State of Michigan v LAMONT KING
SC: 114761
Michigan Supreme Court
462 Mich 904; 612 NW2d 159
June 30, 2000, Decided
Prior case history: COA: 217787. Recorder's Ct: 98-900004.
Before: Kelly, J., dissents.
OPINION
By order of September 22, 1999, the delayed application for leave to appeal from the April 26, 1999 decision of the Court of Appeals was held in abeyance pending the decision in People v Kazmierczak (Docket No. 113452). On order of the Court, the decision having been issued on February 10, 2000, 461 Mich 411, 605 NW2d 667 (2000), the delayed application is again considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REMAND this matter to the district court for reconsideration in light of Kazmierczak.
DISSENT BY: Kelly
DISSENT
Kelly, J., dissents and states as follows:
I would grant leave to appeal.
In this case, a Detroit police officer gave the only testimony at the preliminary examination. He testified that he stopped defendant's car for a traffic violation. As he approached the vehicle, he detected a strong odor of marijuana coming from the interior that "smelled pretty fresh." He asked defendant if he had been smoking marijuana in the vehicle. Defendant replied that he had done so "earlier that day."
The officer testified that he asked defendant to step out of the vehicle and, as he did, defendant "entered into [the] realm of Officer's safety." This was the officer's justification for patting down defendant "for offensive weapons as well as contraband." During the pat down, the officer discovered cocaine in defendant's front left pants pocket. He also found $ 1,200 on his person. The trial court dismissed the case on the ground that there was insufficient evidence to support the arrest.
Under current Michigan law, the officer had probable cause to search defendant's vehicle on the basis of his detection of the odor of marijuana and defendant's admission. People v Kazmierczak, 461 Mich 411, 605 NW2d 667 (2000). However, the automobile exception to the warrant requirement 1 did not entitle him to search defendant's person when he searched the automobile. In United States v Di Re, 2 the United States Supreme Court declined to find that "a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled." 3
1 Because of the pervasive regulation and mobility of automobiles, the Fourth Amendment permits officers to search them without obtaining a warrant if probable cause exists to believe contraband is present. Pennsylvania v Labron, 518 US 938, 940, 135 L Ed 2d 1031, 116 S Ct 2485 (1996). Passengers' belongings that could conceal contraband are also subject to such a search. Maryland v Dyson, 527 US 465, 467, 144 L Ed 2d 442, 119 S Ct 2013 (1999).
2 332 US 581, 587, 68 S Ct 222, 92 L Ed 210 (1948). 3 The Government says it would not contend that, armed with a search warrant for a residence only, it could search all persons found in it. But an occupant of a house could be used to conceal this contraband on his person quite as readily as can an occupant of a car. Necessity, an argument advanced in support of this search, would seem as strong a reason for searching guests of a house for which a search warrant had issued as for search of guests in a car for which none had been issued. By a parity of reasoning with that on which the Government disclaims the right to search occupants of a house, we suppose the Government would not contend that if it had a valid search warrant for the car only it could search the occupants as an incident to its execution. How then could we say that the right to search a car without a warrant confers greater latitude to search occupants than a search by warrant would permit? [Id.; cf. Ybarra v Illinois, 444 US 85, 93-96, 62 L Ed 2d 238, 100 S Ct 338 (1979); Wyoming v Ho 526 US 295, 296, 143 L Ed 2d 408, 119 S Ct 1297 (1999).]
The officer also had probable cause to conduct a Terry 4 frisk and pat down defendant's exterior clothing for weapons in order to ensure his safety. 5 However, here, the officer did not limit the pat down of the defendant to a search for weapons. He patted down defendant looking for weapons and contraband. This exceeded the scope of the exigency, the officer's safety, that justified the search at its inception. Minnesota v Dickerson, 508 US 366, 375-376, 124 L Ed 2d 334, 113 S Ct 2130 (1993); Champion, 452 Mich 92, 104-105, 549 NW2d 849 (1996).
4 Terry v Ohio, 392 US 1, 20 L Ed 2d 889, 88 S Ct 1868 (1968). 5 An investigatory stop may escalate into a protective pat down search for weapons if "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Such a search is limited to the outer clothing of the suspect in an attempt to discover weapons which might be used in an assault. Terry v Ohio, supra at 27; see also People v Champion, 452 Mich 92, 549 NW2d 849 (1996).
The United States Supreme Court carefully limited the scope of a Terry stop-and-frisk, aware of the danger "'that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.'" Dickerson, supra at 378. The search in this case exceeded the bounds of a permissible Terry frisk.
Thus, it would appear that the officer could be justified in searching defendant's person only incident to his arrest. Aside from the minor traffic violation, no felony, misdemeanor, or ordinance violation was committed in the officer's presence. MCL 764.15(1)(a); MSA 28.874(1)(a). Defendant's admission to smoking marijuana earlier did not suffice to establish probable cause that he was guilty of driving under the influence of a controlled substance when arrested. MCL 257.625(1)(a); MSA 9.2325(1)(a).
There is no indication from the record that a custodial arrest was made before the search in this case. "[A] search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success." United States v Di Re, 332 US 581, 595, 68 S Ct 222, 92 L Ed 210.
Thus, I believe that the district court did not abuse its discretion, but was correct in dismissing the case. The officer had no authorization to search defendant for contraband before arrest. Hence, the initial arrest was based on insufficient evidence, and no search incident to arrest was proper.
Remanding this case to the district court for reconsideration in light of Kazmierczak serves no useful purpose. The judge found that the search of defendant's person was a search incident to arrest.
On remand, Kazmierczak would be helpful to the trial judge if the question were whether the odor of marijuana established probable cause for search of the vehicle. However, the search under consideration was not of a vehicle, but of defendant's person. Kazmierczak does not hold that, as part of the search for contraband in a motor vehicle, an officer is entitled to search the occupants of the vehicle. It does not validate such a search on the theory that the contraband could be concealed on their persons. Therefore, a remand to consider Kazmierczak is akin to sending the trial judge software that will not run on his computer.