1979, ber with charged carrying a operated occupied him, motor vehicle or by MCL 750.227; 28.424, possession heroin, MSA *3 14.15(7403)(2)(a). 333.7403(2)(a); MCL MSA preliminary 20, examination was held on March 1980, and defendant bound over for trial on 16, 1980, both charges. April On defendant filed a motion to evidence and quash the infor- mation, alleging that had he been ar- rested. The motion was granted aby Recorder’s and judge, dismissing order the case was April 29, entered on 1980. Plaintiff appeals as of right, pursuant to GCR 806.1. 9, 1979,
On September 11 p.m., at approximately Detroit Police Officers John Ruese and David Si- wak were proceeding northbound Appoline Street in Detroit they when observed an automo- parked bile on the side the street. The car’s off, lights engine were and a man running, was sitting behind steering wheel. As the their past car, drove cruiser the man turned on headlights and the car pulled away from the curb. The man drove "about two houses” v Miller lights, parked street, down the turned off the again. at the curb
The two officers then went around the up positioning vehicle, block and came behind the they their cruiser so that could have an unob- parked They structed view of the vehicle. watched the car for several minutes and then saw the headlights taillights vehicle’s flash on and off emerge twice. The officers then saw defendant from between two houses near where the vehicle previously parked. had been Defendant had a parked briefcase his hand. He entered the vehi- passenger side, cle on the and the interior dome light came on and remained on for "a few mo- light off, ments”. When the dome pulled away went the car lights from the curb with none of its on.
Officer Ruese testified: "Thinking suspicious that this was rather nature and fearing possible neighborhood,along for a B & E in the driving nighttime with the fact that he was at without any attempted lights any lights on, traffic exterior we —without stop pulled up the vehicle. Just as we pulled behind the vehicle the driver to the curb and stopped people got and turned the car off and both out of the car.” particular
The officers had made no effort to vehicle; turned on neither their siren nor their overhead flasher. got
When car, out of the he looked police, toward the threw the briefcase onto the *4 car, front seat shut, of the slammed the car door began walking away westerly and in a direction. shut, The driver of the car then slammed his door police, began walking looked toward the and in an easterly police approached direction. The officers other the and defendant ordered and the vehicle the vehicle to men returned The two halt. to man produce defen- As identification. to asked and were looking identification, Officer his for dant was flashlight and saw into the car his Ruese shined observed He also front seat. on the the briefcase pouch nickel-plated in a revolver .32-caliber point, and At that of the briefcase. side carry- placed arrest under man were the other ing was Defendant motor vehicle. in a police placed cruiser. in the handcuffed and opened door, which was the car Ruese Officer gun. and unlocked, the briefcase and removed (unzipped) and dis- the briefcase then He envelopes con- which manila coin two covered subsequent powdery A labora- substance. tained a tory analysis powder it that con- showed of the traces of heroin. tained preliminary previously examina- noted, the
As
20, 1980, and defendant
on March
was held
tion
Subsequently, however,
for trial.
bound over
granted
and
evidence was
to
the motion
dismissing
Al-
was entered.
the case
order
an
entirely
though
is not
for his decision
the reason
apparently
examining magistrate
be-
clear,
to, and controlled
this case was similar
lieved that
Hampshire,
Coolidge
by,
443; 91 S
403 US
v New
2022;
Because of the unusual
had
witnessed,
in
certainly
justified
were
making
investigatory
and his
The
men
not arrested until
companion.
two
were
pistol
one of
observed the
in the auto-
the officers
mobile, at
time the
officers had
proba-
which
cause to make a valid arrest. We
ble
therefore
that defendant
not
arrested.
hold
was
argue
The
next
the trial
erred
people
judge
suppressing
pistol
evidence of the
that was
A
ruling
seized from the automobile.
trial court’s
to
on a motion
will
be
Grimmett,
reversed unless it is
erroneous.
clearly
supra,
when,
ruling
214. A
is
erroneous
clearly
it,
although there is
the re-
support
evidence to
firm
viewing court
is left with the
conviction that
Id.,
Goss,
People
v
a mistake has been committed.
(1979).
598, 601;
App
89 Mich
We
Michigan Supreme
Court
Supreme Court and
that,
exigent
in the absence of
have
held
recently
circumstances,
to search
required
a warrant
is
stopped
a properly
that
is taken from
luggage
Sanders,
753;
Arkansas v
442 US
99 S
automobile.
v Plantefa-
(1979),
People
2586;
There is the record to indicate to a pursuant defendant’s briefcase was searched procedure. standard The record does not inventory show that the automobile in which defendant was passenger impounded was ever or that its other fact, contents were inventoried. In People Miller v search doctrine was never raised below as a justifi- cation for the search the briefcase. During examination, preliminary Officer Ruese ques- tioned purpose about his in searching the brief- case: Officer, "Q. purpose for what you did search the
remaining briefcase? ”A. We confiscated the along briefcase with the weapon case, possible as evidence in a criminal aas performed custodial search which would any be relating items specific confiscated to a crime.” The testimony cuts clearly against the people’s argument. It demonstrates that Officer Ruese seized and searched the briefcase because he felt it was evidence related to a specific Hence, crime. we reject people’s argu- ment the briefcase search was a standard inventory search. Merchant, in
We realize supra, panel of this Court upheld, as a standard inven- *7 search, tory a search of defendant’s briefcase after it had been taken from an automobile. The Mer- chant decision, however, has not been followed by any panel Court, other of this to we decline do so present in the view, In our the Merchant case. decision does not strike proper the balance be- tween an high individual’s relatively expectation in privacy the contents of a closed briefcase and the state’s interests in conducting searches.
Moreover, several lower federal court decisions have held that personal luggage and briefcases should be inventoried as a unit rather than and itemized. For example, v United States in Bloomfield, (CA 8, 1979), 594 F2d 1200 the Court of Appeals Eighth the Circuit held that the App 270 110 Mich 278 by Allen, J. Partial Dissent by opening Amendment the Fourth violated search a routine during knapsack closed that stated The Court automobile. of defendant’s should automobiles found with closed containers unit rather than as a be inventoried generally v States United See, also, itemized. opened and 1978) (D DC, Hill, (inventory search 31 Supp 458 F in located had been bag which flight of defendant’s Fourth violated automobile impounded trunk of Schleis, 582 F2d v and United States Amendment), banc) 1978) (en inven- (CA (police may defen- by carried of a briefcase the contents tory arrested). dant when the argument people’s the reject
We also protective search. was a limited briefcase search the automobile taken from Since the briefcase was Ruese when the control Officer and was under occurred, justified cannot be the search protective a limited search. as and the case is of dismissal is reversed order suppress only instructions remanded with in the that was found of the heroin evidence admitted of the be may briefcase. Evidence plain view since the was within it seized. police when was re- in affirmed in part, part, Reversed manded. (dissenting part). in I agree J.
Allen, trial court erred However, panel
pistol. as a member of which Merchant, 86 sat (1978), agree I with the majority NW2d cannot Merchant "the decision does not strike relatively individual’s proper balance between an *8 state’s inter- of and the high expectation privacy” with, Mer- begin To protecting public. est in People v Miller by Allen, Partial Dissent J. chant was followed without Godwin, criticism in 289-290; 288 NW2d 354
More significantly, defendant in the instant case was not arrested because of the heroin in the briefcase, but was arrested for in carrying a motor vehicle and sitting was handcuffed and in the police cruiser under such arrest before the briefcase was opened. distinction is important. stated Merchant: As we "However, 2476; Chadwick US 97 S Ct 53 L Ed [433 (1977)] 2d 538 inventory an case since the arrests there were on based the contents of the foot- by Here, locker as disclosed the search. defendant was not arrested for the heroin found his briefcase but outstanding on charges arrested warrants larceny building, from a and was about to be taken to jail charges. circumstances, on said Under making type were a standard prior items defendant had with him being taken to jail.” Merchant, supra, 361. In my opinion, conducting were at the time the briefcase was opened. Accordingly, the trial court in sup- erred pressing I heroin. would remand for trial charges on the of carrying possession of heroin.