PEOPLE v TAYLOR
Docket No. 103347
Supreme Court of Michigan
Decided June 17, 1997
454 MICH 580
Argued January 14, 1997 (Calendar No. 3).
In an opinion by Justice CAVANAGH, joined by Chief Justice MALLETT, and Justices BRICKLEY and KELLY, the Supreme Court held:
The smell of marijuana alone is but one factor to consider in the totality of the circumstances in determining whether probable cause exists to conduct a search of a parked vehicle without a warrant.
1. The Fourth Amendment does not guarantee freedom from all searches and seizures, rather only from those that are unreasonable. However, the Fourth Amendment applies to all seizures, including those that involve only a brief detention, short of a traditional arrest. Determining when a seizure takes place is crucial to a Fourth Amendment inquiry because it is at that point that the officer must have probable cause. In this case, while this initial encounter of the defendants was justified as a mere inquiry, the level of intrusion upon the defendants escalated to a seizure requiring probable cause when the officer summoned dispatch for back-up.
2. The Michigan Supreme Court has followed federal precedent in adopting the plain view and plain touch exceptions to the warrant requirement. With respect to a plain smell exception to the warrant requirement, because the United States Supreme Court has
3. It is clear from the record that the preliminary examination in this case was ended prematurely, requiring remand to the trial court for continuation of the preliminary examination to determine whether there was probable cause to seize the defendants at the time the officer called for back-up and for consideration of any special training or experience the officer may have had regarding his ability to identify the odor of marijuana in determining the weight to give his testimony.
Remanded for further proceedings.
Justice WEAVER, joined by Justices BOYLE and RILEY, concurring in part and dissenting in part, stated that the plain smell of burned or unburned marijuana provides probable cause to search a vehicle without a warrant.
When an officer smells an odor that is immediately incriminating from a lawful vantage point, the officer may rely on the sense of smell to determine whether probable cause exists to search a vehicle without a warrant. Probable cause exists to support plain view and plain feel exceptions where the incriminating character of the item to be seized is immediately apparent and turns on the degree of certainty that the item to be seized is contraband. There is no bright-line rule; rather, probable cause is determined by the circumstances of each case. In this case, the immediately apparent smell of marijuana provided a substantial basis for inferring that there was a fair probability that contraband was present in the vehicle, and the odor alone provided sufficient probable cause to search the vehicle. The distinction between burned marijuana and unburned marijuana is irrelevant to the existence of probable cause
The plain view, plain feel, and plain smell exceptions require that police officers be at a lawful observation point when they perceive the presence of contraband. In this case, a lone police officer approached the vehicle on foot to investigate the intentions of the passengers. The officer recognized the odor of burned marijuana after the defendant rolled down the window of the vehicle. Police questioning, without more, is unlikely to result in a seizure under the Fourth Amendment. The encounter, when objectively considering all the circumstances surrounding it, must convince a reasonable person that he is not free to leave. The police officer neither drew his weapon, used his vehicle to block the defendant‘s vehicle, nor activated his patrol car‘s sirens or lights. The initially consensual encounter between the officer and the defendants could not have been less threatening to the five occupants of the vehicle or less likely to invoke a perception of seizure. The resulting search and seizure was based on probable cause founded in the odor of marijuana and valid under the Fourth Amendment.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and T. Lynn Hopkins, Assistant Prosecuting Attorney, for the people.
Richard C. Gould and Melissa G. Leckie for the defendants.
Amicus Curiae:
Michael Thomas, President, John D. O‘Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, for Prosecuting Attorneys Association of Michigan.
CAVANAGH, J. In this case we are asked to determine whether the smell of marijuana alone provides sufficient probable cause to conduct a search of a parked motor vehicle without a warrant. We hold that in making a determination of probable cause the smell
I
Defendants are five African-American males who were sitting in a parked vehicle at the Anazeh Sands Pool Hall in the City of Wyoming, on March 9, 1994. Wyoming Police Officer Walendzik was on routine patrol that night. As part of his patrol, Officer Walendzik drove through the parking lot where defendants were sitting in their vehicle. There were no specific incidents reported that evening; however, the parking lot was known as a high-crime area and was frequently the site of drug and alcohol complaints.
The parking lot was a public-access lot. There were quite a few cars parked in the lot, and defendants’ vehicle was parked two spaces away from another vehicle. Testimony at the preliminary examination indicated that all areas of the parking lot were well lit. In fact, the parking lot was so well lit that one officer testified that you could drive through the lot without headlights.
When Officer Walendzik drove through the parking lot around midnight on March 9, he observed the five defendants sitting in a parked vehicle with the engine off. While the officer observed that the defendants were eating Burger King sandwiches, he saw no unusual activity or furtive gestures by the occupants before he approached it. Furthermore, he did not see any smoke or marijuana in the car.
Nevertheless, he stated that his attention was drawn to the vehicle because, “[t]he vehicle was not running and there were five subjects just seated in
Officer Walendzik asked the occupants of the vehicle for identification and if they had been smoking marijuana. The defendants stated that they did not have identification with them and that they were not smoking marijuana, and they accused the officer of harassing them. Officer Walendzik testified, “At that time I called dispatch and advised them that I was on a possible VCSA [violation of controlled substances act] and asked for them to send me a back-up. . . . Approximately 30 seconds later Officer Bivins arrived on the scene.”
Before Officer Bivins smelled the marijuana himself, Officer Walendzik informed him of the circumstances and that he had smelled burnt marijuana emanating from the vehicle. Officer Walendzik then asked Officer Bivins to confirm the smell “and help [him] getting those subjects out of the vehicle.” Officer Bivins then approached the passenger side of the vehicle. He testified that he smelled marijuana when the front seat passenger rolled down the window. Officer Bivins had no special training in the smell of
After smelling the marijuana, Officer Bivins ordered the passenger, defendant Pimpleton, out of the vehicle and did a Terry1 patdown. He immediately felt the outline of a revolver in the inside pocket of the defendant‘s coat. Officer Bivins handcuffed defendant Pimpleton, yelled to Officer Walendzik that there was a gun, and ordered the defendant to the ground. Meanwhile, Officer Walendzik went to the back of the vehicle and summoned more back-up.
At that time, one of the passengers in the back seat, defendant Vazquez, jumped out of the vehicle. Defendant Vazquez got about three or four steps away from the car before Officer Bivins tackled him and handcuffed him. Shortly thereafter, more officers arrived on the scene. They ordered the remaining defendants out of the vehicle and handcuffed them. The officers conducted a search of the vehicle, which revealed three additional handguns. The officers also found pieces of a cigar on the floorboard of the vehicle that appeared to contain marijuana. The actual presence of marijuana was never confirmed.
Defendant Taylor was charged with two counts of transporting and concealing stolen firearms,
A joint preliminary examination was conducted for all the defendants except Taylor. At the time of the preliminary examination, Taylor had not retained an attorney, nor had one been appointed for him. On the advice of the judge, Taylor waived his preliminary examination with the right to remand should he receive an attorney.
Officer Walendzik was the first witness to testify for the prosecution. After he relayed the events leading up to his decision to call for back-up, the attorney for defendant Howland objected to any further testimony about the evidence obtained by the officers on the basis of an illegal search of the vehicle. Defense counsel asserted that the officers did not have probable cause to order any of the defendants out of the vehicle on the basis of People v Hilber, 403 Mich 312; 269 NW2d 159 (1978), and People v Chernowas, 111 Mich App 1, 5-6; 314 NW2d 505 (1981). The judge took the objection under advisement while he gave the prosecution a fifteen-minute opportunity to call the prosecutor‘s office to find case law contrary to Hilber and Chernowas.
The preliminary examination continued in the meantime until the prosecution was forced to ask for an adjournment in order to bring in a key witness from Florida who was expected to testify that the weapons found in the defendants’ vehicle were stolen from him. However, the attorney for defendant Vazquez objected, stating that the question “with regard to the request for an adjournment, is whether or not that‘s going to be necessary if the Court has heard sufficient testimony to rule on co-counsel‘s original
On appeal by the prosecutor from the magistrate‘s decision, the circuit court agreed that the searches were illegal and the charges were properly dismissed. A split panel of the Court of Appeals denied leave to appeal for lack of merit on the grounds presented.2 The prosecutor appealed, and we granted leave to consider whether the odor of marijuana alone provided sufficient probable cause to search the vehicle.
II
The Fourth Amendment of the federal constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .”
a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. [Id. at 153.]
Thus, the Court held that a search of an automobile without a warrant, based upon probable cause to believe that the vehicle contained evidence of a crime in light of the exigency arising out of the mobility of the vehicle, did not contravene the Warrant Clause of the Fourth Amendment. Id. at 158-159.4
In Chambers v Maroney, 399 US 42; 90 S Ct 1975; 26 L Ed 2d 419 (1970), the United States Supreme Court refined the exigency requirement, holding that the existence of exigent circumstances justifying the search of a vehicle without a warrant was to be determined at the time the automobile is seized. The Court has held that regardless of whether the vehicle was actually moving at the time it was seized is irrelevant. “The capacity to be ‘quickly moved’ was clearly the basis of the holding in Carroll, and our cases have consistently recognized ready mobility as one of the principal bases of the automobile exception.” Carney, 471 US 390.
As this Court noted in People v Shabaz, 424 Mich 42, 52; 378 NW2d 451 (1985), the Fourth Amendment
In Shabaz, we noted that in Florida v Royer, 460 US 491, 497-498; 103 S Ct 1319; 75 L Ed 2d 229 (1983), Justice White, writing for a plurality of the Court, stated:
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. . . . Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. . . . The person approached, however, need not answer any questions put to him; indeed, he may decline to listen to the questions at all and may go on his way. . . . He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Emphasis added; citations omitted.]
Determining the point when the seizure took place is crucial to a Fourth Amendment inquiry because it is at that point that the officer must have probable cause.
Officer Walendzik did not violate the Fourth Amendment by merely approaching the vehicle in a public place and asking defendants if they were willing to answer some questions. While this initial encounter was justified as a mere inquiry, and thus was reasonable without a showing of probable cause, the level of intrusion upon the defendants escalated to a seizure requiring probable cause when Officer Walendzik summoned dispatch for back-up.
As stated by Justice White in Florida v Royer at 498, a person approached by an officer “may not be detained even momentarily without reasonable, objective grounds for doing so. . . .” In this case, Officer Walendzik testified that when defendants answered that they had not been smoking marijuana, he “called dispatch and . . . asked for them to send me a back-up.” Furthermore, Officer Walendzik testified that when Officer Bivins arrived on the scene approximately thirty seconds later, he wanted Officer Bivins to “help [him] get[] those subjects out of the vehicle.” The testimony of Officer Walendzik demonstrates that the mere inquiry had progressed to a seizure. Not only were the defendants detained for the thirty seconds it took back-up to arrive, Officer Bivins did not even have the opportunity to approach the vehicle before Officer Walendzik told him he needed help getting the suspects out of the vehicle. Therefore, it is clear that Officer Walendzik was not only calling for back-up to confirm his suspicions about the smell; rather, he was calling for back-up so that he could have assistance in ordering the defendants out of the car. This amounted to a seizure, the justification for which requires probable cause.
This Court has followed federal precedent in adopting the plain view and plain touch exceptions to the warrant requirement. See, e.g., People v Champion, 452 Mich 92; 549 NW2d 849 (1996). The plain view doctrine allows police officers to seize items in plain view without first obtaining a search warrant. Id. at 101. The plain touch exception allows an object felt during an authorized patdown search to be seized without a warrant if the officer develops probable cause to believe the item felt is contraband. Id. at 105-106.
This Court, in adopting the plain feel exception in Champion stated:
We emphasize that courts applying the plain feel exception must appreciate the totality of the circumstances in the given case. [Minnesota v Dickerson, 508 US 366; 113 S Ct 2130; 124 L Ed 2d 334 (1993)] requires an in-depth examination of probable cause. We therefore caution that our holding is limited to the facts before us. . . . It is only under the totality of the circumstances before us, i.e., the defendant‘s furtive behavior, his refusal to remove his hands from his sweatpants, the officer‘s recognition of defendant, and his knowledge of defendant‘s past involvement in drug crimes, that we find that removal of this particular pill bottle was authorized. [Id. at 112-113.]
Later, this Court repeated, “We again emphasize that it is only under the totality of the circumstances that seizure of this pill bottle is authorized.” Id. at 113.
In this case we consider the plain smell exception to the warrant requirement. In Taylor v United States, 286 US 1, 6; 52 S Ct 466; 76 L Ed 951 (1932), the United States Supreme Court was faced with the question whether smell alone provides probable
Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guarantees against unreasonable search. [Id. at 6.]
Later, in Johnson v United States, 333 US 10, 13; 68 S Ct 367; 92 L Ed 436 (1948), the Court reiterated that Taylor held
only that odors alone do not authorize a search without warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.
Because the United States Supreme Court has held that odor alone is not sufficient to authorize a search of a building without a warrant, we hold that odor alone is not sufficient probable cause to search a vehicle. Rather, as these cases indicate, odor should be but one factor to consider in a totality of the circumstances.
Using the totality of the circumstances test to determine whether there was probable cause advances a concern associated with the reliability of smell in general. As noted by the dissent, we acknowledge that there is a difference between the plain view of an object and the plain touch and smell. With sight, the item to be seized is immediately present and no further searching is required. However,
It is precisely for this reason that the Court should be even more cautious when basing probable cause on a smell. By requiring the officer to use smell as one factor in a totality of circumstances, it protects the rights of a defendant against unreasonable searches and seizures. Therefore, on the basis of both federal and state law, officers may not seize a person on the basis of odor alone.6
We hold that the smell of marijuana is but one factor to consider in the totality of the circumstances in determining whether probable cause exists to conduct a search of a parked vehicle without a warrant.
V
Finally, the preliminary examination in this case was never completed because the trial judge dis-
Because we sit as a reviewing court only, we cannot make the initial determination whether there was probable cause in this case. “[A] reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. A trial judge views the facts of a particular case in light of the distinctive features and events of the community . . . .” Ornelas-Ledesma v United States, 517 US 690, ___; 116 S Ct 1657; 134 L Ed 2d 911, 920-921 (1996). We should not make a determination that the decision of
Remanded for further proceedings.
MALLETT, C.J., and BRICKLEY and KELLY, JJ., concurred with CAVANAGH, J.
WEAVER, J. (concurring in part and dissenting in part). I concur with the majority‘s reinstatement of the charges against these defendants, but disagree with the majority‘s reasoning. In this case, we consider whether the Fourth Amendment permits a search of a vehicle when the search is premised on a police officer‘s perception of an odor of burned marijuana emanating from the vehicle. I disagree with the majority holding that probable cause must be determined from the totality of the circumstances. Instead I would hold that the plain smell of burned or unburned marijuana provides probable cause to search a vehicle without a warrant.
I agree with the majority that at the time the police officer perceived the odor of burned marijuana, no seizure had occurred under the Fourth Amendment.
I
In addition to the facts as presented by the majority, I note that testimony from the preliminary hearing indicates that there were two or three arrests made each night for alcohol and drugs in the parking lot where the arrests occurred. Further, Sergeant Theodore Kneibel, who arrived less than a minute after Officer Walendzik called for assistance, testified that when he approached the defendants’ open vehicle he detected the “strong pungent odor” of marijuana. Sim-
In addition to a loaded revolver seized from defendant Pimpleton, a subsequent search of the defendants and their vehicle revealed, among other things, three additional loaded handguns, a 9-mm round, pagers, and three face masks.
II
The Fourth Amendment of the United States Constitution is a guarantee against unreasonable searches and seizures.
A
There are narrowly drawn exceptions to the Fourth Amendment warrant requirement. These exceptions attempt to balance the tension between a police officer‘s duty to protect the public and an individual‘s right under the Fourth Amendment to personal
The plain view exception permits police officers to seize items of an immediately apparent, incriminating character without a warrant when the officer is in a lawful position from which to view the item, People v Champion, 452 Mich 92, 101; 549 NW2d 849 (1996). “‘[I]mmediately apparent’ means that without further search the officers have ‘probable cause to believe’ the items are seizable.” Id., p 102, citing Texas v Brown, 460 US 730, 741-742; 103 S Ct 1535; 75 L Ed 2d 502 (1983). The plain feel exception similarly allows seizure without a warrant of objects discovered during a weapons patdown when the identity of the object is immediately apparent and the officer has probable cause to believe the object is contraband. People v Champion, supra, p 101.
The federal courts and an overwhelming majority of state courts hold that probable cause may also be based on distinctive odors. See, e.g., United States v Haley, 669 F2d 201 (CA 4, 1982); United States v Miller, 812 F2d 1206 (CA 9, 1987); United States v Morin, 949 F2d 297 (CA 10, 1991). This Court has not expressly held that the sense of smell can support a finding of probable cause; however, we noted in People v Faucett, 442 Mich 153, 156, n 3; 499 NW2d 764
I recognize that there is an apparent difference between the plain view exception and the plain feel and smell exceptions to the warrant requirement. With sight, the item to be seized is immediately present and no further search for contraband is required. However, the senses of touch and smell establish the possible presence of contraband, the confirmation of which requires further “searching.” This issue was addressed by the United States Supreme Court in Minnesota v Dickerson:
If a police officer lawfully pats down a suspect‘s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect‘s privacy beyond that already authorized by the officer‘s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context. [508 US 366, 375-376; 113 S Ct 2130; 124 L Ed 2d 334 (1993).]
Dickerson does not require consideration of the totality of the circumstances to establish probable cause under the plain feel exception. Similarly, when an officer smells an odor that is immediately incriminating from a lawful vantage point,5 the officer may rely on his sense of smell to determine whether probable cause exists to search a vehicle without the circumspection of a neutral magistrate. Excessively speculative searches are deterred by the Fourth Amendment requirement that the officer have probable cause to believe contraband is present. Dickerson, 508 US 376.
Probable cause exists to support the plain view6 and plain feel7 exceptions where the incriminating character of the item to be seized is immediately apparent. “[T]he mere fact that the items in question came lawfully within the officer‘s plain view . . . alone cannot supplant the requirement of probable cause.” Arizona v Hicks, 480 US 321, 327; 107 S Ct 1149; 94 L Ed 2d 347 (1987).
There is probable cause to issue a search warrant where there is a “substantial basis” for inferring a “fair probability” that contraband or evidence of a crime will be found in a particular place. People v Russo, 439 Mich 584, 604; 487 NW2d 698 (1992). Although Russo involved a search warrant, the analysis is equally applicable to the question of probable cause in a search conducted without a warrant. See People v Champion, supra, p 113.
The existence of probable cause turns on the degree of certainty held by the police officer that the item to be seized is contraband. There is no bright-line rule; rather, the existence of probable cause is determined by the circumstances of each case. Russo, supra, pp 606-607. Because of the substantially similar nature of the sensory perceptions as foundations for probable cause, I would apply the same probable cause analysis to the plain smell exception.
In the instant case, Officer Walendzik testified that the odor of marijuana in the defendants’ vehicle was
It was only after Officer Walendzik‘s perception of marijuana was confirmed by Officer Bivins that defendant Taylor was asked to get out of his vehicle and submit to a protective patdown for weapons. Simultaneously, Officer Bivins made a similar request of defendant Pimpleton and found a loaded handgun on him. Because the search was based on probable cause, the seizure was legal.
I would hold that the odor of marijuana emanating from the vehicle provided probable cause to believe that there was a present violation of the controlled substance law.10
In so holding, rather than simply declining to adopt the reasoning of People v Hilber, 403 Mich 312; 269 NW2d 159 (1978) and People v Chernowas, 111 Mich App 1; 314 NW2d 505 (1981), I would address the continuing viability of a distinction in Michigan case law between the odor of unburned marijuana and the odor of burned marijuana as a basis for probable cause to search a vehicle without a warrant. This distinction was first articulated in Michigan in the plurality opinion of People v Hilber, supra.11 In Hilber, two justices reasoned that the odor of smoked marijuana does not provide probable cause for a vehicle search separate and apart from a search of the smoker and the vehicle he is occupying or has just occupied, following his reasonable identification as the smoker.12
I would overrule Chernowas, and clarify that the distinction articulated in Hilber between the smell of burned and unburned marijuana was not controlling.14 Further, I would find that the purported distinction is irrelevant to the existence of probable cause because the odor of unburned and the odor of burned mari-
car, this did not constitute sufficient probable cause that the defendant was the smoker or that there was unsmoked marijuana in the car. 403 Mich 321. The officer had not been trained in determining how long the residual odor of marijuana lingers, and his statements in this regard were too indefinite and indeterminate. In the concurring opinion, two justices said that an analysis of the particular circumstances in Hilber was unnecessary because the cigarettes were seized illegally, and any evidence seized afterward must be suppressed as fruit of the poisonous tree under Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963). The three dissenting justices in Hilber would have found probable cause for a vehicle search on the basis of the odor of marijuana, without regard to whether it was unsmoked, burning, burned, or in some other form.
III
The plain view, plain feel, and plain smell exceptions share a threshold requirement that police officers be at a lawful observation point when they perceive the presence of contraband. Horton v California, 496 US 128; 110 S Ct 2301; 110 L Ed 2d 112 (1990) (view); Minnesota v Dickerson, supra (feel); United States v Johnston, 497 F2d 397 (CA 9, 1974) (smell). In this case, the vantage point from which Officer Walendzik recognized the odor of burned marijuana was at the driver‘s door of the vehicle after defendant Taylor rolled down his window. The preliminary question under the Fourth Amendment is whether this initial encounter amounted to a seizure.
Police questioning, without more, is unlikely to result in a seizure under the Fourth Amendment. Immigration & Naturalization Service v Delgado, 466 US 210, 216; 104 S Ct 1758; 80 L Ed 2d 247 (1984). Terry v Ohio, 392 US 1, 19, n 16; 88 S Ct 1868; 20 L Ed 2d 889 (1968), defines seizure as a “physical force or show of authority [that] has in some way restrained the liberty of a citizen. . . .” Not all encounters between police officers and citizens rise to the level of a seizure.16 The encounter must, when
As stated in Florida v Royer, 460 US 491, 497; 103 S Ct 1319; 75 L Ed 2d 229 (1983):
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter
[T]he Court increasingly has opted in the favor of public safety. It has done so by electing to raise the threshold of what is meant by a “seizure,” rather than by deciding to lower the standard for the “minimal level of objective justification [required] to validate the detention or seizure.” In sum, in the interest of permitting the police to do their job, consistent with individual rights, the Court apparently has found it preferable to deem nonintimidating police questioning a “consensual encounter,” not a seizure, rather than to risk justifying seizures based on marginally suspicious circumstances which are capable of innocent explanation. [United States v Barnes, 496 A2d 1040, 1044-1045 (DC App, 1985) (citations omitted).]
into a seizure requiring some level of objective justification. [Citations omitted.]
A seizure may be indicated by the “threatening presence of several officers . . . some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer‘s request might be compelled.” Mendenhall, supra, p 554. However, there is no Fourth Amendment proscription against a police officer approaching a person in a public place and putting questions to him if he is willing to listen. Royer, supra.
In this case, a lone police officer approached the vehicle on foot to investigate the intentions of the passengers. I agree with the majority that Officer Walendzik did not violate the Fourth Amendment by approaching the vehicle and putting questions to the occupants. Given the fact that two or three arrests were made in the parking lot each night, it would have been considered poor police work had Officer Walendzik chosen not to investigate this vehicle. Officer Walendzik‘s weapon was not drawn, and he had activated neither his vehicle‘s siren nor its flashing lights. There is no evidence that the defendants’ vehicle was blocked by the officer‘s vehicle and there was no form of pursuit. Furthermore, I would note that the defendants’ expectation of privacy was reduced because they were in a vehicle. United States v Ross, 456 US 798; 102 S Ct 2157; 72 L Ed 2d 572 (1982).
The circumstances surrounding Officer Walendzik‘s initial encounter with the defendants was substantially less intimidating than the encounters held not to be seizures in other cases. For example, in People v
The initial encounter between Officer Walendzik and the defendants could not have been less threatening to the five occupants of the vehicle or less likely to invoke a perception of seizure.
IV
This case is an example of an initially consensual encounter resulting in a search and seizure. Because the search and seizure was based on probable cause founded in the odor of marijuana, I would hold that it was valid under the Fourth Amendment.
BOYLE and RILEY, JJ., concurred with WEAVER, J.
Notes
Furthermore, in Almeida-Sanchez v United States, 413 US 266, 269; 93 S Ct 2535; 37 L Ed 2d 596 (1973), the Court stated, “Automobile or no automobile, there must be probable cause for the search.” Finally, in South Dakota v Opperman, 428 US 364, 386; 96 S Ct 3092; 49 L Ed 2d 1000 (1976), Justice Marshall, in his dissent, recognized the principle that there is only one standard for determining probable cause. He stated:[T]he exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met. . . . Under the vehicle exception to the warrant requirement, “[only] the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize.” [Citation omitted; bracketed words supplied.]
Therefore, while a person in a vehicle may have a diminished expectation of privacy, the fact remains that a search of the vehicle without a warrant still must be based on probable cause, the same probable cause as is needed to obtain a warrant to search a home. See discussion in part III regarding lawful vantage point.The Court correctly observes that some prior cases have drawn the distinction between automobiles and homes or offices in Fourth Amendment cases; but even as the Court‘s discussion makes clear, the reasons for distinction in those cases are not present here. Thus, Chambers v Maroney, 399 US 42 (1970), and Carroll v United States, 267 US 132 (1925), permitted certain probable-cause searches to be carried out without warrants in view of the exigencies created by the mobility of automobiles, but both decisions reaffirmed that the standard of probable cause necessary to authorize such a search was no less than the standard applicable to search of a home or office. Chambers at 51; Carroll at 155-156.
In the years since Terry . . . the Court in case after case of street encounter has had to resolve the “tensions involved” in protecting both the public‘s interest in safety and the individual‘s right of personal security.