PEOPLE OF MI V MICHAEL ROBERT CUSTER
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
_
C hief Justice
Opinion
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 30, 2001
THE PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant/
Cross-Appellee,
v
No.
117390
MICHAEL ROBERT CUSTER,
Defendant-Appellee/
Cross-Appellant.
BEFORE THE ENTIRE BENCH
MARKMAN, J.
After arresting defendant’s companion for possessing
marijuana, a police officer conducted a patdown search of
defendant. The officer removed what he believed to be blotter
acid from defendant’s pocket and placed it on the roof of the
vehicle.
When the officer finished searching defendant, he
retrieved the object from the roof of the vehicle and observed
what appeared to be three photographs facing down.
them over to examine the fronts of them.
He turned
The photographs
depicted defendant’s companion posed in a house containing
large quantities of marijuana. The police went to defendant’s
house
and
observed
photographs.
furnishings
similar
to
those
in
the
They obtained a search warrant for defendant’s
house and seized marijuana therein.
Defendant was charged with several drug-related offenses.
The district court dismissed the charges on the ground that
the patdown search of defendant had been illegal. The circuit
court affirmed the district court’s decision.
The Court of
Appeals affirmed the circuit court’s decision on the ground
that, even though the patdown search of defendant had been
legal,
the
police
officer
should
not
have
turned
photographs over to examine the fronts of them.
the
We granted
leave to consider whether it was proper for the police officer
to: (1) briefly detain defendant, (2) patdown defendant, (3)
seize
the
photographs
from
defendant,
and
(4)
photographs over to examine the fronts of them.
turn
the
We conclude
that it was. Accordingly, we would affirm the decision of the
Court of Appeals that the brief detention of defendant, the
patdown search of defendant, and the initial seizure of the
photographs from defendant were proper, and we would reverse
2
the decision of the Court of Appeals that the police officer’s
turning over and examining the photographs was improper.
I. FACTS
AND
PROCEDURAL HISTORY
Two police officers were dispatched to a residence in Bay
City to investigate a possible trespass. When they arrived at
the location, the officers observed a parked vehicle occupied
by Billy Holder and defendant. One of the officers approached
Holder, the driver of the vehicle, and asked him to get out of
the vehicle.
Because the officer believed that Holder was
intoxicated, the officer advised Holder that he could not
drive, and thus his vehicle would have to be towed at his own
expense. When the officer asked Holder to demonstrate that he
had
enough
money
to
pay
for
the
towing,
Holder
removed
approximately $500, mostly in ten and twenty dollar bills,
from his pants pocket, along with a plastic baggie that
contained marijuana.
him in the patrol car.
The officer arrested Holder and placed
Once Holder was placed in the patrol
car, Holder yelled to defendant, “don’t tell them a f———
thing.”
The officer then asked defendant to step out of the
vehicle, and conducted a patdown search of defendant. At this
point, the officer anticipated finding weapons and drugs on
defendant.
During the patdown, the officer felt what he
believed to be a two-by-three-inch card of blotter acid in
defendant’s front pants pocket.
3
The officer’s belief was
based on his knowledge that blotter acid is often contained on
sheets of cardboard.
The object was actually three Polaroid
photographs that showed Holder posed with large quantities of
marijuana in the living room of defendant’s house.
The
officer removed the photographs from defendant’s pocket and
placed them on the roof of Holder’s vehicle face down.
It was
only after finishing the patdown of defendant moments later,
that the officer picked the photographs up and turned them
over to examine their fronts.
After the photographs were seized from defendant by the
police, a Bay City detective contacted a Mount Pleasant
detective and provided him with three addresses, including
defendant’s
contained
address,
to
furnishings
photographs.
The
determine
similar
Mount
if
to
Pleasant
any
those
of
the
found
detective
houses
in
peered
the
into
defendant’s house through the front window using a flashlight.
His
observation
photographs
was
of
furnishings
used
to
similar
obtain
a
to
search
those
in
the
warrant
for
defendant’s house, from which marijuana was seized.
Defendant was charged with delivery and manufacture of 5
to
45
kilograms
of
marijuana,
MCL
333.7401(2)(d)(ii),
maintaining a drug house, MCL 333.7405(d), and conspiring to
deliver 5 to 45 kilograms of marijuana, MCL 750.157a.
The
district court suppressed the photographs taken from defendant
4
and the evidence obtained from the search warrant executed at
defendant’s home on the basis that the patdown search of
defendant had been illegal.
As a result of such suppression,
the district court dismissed the charges against defendant.
The circuit court then affirmed the decision of the district
court, and the Court of Appeals affirmed the decision of the
circuit court.
242 Mich App 59; 618 NW2d 75 (2000).
However,
the Court of Appeals concluded that the patdown search of
defendant had been legal, but that the officer should not have
turned
the
photographs
Additionally,
the
over
circuit
to
look
court
at
found
their
the
fronts.
search
of
defendant’s home to be improper, but the Court of Appeals
never
reached
that
issue.1
This
Court
granted
the
prosecutor’s application for leave to appeal and defendant’s
application for leave to cross-appeal.
II. STANDARD
OF
463 Mich 907 (2000).
REVIEW
This Court reviews a trial court's factual findings in a
suppression hearing for clear error.
People v Stevens (After
Remand), 460 Mich 626, 631; 597 NW2d 53 (2000); People v
Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983).
However,
“[a]pplication of constitutional standards by the trial court
1
We do not address whether the search of defendant’s
home was proper because that issue is not properly before us.
We remand this matter to the Court of Appeals for their
consideration.
5
is not entitled to the same deference as factual findings.”
People v Nelson, 443 Mich 626, 631, n 7; 505 NW2d 266 (1993).
The application of the exclusionary rule to a violation of the
Fourth Amendment is a question of law. Stevens, supra at 631.
Questions
of
law
reviewed de novo.
relevant
to
the
suppression
issue
are
Id.; People v Sierb, 456 Mich 519, 522; 581
NW2d 219 (1998).
III. ANALYSIS
A. DETENTION
The first issue is whether the initial detention of
defendant was invalid under the Fourth Amendment of the United
States
Constitution
guarantee
the
right
and
of
Const
1963,
persons
unreasonable searches and seizures.
1963, art 1, § 11.2
to
art
be
1,
§
11,
secure
which
against
US Const, Am IV; Const
“[A] police officer may in appropriate
2
Michigan’s
constitutional
prohibition
against
unreasonable searches and seizures “is to be construed to
provide the same protection as that secured by the Fourth
Amendment [of the federal constitution], absent, ‘compelling
reason’ to impose a different interpretation.”
People v
Collins, 438 Mich 8, 25; 475 NW2d 684 (1991). However, if the
item seized is a “narcotic drug . . . seized by a peace
officer outside the curtilage of any dwelling house in this
state,”
Michigan’s
constitutional
prohibition
against
unreasonable searches and seizures is not applicable. Const
1963, art 1, § 11. Since marijuana is considered a narcotic
drug for purposes of art 1, § 11, if the marijuana had been
seized outside the curtilage of a dwelling house, Michigan’s
constitutional prohibition against unreasonable searches and
seizures would not be applicable, although the Fourth
Amendment’s would be. Michigan v Long, 463 US 1032, 1044, n
10; 103 S Ct 3469; 77 L Ed 2d 1201 (1983). However, in the
6
circumstances and in an appropriate manner approach a person
for purposes of investigating possibly criminal behavior even
though there is no probable cause to make an arrest.”
Terry
v Ohio, 392 US 1, 22; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
A
brief, on-the-scene detention of an individual is not a
violation of the Fourth Amendment as long as the officer can
articulate a reasonable suspicion for the detention. Michigan
v Summers, 452 US 692, 699-700; 101 S Ct 2587; 69 L Ed 2d 340
(1981); People v Shabaz, 424 Mich 42, 56-57; 378 NW2d 451
(1985).
“Police officers may make a valid investigatory stop
if they possess ‘reasonable suspicion’ that crime is afoot.”
People v Champion, 452 Mich 92, 98; 549 NW2d 849 (1996).
In this case, the police were dispatched to a residence
to investigate a complaint regarding a possible trespass.
When
they
arrived
at
the
scene,
they
found
Holder
and
defendant in a parked vehicle, and very briefly questioned
them about their presence in the area.
They determined that
Holder, the driver of the vehicle, was too intoxicated to be
driving.
Therefore, they began to make arrangements for
Holder’s car to be towed so that defendant and others on the
road
would
not
be
jeopardized.
While
making
these
present case, the marijuana was found in the curtilage of
defendant’s dwelling house, and thus both the Fourth
Amendment’s and Michigan’s constitutional prohibition against
unreasonable searches and seizures are applicable.
7
arrangements,
Holder
(presumably
inadvertently)
pulled
a
baggie of marijuana out of his pocket, and was arrested.
Immediately after this arrest, the police conducted a patdown
search of defendant.
In summary, before the marijuana was found, the police,
upon
a
complaint
of
criminal
conduct,
properly
detained
defendant in a public place, for the purpose of determining
whether a crime had been committed.
See Shabaz, supra at 56.
Further, after the marijuana was found, the police properly
detained defendant for the purpose of conducting a limited
search for weapons on the basis of reasonable suspicion.
Champion, supra at 99.
See
Therefore, we conclude that the brief
detention of defendant in this case was valid under the Fourth
Amendment of the United States Constitution and Const 1963,
art 1, § 11.
B.
PATDOWN SEARCH
The next issue is whether the patdown search of defendant
was invalid under the Fourth Amendment of the United States
Constitution and its counterpart in the Michigan Constitution.
US Const, Am IV; Const 1963, art 1, § 11.
A police officer
may perform a limited patdown search for weapons if the
officer has a reasonable suspicion that the individual is
armed, and thus poses a danger to the officer or to other
persons.
Terry, supra at 27; Champion, supra at 99.
8
“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 at 27.
“Reasonable suspicion entails something more than an inchoate
or unparticularized suspicion or ‘hunch,’ but less than the
level of suspicion required for probable cause.”
Champion,
supra at 98. In order to demonstrate reasonable suspicion, an
officer must have “specific and articulable facts, which,
taken together with rational inferences from those facts,
reasonably warrant [the] intrusion.”
Terry, supra at 21.
It is the totality of the circumstances in a given case
that determine whether a patdown search is constitutional.
Champion, supra at 112.
passenger
in
a
vehicle
In this case, defendant was a
in
which
criminal
activity
was
discovered. The driver of the vehicle, Holder, was found with
a large amount of cash in small denominations and a baggie of
marijuana, which led the officer to believe that Holder was
selling drugs. The officer was told that defendant and Holder
had been together all evening.
After Holder was arrested and
placed in the patrol car, he yelled to defendant not to tell
the police anything.
The officer testified that, because of
his twenty-three years of experience and training as an
officer, he knew that when drugs are involved, weapons are
9
also often involved. Therefore, the basis for his decision to
conduct a patdown search of defendant was that defendant might
be in the possession of a weapon, thereby posing a threat to
himself
or
his
circumstances
reasonable
partner.
before
us,
suspicion
to
Under
we
find
warrant
the
that
a
totality
the
patdown
of
the
police
had
search
of
defendant.3
Furthermore, the fact that the officer did not fear for
his safety before the marijuana was found does not change our
conclusion that the patdown search of defendant was proper.
The relevant inquiry when determining whether the police have
properly conducted a patdown search is “whether the officer’s
action was justified at its inception . . . .”
at 20.
Terry, supra
Therefore, the fact that the officer did not fear for
his safety before the marijuana was found is irrelevant; what
is relevant is that, after it was found, the officer was
concerned for his safety, and this was when the officer
conducted the patdown search of defendant.
3
Additionally, the
We agree with the dissent that “defendant could not be
stopped and frisked merely on the basis that he was associated
with Holder. Rather, the circumstances had to indicate that
the defendant himself was articulably and reasonably suspected
of criminal wrongdoing, and suspected of being armed and
dangerous.” Post at 11. We further agree with the dissent
that the fact that defendant was associated with Holder, along
with the other circumstances in this case, did indicate that
defendant himself was, articulably and reasonably, suspected
of being armed. Thus, the police officers were justified in
conducting a patdown search of defendant.
10
fact that the officer anticipated finding drugs on defendant
as a result of this search does not change our conclusion that
the patdown search of defendant was proper. The United States
Supreme Court has held that
evenhanded law enforcement is best achieved by the
application of objective standards of conduct,
rather than standards that depend upon the
subjective state of mind of the officer. The fact
that an officer is interested in an item of
evidence and fully expects to find it in the course
of a search should not invalidate its seizure if
the search is confined in area and duration by
. . . a valid exception to the warrant requirement.
[Horton v California, 496 US 128, 138; 110 S Ct
2301; 110 L Ed 2d 112 (1990).]
The proper focus is on the actions of the officer, not his
thoughts.
officer
In the present case, it is irrelevant that the
was
secondarily
looking
for
drugs
because
the
principal purpose of the patdown search of defendant was to
ensure that he did not have any weapons. Accordingly, we find
that
the
objective
facts
that
prompted
the
officer
to
determine that his safety, and that of his partner, might be
at risk, were sufficient to warrant the patdown search of
defendant.
Therefore, we conclude that the patdown search of
defendant was valid under the Fourth Amendment of the United
States Constitution and Const 1963, art 1, § 11.
C. SEIZURE
OF THE
PHOTOGRAPHS
The third issue is whether the seizure of the photographs
from defendant during the patdown search of defendant was
11
invalid under the Fourth Amendment of the United States
Constitution and its counterpart in the Michigan Constitution.
US Const, Am IV; Const 1963, art 1, § 11.
This Court has
previously held:
The plain feel exception to the warrant
requirement adopted by the United States Supreme
Court in Minnesota v Dickerson, . . . allows the
seizure without a warrant of an object felt during
a legitimate patdown search for weapons when the
identity of the object is immediately apparent and
the officer has probable cause to believe that the
object is contraband. [Champion, supra at 100-101
(emphasis in the original).]
In conducting a patdown search, an officer may seize items
that the officer has probable cause to believe are contraband
from the plain feel.
“[A]n object felt during an authorized
patdown search may be seized without a warrant if the item’s
incriminating character is immediately apparent . . . .”
at 105.
Id.
Patdown searches are designed to discover weapons or
other instruments that might injure an officer. However, when
conducting a patdown search, police officers may also seize
noncontraband objects that they have probable cause to believe
feels like contraband.
Minnesota v Dickerson, 508 US 366,
373; 113 S Ct 2130; 124 L Ed 2d 334 (1993); Champion, supra at
105-106.
In this case, while conducting the patdown search of
defendant, the officer felt a two-by-three-inch object in
defendant’s pocket that he believed was a card of blotter
12
acid. His belief was based on his knowledge that blotter acid
was often contained on sheets of cardboard; his awareness that
cards of blotter acid were capable of fitting into a pants
pocket
like
that
he
felt
on
defendant;
the
antecedent
discovery of marijuana and a large amount of money on Holder,
the driver of the vehicle in which defendant was a passenger;
Holder’s shout to defendant not to tell the police anything;
the fact that defendant was with Holder during the entire
evening; and the officer’s training and twenty-three years of
experience as a police officer.
Under these circumstances,
the officer had probable cause to believe that the object he
felt in defendant’s pocket was contraband.
officer
was
justified
in
removing
the
Accordingly, the
photographs
from
defendant’s pocket pursuant to the plain feel exception to the
warrant requirement.
Furthermore, it is irrelevant that what was ultimately
retrieved from defendant’s pocket was not, in fact, blotter
acid. What is relevant is that the officer had probable cause
to believe that the photographs were blotter acid from his
plain feel.
“that
a
The probable cause requirement does not demand
police
officer
contraband . . . .”
‘know’
that
certain
items
are
Texas v Brown, 460 US 730, 741; 103 S Ct
1535; 75 L Ed2d 502 (1983).
Rather, “probable cause is a
flexible, common-sense standard.
13
It merely requires that the
facts
available
to
the
officer
would
‘warrant
a
man
of
reasonable caution in the belief,’ Carroll v United States,
267 US 132, 162; 45 S Ct 280; 69 L Ed 543 (1925), that certain
items may be contraband . . . ; it does not demand any showing
that such a belief be correct or more likely true than false.”
Id. at 742.
Once an officer has probable cause to believe
that an object is contraband, he may lawfully seize the
object.
Champion, supra at 105.
The fact that the officer is
ultimately wrong in his assessment of the object does not
render the seizure unlawful.
As discussed above, the officer
had probable cause to believe that the photographs were
blotter acid, and thus he lawfully seized them from defendant,
regardless of the fact that they subsequently proved instead
to be photographs. Therefore, we conclude that the seizure of
the photographs from defendant was valid under the Fourth
Amendment of the United States Constitution and Const 1963,
art 1, § 11.
D. SEARCH
OF THE
PHOTOGRAPHS
The final issue is whether the turning over and examining
of the fronts of the photographs that were validly seized was
invalid under the Fourth Amendment of the United States
Constitution and its counterpart in the Michigan Constitution.
US Const, Am IV; Const 1963, art 1, § 11.
A search for Fourth
Amendment purposes occurs only when “an expectation of privacy
14
that society is prepared to consider reasonable is infringed.”
United States v Jacobsen, 466 US 109, 113; 104 S Ct 1652; 80
L Ed 2d 85 (1984).
“If the inspection by police does not
intrude upon a legitimate expectation of privacy, there is no
‘search’ subject to the Warrant Clause.”
Illinois v Andreas,
463 US 765, 771; 103 S Ct 3319; 77 L Ed 2d 1003 (1983).
If a
person has no reasonable expectation of privacy in an object,
a search of that object for purposes of the Fourth Amendment
cannot occur.
Dickerson, supra at 375; People v Brooks, 405
Mich 225, 242; 274 NW2d 430 (1979).
In this case, when the officer turned the lawfully seized
photographs over to examine their fronts, this was not a
constitutional “search” for purposes of the Fourth Amendment.
At this point, defendant’s reasonable expectation of privacy
in the outer surfaces of the photographs had already been
significantly diminished, at least sufficiently to justify the
officer’s turning over and looking at the photographs.4
4
The
By a reasonable expectation of privacy being
“significantly diminished,” we describe a situation in which
an object, once lawfully seized, is subject at least to some
type of manipulation.
However, it does not mean that the
object is subject to any type of manipulation. Once an object
has
been
validly
seized,
an
individual’s
reasonable
expectation of privacy is not necessarily lost altogether,
allowing the police to manipulate the object any way they see
fit; rather, one’s reasonable expectation of privacy is merely
diminished, allowing the police to manipulate the object only
in a manner consistent with the individual’s remaining
reasonable expectation of privacy. A permissible manipulation
may well be different for different types of objects and for
15
photographs were already lawfully seized by the officer. Once
an object is lawfully seized, a cursory examination of the
exterior of that object, like that which occurred here, is
not, in our judgment, a constitutional “search” for purposes
of the Fourth Amendment.5
See Arizona v Hicks, 480 US 321,
325-326; 107 S Ct 1149; 94 L Ed 2d 347 (1987).
This is true
because a cursory examination of the exterior of an object
that has already been lawfully seized by the police will
produce no additional invasion of the individual’s privacy
interest.6
“It would be absurd to say that an object could be
different circumstances. The dissent asserts that “[i]f an
individual has a diminished expectation of privacy, as opposed
to no expectation of privacy, then necessarily he must have
some expectation of privacy in the place to be searched.”
Post at 35. We agree. However, in this case, the officer’s
turning over and viewing the other side of the photographs did
not, in our judgment, offend defendant’s remaining reasonable
expectation of privacy.
5
We conclude that once an object has been lawfully
seized, the police may move the object and look at its outer
surface or exterior. However, we do not address whether the
police may manipulate an object in any other sort of way,
i.e., open an object, once it has been lawfully seized because
that question is not before us.
Such a search is not
implicated by this case.
6
We use the terms “outer surfaces” and “exterior” to
mean essentially the same thing, i.e., the outside of an
object. We use the phrase “outer surfaces” when referring to
the photographs because photographs do not typically have an
exterior and an interior. We use the term “exterior” when
referring to objects in general to make the point that our
holding addresses whether the police can look at the exterior
of an object, not whether, under different circumstances, they
can look at their interior.
16
seized and taken from the premises, but could not be moved for
closer examination.” Id. at 326.
lawfully
seized
an
item
from
Once the police have
a
person,
that
person’s
reasonable expectation of privacy in the exterior of that item
has, at the least, been significantly diminished.7
“Once an
item has been seized in connection with a lawful search . . .
any expectation of privacy by a person claiming ownership is
significantly reduced.
(Wy, 1986).
MacLaird v Wyoming, 718 P2d 41, 44
For example, in United States v Bonfiglio, 713
F2d 932, 937 (CA 2, 1983), the Court held that the police, who
had lawfully seized a tape cassette, were not required to
obtain a search warrant before playing the cassette because,
once it had been lawfully seized, defendant no longer had a
reasonable expectation of privacy in the recorded statement.
Similarly, in this case, the police, who had lawfully seized
three photographs, were not required to obtain a search
warrant before turning the photographs over to examine their
outer surfaces because, once they had been lawfully seized,
defendant’s
reasonable
expectation
7
of
privacy
in
these
We conclude that once the police lawfully seized the
photographs, defendant’s reasonable expectation of privacy in
the outer surfaces of those photographs was, at the least,
significantly reduced. However, we do not address whether one
has a reasonable expectation of privacy in items inside a
container, i.e., purse, wallet, or luggage, once the police
have lawfully seized the container because, again, that
question is not before us.
17
surfaces had been significantly diminished, at least enough to
justify the cursory examination that occurred here.
Again,
photographs
we
emphasize
occurred
only
that
the
after
turning
the
lawfully seized them from defendant.
over
police
had
of
the
already
The reason that the
police, in this case, were allowed to turn the photographs
over was because they already had valid possession of them.
In Hicks, supra at 326, the United States Supreme Court held
that the police could not move stereo equipment to see the
serial numbers on it because the police lacked probable cause
to believe it was contraband before they moved it.
However,
in this case, the Court of Appeals correctly determined that
the photographs had already been lawfully seized by the
police.
Where Hicks involved a preseizure movement or action
by
police,
the
the
present
case
involves
a
postseizure
movement or action. The police cannot manipulate an object in
order to determine whether it is contraband; it must be
immediately apparent from plain view or plain feel that the
object is contraband.
Id.
In the present case, the police
did not move the object to examine it more closely in order to
determine whether it was, in fact, contraband; rather, the
police already had probable cause to believe that it was
contraband upon plain feel, and only after the object was
validly seized did they move the object to examine it more
18
carefully.
Because the officer had already lawfully seized
the photographs when he turned them over to examine their
fronts, and because defendant’s reasonable expectation of
privacy in the outer surfaces of those photographs had, at the
least,
been
significantly
diminished,
there
was
no
constitutional “search” for purposes of the Fourth Amendment.
As discussed above, it is irrelevant that the officer
originally suspected that the seized object was blotter acid
when it was actually photographs.
What is again relevant is
that the officer had probable cause to believe that the object
was contraband from plain feel, and thus he lawfully seized
it.
Once the object was lawfully seized, the officer could
look at its outer surfaces without obtaining a warrant.
Hicks, supra at 325-326.
See
In Brooks, supra at 250-251, this
Court held that it was not a search for Fourth Amendment
purposes
when
the
police
more
carefully
examined
a
noncontraband item that was seized from the defendant and that
the police by then lawfully possessed.
Once the police
lawfully have possession of an object, there is no need for
the police to obtain a search warrant to look at or scrutinize
the exterior of that object.
People v Rivard, 59 Mich App
530, 533-534; 230 NW2d 6 (1975).
This is true because once
the police lawfully take possession of an object, one’s
expectation of privacy with respect to that object has “at
19
least partially dissipated
. . . .”
Id.
For these reasons,
we conclude that the exterior of an item that is validly
seized during a patdown search may be examined without a
search warrant, even if the officer subsequently learns that
the item is not the contraband the officer initially thought
that it was before the seizure.
In this case, the Court of Appeals correctly determined
that the police officer had lawfully seized the photographs
and that the officer had lawfully placed the photographs face
down on the roof of the vehicle.
However, the Court of
Appeals held that the officer should not have turned the
photographs over to examine their fronts.
Apparently, the
Court of Appeals decision would have been different if the
photographs had been placed on the car face up, rather than
face down, because then the officer would not have had to turn
the photographs over to see their face; instead, they would
have been in plain view.
logic.
We cannot agree with that kind of
The law should not turn on the serendipity of which
side of the photographs were facing up when the officer
removed them from defendant’s pocket.
Rather, the law turns
on whether the officer’s actions violated any of defendant’s
constitutional rights.
We do not believe that they did.
Regardless of which side of the photographs came out facing up
or down, the officer could look at all the sides of the
20
photographs
without
constitutional
turning
over
violating
rights.
and
any
Therefore,
examining
of
we
the
of
defendant’s
conclude
other
side
that
the
of
the
photographs by the police, under the circumstances of this
case, did not deprive defendant of his constitutional rights
under the Fourth Amendment of United States Constitution or
Const 1963, art 1, § 11.
IV. RESPONSE
TO THE
DISSENT
The dissent agrees with our conclusion that the brief
detention of defendant was proper and that the patdown search
of defendant was proper.
However, it disagrees with our
conclusion that the seizure of the photographs from defendant
was proper and that the officer’s turning over and examining
of the photographs was proper.
A. SEIZURE
OF THE
PHOTOGRAPHS
The dissent concludes that the seizure of the photographs
from defendant was improper.
We, of course, disagree.
The
dissent contends that “[i]n Champion, the majority extended
the United States Supreme Court decision in Dickerson to
encompass plain feel seizures of items that might contain
contraband.”
Post at 21 (emphasis added).
First, this Court
did not extend anything in Champion; rather, it merely adopted
21
the
plain
feel
exception
as
articulated
by
Dickerson.8
Second, Champion did not conclude that under the plain feel
exception
the
police
may
seize
objects
that
might
be
contraband. Rather, Champion, supra at 105-106, concluded, as
did Dickerson, that under the plain feel exception the police
may seize an object from an individual only if they “develop[]
probable cause to believe that the item felt is contraband
. . . .”
The dissent asserts that the fact that the officer
thought that the object was blotter acid before he seized it
when,
in
fact,
the
object
was
actually
photographs
is
“certainly relevant to our determination whether probable
cause existed.”
Post at 23.
However, even assuming that it
is relevant, it is certainly not dispositive.
The United
States Supreme Court has said “probable cause . . . does not
demand any showing that such a belief be correct.”
8
Brown,
The dissent asserts that Champion did extend Dickerson
because “the very type of additional search prohibited by
Dickerson occurred in Champion” as evidenced by the fact that
“before the officer in Champion could determine a pill bottle
could be classified as contraband, he had to determine somehow
that it was in fact used for an illegal purpose.” Post at 27,
n 11. However, in our judgment, no such “additional search”
occurred in Champion. Rather, the officer had probable cause
to believe that the pill bottle was contraband without having
to move, squeeze, or otherwise manipulate the pill bottle.
Contrary to the dissent, the officer did not have “to
determine somehow that it was in fact used for an illegal
purpose”; rather the officer merely had to have probable cause
to believe that it was contraband.
22
supra at 742.
Accordingly, in order to demonstrate probable
cause, it is not necessary to show that the officer knew that
the object was contraband before he seized it.
Rather, it is
only necessary, as was done in this case, to show that a
reasonably cautious person in the circumstances would have
been warranted in the belief that the object was contraband.
Brown, supra at 742.
The dissent next asserts that the officer “would have had
to manipulate the object in order to determine that it was in
fact contraband.”
move,
squeeze,
or
Post at 27.
otherwise
However, the officer did not
manipulate
the
contents
of
defendant’s pocket in order to determine that the object was
contraband.
Rather, the officer merely patted down defendant
and, when his hand came upon the object, he had probable cause
to believe that this object was contraband, and thus he
lawfully seized it from defendant’s pocket.
The dissent further contends that we rely on the same
factors to conclude that there was probable cause to believe
that the object was contraband as we do to conclude that there
was reasonable suspicion to believe that defendant was armed.
Even if this were correct, we question its relevancy.
We, of
course, recognize that probable cause requires a higher level
of justification than does reasonable suspicion.
However, it
is hardly improper to rely on the same factors to justify
23
each.
This is true because reasonable suspicion is merely a
lower threshold of justification than probable cause.
If,
therefore, an officer has probable cause, he necessarily also
has reasonable suspicion.
Although it is then possible to
rely on the same factors to justify each, we do not do so in
this case.
Rather, there are two relevant factors that
support our finding of probable cause that do not support our
finding of reasonable suspicion, i.e., the officer’s knowledge
that blotter acid is often contained on sheets of cardboard
and his knowledge that such cards of blotter acid could fit
into a pocket like that of defendant’s.
B. SEARCH
OF THE
PHOTOGRAPHS
The dissent concludes that, even assuming that the police
lawfully seized the photographs from defendant’s pocket, the
officer’s turning over and examining of the photographs was
improper.
We again disagree.
The dissent contends that Champion “did not allow a
subsequent search merely because the item had been seized.
Rather, it required the additional justification that the
search occur incident to arrest.”
added).
First,
the
Champion
Post at 21, n 7 (emphasis
Court
did
not
require
the
additional justification; it merely concluded that, under the
facts, which included a search incident to arrest, the search
was lawful.
Second, and more importantly, the search in
24
Champion involved the opening of a container, whereas in this
case, the police merely turned photographs over and viewed
their other side.
We merely hold that, once an object has
been lawfully seized, the police may shift the object and look
at its exterior; we do not address here whether the police may
open an object and look at its interior.9
The dissent next contends that “once the officer removed
the photographs from the defendant’s pocket, it became clear
that the object removed was not in fact cardboard . . .
[t]hus, . . . the police no longer had justification for
infringing upon the defendant’s right to possess private
photographs.”10
Post at 30-31.
However, given that the
officer had already lawfully removed the photographs from
9
The dissent asserts that “[t]he majority seems to argue
that the result might be different were the officer required
to open a container and look inside. Yet, how can this be
true considering that the majority places primary reliance on
Champion, a case in which the officer did just that?” Post at
32, n 16. The dissent answers its own question: Champion “did
not allow a subsequent search merely because the item had been
seized. Rather, it required the additional justification that
the search occur incident to arrest.” Post at 21, n 7.
10
Contrary to the dissent’s assertion, we do not, by
failing to reference certain language contained in the
dissent, post at 31, n 14, fail to appreciate “that a search
or seizure without a warrant is circumscribed by the warrant
exception justifying it.”
Rather, we conclude that no
“search” occurred for purposes of the Fourth Amendment where
the officer merely turned the lawfully seized photographs over
and viewed their other side, and thus no “search” without a
warrant occurred, requiring the application of a warrant
exception.
25
defendant’s pocket, the additional action on the part of the
police officers in turning them over did not constitute an
invasion of the defendant’s privacy.
The dissent asserts that “[u]nder the majority view, an
individual’s expectation of privacy in a personal possession
would evaporate at the moment an officer removes the item from
the individual’s control, even when the officer’s belief is
wrong.”
Post at 32 (emphasis added).
statement of our holding.
This is not an accurate
First, we make it quite clear that
we do not conclude that, once the police lawfully seize an
object
from
an
individual,
that
individual’s
reasonable
expectation of privacy in that object is altogether lost.
Instead,
we
expectation
merely
of
conclude
privacy
in
that
the
defendant’s
outer
reasonable
surfaces
of
the
photographs had been diminished, at least sufficiently to
justify the officer’s merely turning over and looking at the
other side of the photographs.11
11
Second, we do not even
The dissent asks “[w]hen would a legitimate expectation
of privacy preclude a further search under the majority’s
rationale?” Post at 32, n 16. The answer is that it would
always preclude a further search. However, a further search
would not necessarily be precluded where there is a warrant or
an applicable exception to the warrant requirement. If an
officer improperly seizes an object from an individual’s
pocket, that individual would have a legitimate expectation of
privacy that would preclude any further “search” of that
object. If, on the other hand, an officer properly seizes an
object from an individual’s pocket, that individual would also
have a legitimate expectation of privacy, but, under the
specific circumstances of the instant case, such expectation
26
conclude that one’s reasonable expectation of privacy is
diminished whenever an officer removes an object from one’s
control, as the dissent implies.
Rather, we conclude that
one’s reasonable expectation of privacy is diminished only
when an officer lawfully seizes an object from an individual.
In order for an officer to lawfully seize an object from an
individual, he must satisfy certain constitutional safeguards.
Only after these safeguards have been satisfied can a police
officer lawfully seize an object from an individual and view
its exterior.
The
dissent
further
asserts
that
“the
majority
effectively creates an exception to the warrant requirement
that permits a search incident to seizure.”
Post at 34.
However, our opinion in no way, permits a Fourth Amendment
“search” incident to seizure. Instead, we conclude that there
was no “search” in this case when the police turned the
photographs over to examine their other side because, in order
for there to be a “search,” one must have a reasonable
expectation of privacy in the object being “searched.”
this
case,
the
police
had
already
lawfully
seized
In
the
would not arise until some time after the officer had merely
turned over the photographs to view their other side. As we
have already made clear, we are not addressing whether the
police may manipulate a lawfully seized object in some manner
beyond what has specifically occurred here because that
question is not before us.
27
photographs,
and,
therefore,
defendant’s
reasonable
expectation of privacy in the photographs already had been
significantly diminished, at least sufficiently to justify the
officer’s
cursory
examination
of
the
other
side
of
the
photographs.12
CONCLUSION
We conclude that the brief detention of defendant, the
patdown search of defendant, the seizure of the photographs
from defendant, and the examination of the photographs were
each proper.
suspicion
First, because the officer had reasonable
that
criminal
activity
was
detention of defendant was proper.
afoot,
the
brief
Second, because the
officer had reasonable suspicion that defendant might be
armed, and thus pose a danger to him and to other persons, the
patdown search of defendant was proper.
Third, because the
officer had probable cause to believe that the object he felt
in defendant’s pocket was contraband, the seizure of the
photographs from defendant was proper under the plain feel
exception
to
the
warrant
requirement.
12
Finally,
because
The dissent of Justice Young presents in more undiluted
form the argument that the turning over of the photographs to
view their other side constituted a Fourth Amendment
violation. For the reasons set forth in this opinion, we do
not believe that the constitutional underpinnings of the
officer’s conduct here rest upon whether the lawfully seized
photographs were seized facing up or facing down, or adjusted
from one position to the other.
28
defendant’s reasonable expectation of privacy in the outer
surfaces of the lawfully seized photographs had, at the least,
been significantly diminished, no “search” for purposes of the
Fourth Amendment took place when the officer turned the
photographs over and examined their other side.
Accordingly,
we would reverse the Court of Appeals decision that the
officer’s turning over and examining of the photographs was
improper.
for
a
We would remand this case to the Court of Appeals
determination
whether
the
subsequent
search
of
defendant’s home was proper.
CORRIGAN , C.J., and TAYLOR , J., concurred with MARKMAN , J.
29
S T A T E
O F
M I C H I G A N
SUPREME COURT
THE PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant/
Cross-Appellee,
v
No.
117390
MICHAEL ROBERT CUSTER,
Defendant-Appellee/
Cross-Appellant.
____________________________________
WEAVER, J. (concurring).
I concur in the result of the majority opinion.
I write
separately to emphasize that the dissenting opinions are
inconsistent with the reasoning in Arizona v Hicks, 480 US
321; 107 S Ct 1149; 94 L Ed 2d 347 (1987), and this Court’s
opinion in People v Champion, 452 Mich 92; 549 NW2d 849
(1996).
If one believes that the initial seizure of the
photographs was valid under the plain feel exception, then the
subsequent examination of those photographs was also valid.
Hicks,
supra
at
326;
Champion,
supra
at
105-106,
117.
However, I caution that if Champion is construed too broadly,
it would be appropriate to revisit the proper limits of that
decision in the future.
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant/
Cross-Appellee,
v
No.
117390
MICHAEL ROBERT CUSTER,
Defendant-Appellee/
Cross-Appellant.
____________________________________
YOUNG, J. (dissenting).
I agree with Justice Cavanagh that Officer Greenleaf’s
actions
in
examining
the
photographs
he
removed
from
defendant’s pocket did not meet Fourth Amendment requirements.
Accordingly, I respectfully dissent.
As Justice Cavanagh explains in his dissent, ante at 31,
“once the officer removed the photographs from the defendant’s
pocket, it became clear that the object removed was not in
fact cardboard.
At that moment, the justification supporting
the seizure, that the object was immediately identifiable as
contraband, no longer existed.” In my view, under the Supreme
Court’s decision in Arizona v Hicks, 480 US 321; 107 S Ct
1149; 94 L Ed 2d 347 (1987), any continued examination of the
photographs,
however
cursory,
required
additional
justification that simply is not present here.
Because
I
believe
that
the
trial
court
properly
suppressed the photographs as well as the evidence obtained
during the subsequent search of defendant’s residence, I would
affirm the decision of the Court of Appeals.
2
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant/
Cross-Appellee,
v
No. 117390
MICHAEL ROBERT CUSTER,
Defendant.
____________________________________
CAVANAGH, J. (dissenting).
I cannot join in the majority’s decision to chip away at
the protections afforded by the Fourth Amendment of our United
States
Constitution.
In
this
case,
the
probable
cause
supporting the defendant’s ultimate arrest stemmed from the
officer’s decision to remove and inspect photographs that the
defendant was carrying in his front pocket.
I cannot support
the majority’s conclusion that the photographs were validly
seized and inspected.
of
the
1
Fourth
I am unconvinced that the requirements
Amendment
were
satisfied.1
Therefore,
I
The question before us has not been directly addressed
by our state courts. The closest case to being on point is
People v Champion, 452 Mich 92; 549 NW2d 849 (1996). However,
Champion did not involve the type of postseizure search that
occurred in this case.
To the extent that our state
constitution is involved, it provides rights coextensive with
(continued...)
respectfully dissent.
I
In this case, the defendant was ultimately charged with
three
drug-related
offenses.
The
evidence
linking
the
defendant to the crimes was discovered only after a series of
searches and seizures.
This appeal involves examination of
several of the incidents occurring between the time the
defendant was initially detained and the time that he was
charged.
The majority adequately discusses the key facts of the
case.
In brief, the majority correctly points out that (1)
the police initially came into contact with the defendant
while investigating a trespass violation, (2) the patdown of
the defendant occurred only after a baggie of marijuana and
wad of money were found on his counterpart, (3) the officer
testified that he removed photographs from the defendant’s
pocket on suspicion that they were blotter acid, (4) the
officer first placed the photographs face down on the roof of
the car and later flipped them over and examined them, (5) the
photographs were later used to obtain a search warrant, and
1
(...continued)
the federal constitution and need not be addressed
independently from our resolution of the Fourth Amendment
issues presented. Thus, this case hinges on the applicability
of Fourth Amendment jurisprudence, and United States Supreme
Court precedent.
2
(6) the fruits of the search made pursuant to the warrant
formed the basis for arresting and charging the defendant.
Next,
the
majority
presented on appeal.
the
defendant’s
adequately
identifies
the
issues
We are faced with determining whether
constitutional
right
to
be
free
from
unreasonable searches and seizures was violated when: (1) the
defendant was stopped by the officers, (2) the defendant was
frisked, (3) the defendant’s photographs were removed from his
front pocket, or (4) the officer flipped the photographs over
and examined them.2
This case involves a series of searches
and seizures subject to Fourth Amendment scrutiny.
defendant
was
stopped
for
possible criminal activity.
the
purpose
of
First the
investigating
Next, the defendant was frisked
under the auspices of protecting the investigating police
officer. Third, an item was seized from the defendant’s front
pocket.
Fourth, the item seized was searched.
Fifth, the
defendant was detained and taken to the police station.
Sixth, the defendant’s home was searched.
was
seized
from
the
defendant’s
2
home.
Seventh, marijuana
Thereafter,
the
The defendant also raises the additional Fourth
Amendment questions. The majority concludes that we need not
address the defendant’s issues. Likewise, this opinion will
not address the defendant’s additional issues because I would
grant relief to the defendant even without reaching the
question.
3
defendant was charged with the offenses forming the basis of
the instant trial.
It is crucial at the outset to understand the basic
premises
guiding
search
and
seizure
law
because
Fourth
Amendment jurisprudence provides that a criminal defendant has
a claim for the suppression of evidence that has been gathered
in violation of his Fourth Amendment rights.
Wong Sun v
United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963).
First, it is important to understand that searches and
seizures may raise distinct concerns.
A “search” for Fourth
Amendment purposes hinges on a person’s privacy interest. The
touchstone test for examining a search is whether a person has
a
legitimate
searched.
expectation
of
privacy
in
the
place
to
be
Katz v United States, 389 US 347; 88 S Ct 507; 19
L Ed 2d 576 (1967).
A seizure, on the other hand, deprives
the individual of dominion over his person or property.
United States v Jacobsen, 466 US 109; 104 S Ct 1652; 80 L Ed
2d 85 (1984); Horton v California, 496 US 128; 110 S Ct 2301;
110 L Ed 2d 112 (1990).
A seizure occurs when some meaningful
governmental interference with an individual’s possessory
interest in property has occurred.
Jacobsen, supra.
In the
context of an investigatory stop, a seizure occurs when an
officer, by means of force or authority, restricts a person’s
4
liberty of movement.
Terry v Ohio, 392 US 1, 27; 88 S Ct
1868; 20 L Ed 2d 889 (1968).
The United States Supreme Court has made it clear that
searches without warrants are unreasonable per se, subject to
a
few
“specifically
exceptions.”
established
Katz at 357.
and
well-delineated
Similarly, the Court has stated
that seizures must be circumscribed “in area and duration by
the terms of the warrant or valid exception to the warrant
requirement.” Horton at 139. In the context of searches that
result in the seizure of an item suspected to be contraband,
the
United
States
Supreme
Court
has
recognized
that
a
government agent’s exercise of dominion and control over the
item may be a “reasonable” seizure for Fourth Amendment
purposes when the effect seized cannot be supported by a
reasonable expectation of privacy, and when the agent can show
that
he
had
probable
cause
to
believe
that
the
effect
contained contraband. Jacobsen, supra. Otherwise, the search
will be constitutionally unreasonable.
In this case, the people place reliance on two doctrines
that sometimes provide justification for searches and seizures
without warrants. The first of these doctrines, the “stop and
frisk” doctrine, pertains to the ability of law enforcement
officials to institute investigatory stops and conduct weapons
5
patdowns.
The second doctrine, the “plain feel” doctrine,
relates to an officer’s ability to seize items detected
through tactile perception during a patdown without a warrant
when the officer perceives the items to be contraband.
Each
of these doctrines will be discussed.
A. The Stop and Frisk Doctrine
1. Guiding Legal Principles
The “stop and frisk doctrine” has roots in the United
States Supreme Court decision in Terry v Ohio, which held that
a reasonable investigatory stop of criminal defendants is
permissible when an officer “observes unusual conduct which
leads him to reasonably conclude in light of his experience
that criminal activity may be afoot . . . .”
Id. at 30.
Further, the officer may conduct a “patdown” search for
weapons when the “officer is justified in believing that the
individual whose suspicious behavior he is investigating at
close range is armed and presently dangerous to the officer or
to others . . . .”
Id. at 24.
In the event of a Terry stop, courts should take into
account the whole picture, and determine whether the stop was
reasonable under the totality of the circumstances. United
States v Cortez, 449 US 411, 418; 101 S Ct 690; 66 L Ed 2d 621
(1981).
Under the totality of the circumstances, a stop will
6
be considered valid only when the detaining officer can
reasonably articulate a particularized and objective basis for
suspecting that the individual stopped had been engaged in or
was about to engage in criminal activity. Terry, supra at 27.
A hunch unsupported by particularized suspicion will not
justify the seizure of a person.
Id.
When the seizure of a defendant does not comport with
Terry, it will be deemed unreasonable and the evidence flowing
from the seizure may be suppressed as fruit of the poisonous
tree.
Wong Sun; Shabaz, supra.
Pursuant to Wong Sun, “the
fruits of the officers' illegal action are not to be admitted
as evidence unless an intervening independent act of free will
purges the primary taint of the unlawful invasion.”
People v
Shabaz 424 Mich 42, 66; 378 NW2d 451 (1985).
2.
Application to the facts
In the present case, the defendant was stopped and
frisked on the following grounds: he and Holder were spotted
in the area where a trespass violation had been reported, the
individuals were detained because Holder was too intoxicated
to drive away, Holder was found to be in possession of
marijuana, and there was a clear relationship between Holder
and the defendant.
The detaining officer testified that his
twenty-three years of experience taught him that persons in
7
possession of drugs also frequently possess weapons. As such,
the officer felt that the defendant might pose a safety threat
to himself or to his partner.
The majority opines that, under the totality of the
circumstances, the detaining officer was reasonably suspicious
of the defendant because the defendant was initially detained
for questioning in an area where a suspected trespass had been
reported.
Similarly,
the
majority
concludes
that
the
defendant was reasonably detained after the officers found
marijuana and money on the defendant’s companion, Holder.
a. The initial detention of the defendant
I agree with the majority that the police did not violate
the defendant’s Fourth Amendment rights by approaching the
automobile he shared with Holder.
The constitution permits
law enforcement officers to approach an individual in a public
place for the purpose of asking him if he is willing to answer
some questions.
Shabaz, supra at 56, relying on Florida v
Royer, 460 US 491; 103 S Ct 1319; 75 L Ed 2d 229 (1983)
(opinion
of
White,
J.).
Where
there
is
no
involuntary
detention of a defendant, there is no Fourth Amendment seizure
within the meaning of the Fourth Amendment.
Id.
In his
brief, the defendant acknowledges that the police did not
question or approach him until after they found marijuana on
8
Holder. Thus, I would not find a violation of the defendant’s
rights stemming from the officers’ decision to approach and
question Holder while the defendant was a passenger in his
car.
b. The continued detention of the defendant after marijuana
was found on Holder
The majority next presents the question whether the
defendant was further properly stopped after marijuana was
found on Holder.
After Holder was searched and detained, the
police asked the defendant to step out of the vehicle.
that point, he was clearly detained.
At
The officers testified
that the defendant was asked to get out of the car so that a
patdown search for drugs and weapons could be conducted.
Thus, once the officers asked the defendant to leave the car
so that he could be searched, their inquiry moved beyond the
realm of merely stopping a person to inquire whether the
person is willing to answer questions and into the realm of
searches and seizures subject to the constraints of Terry.
An officer may initiate an investigatory stop pursuant to
Terry when he can articulate a reasonable basis for suspecting
that the particular individual detained has committed, or is
about to commit, a crime.
Further, an officer may conduct a
“frisk,” a form of limited weapons search, when he has reason
9
to believe that the person suspected of a crime is presently
armed and dangerous.
However, the officer’s ability to
investigate the circumstances of a crime on the basis of
reasonable suspicion are limited.
Full blown searches and
seizures must be based on probable cause. Dickerson, supra at
378.
According to the majority, “after the marijuana was
found, the police properly detained defendant for the purpose
of conducting a limited search for weapons on the basis of
reasonable suspicion.” Slip op at 8. In the majority’s view,
there was suspicion because the defendant was the passenger in
a vehicle in which criminal activity was discovered, drugs
were found on Holder, the officer was told that Holder and the
defendant had been together all evening, and Holder yelled to
the defendant not to say anything.
Thus, under the totality
of the circumstances and in light of the fact that the officer
testified that experience taught him that people with drugs
often have weapons, the majority finds the requisite level of
reasonable suspicion for a patdown.
Ultimately, I agree with the majority’s conclusion that
the patdown in this case is sustainable under Terry.
Thus, I
join the majority’s holding that the stop and frisk were
constitutionally permissible. However, because I believe that
10
the majority jumps too readily from an officer’s ability to
make investigative inquiries to his ability to stop and frisk,
I feel compelled to offer a somewhat more extended analysis
than that offered by the majority.
The majority bolsters its
finding of reasonable suspicion primarily by pointing out that
the defendant was and had been in the company of Holder, that
Holder was in possession of marijuana, that Holder yelled to
the defendant upon being arrested, and that the detaining
officer testified that weapons often accompany drugs.
Yet,
the majority fails to clarify that the defendant could not be
stopped and frisked merely on the basis that he was associated
with Holder.
Rather, the circumstances had to indicate that
the defendant himself was articulably and reasonably suspected
of criminal wrongdoing, and suspected of being armed and
dangerous.
In Ybarra v Illinois, 444 US 85; 100 S Ct 338; 62 L Ed 2d
238 (1979), the United States Supreme Court specifically
rejected an argument that a person may be stopped and frisked
simply for being in an area where drugs are found.
There, the
police had a warrant to search a bar and bartender for heroin.
Ybarra was one of the patrons in the bar when the police
arrived to perform the search.
They conducted a protective
patdown of Ybarra and the other patrons in the bar.
11
In the
process, the police seized a cigarette pack from Ybarra and
found packets of heroin inside.
The Court held that the
evidence was subject to suppression on the grounds that the
police lacked reasonable suspicion to conduct a patdown search
of Ybarra simply because he was in an area where a drug search
was occurring pursuant to a warrant.3
In the instant case, the defendant was patted down on the
basis of the officer’s testimony that his experience taught
him that people who have drugs often also have weapons.
When
the defendant was patted down, the police knew that Holder was
in possession of an illegal substance, not that the defendant
was in possession of an illegal substance.4
The majority’s
analysis comes dangerously close to doing exactly what Ybarra
prohibits–allowing a frisk of a person simply because that
person is in propinquity with another reasonably suspected of
3
This Court has also recognized that a defendant will
not be considered individually suspicious simply because he is
in a high crime area or in an area where drugs are known to
be. Shabaz, supra.
4
In fact, the officer testified that part of the purpose
of the frisk was to search for weapons on the defendant. The
majority finds the officer’s motivation to be irrelevant;
however, the law makes it clear that a search exceeding Terry
must be based on probable cause. Thus, to the degree that the
officer’s knowledge relates to the extent of the search and to
his belief that the defendant possessed drugs, it is plainly
relevant.
12
engaging in criminal activity.
While I agree that the police officers were justified in
conducting a patdown under the specific facts of this case, I
believe
that
we
must
take
great
threshold established in Ybarra.
care
not
to
cross
the
It cannot be summarily
concluded that the defendant himself could reasonably be
suspected of engaging in criminal wrongdoing simply because of
his
association
with
Holder.
In
order
to
meet
the
requirements of the Fourth Amendment, it must be shown not
only
that
the
officers
had
reason
to
suspect
criminal
wrongdoing, it must also be established that the officers had
a
reasonably
articulable
basis
for
defendant perpetuated the wrongdoing.
suspecting
that
Terry, supra.
the
To the
extent that the majority opinion could be read as overlooking
the
particularity
requirement
inherent
in
a
reasonable
suspicion inquiry, I disagree with it.5
There is no bright-line test for determining whether
articulable and particularized reasonable suspicion exists
under the circumstances of an individual case.
However, this
Court has discussed the concept in some detail.
In Shabaz,
the Court held that no reasonable suspicion existed where a
5
I believe a similar mistake was made in People v
Oliver, 464 Mich 184; 627 NW2d 297 (2001).
13
defendant was stopped because he was observed stuffing a paper
bag under his clothing while leaving an apartment complex in
a high crime area, and because he “took off running” when
officers observing him slowed their unmarked police car to a
stop.
Id. at 60.
In reaching the conclusion that reasonable
suspicion was lacking under the circumstances, Justice Ryan,
now judge of the Sixth Circuit Court of Appeals, stated for
the Court,
The police were not investigating a recently
committed crime in the area which may have been
linked to the defendant, nor was he known to the
officers as a suspect in a crime.
There was no
visible contraband on the defendant’s person; the
officers could only guess at the contents of the
paper bag.
The defendant’s flight from plain
clothes pursuers in an unmarked car was at most
ambiguous and at least understandable. [Id. at 64
65.]
While this quotation from Shabaz certainly makes it clear that
Terry searches must be carefully scrutinized, I believe that
in applying Terry, Shabaz also implicitly raised a distinction
between situations in which an officer comes upon a person
unknown to him and situations in which an officer is detaining
specific individuals in association with the investigation of
a particular crime.
The officers in this case were in the area investigating
a trespass.
Further, once marijuana was found on Holder, the
14
officers were validly investigating another crime.
Once
Holder yelled to the defendant not to tell the officers a
“f—ing thing,” the officers had a basis for suspecting that
the
defendant
had
information
presently being investigated.
pertaining
to
the
crime
Though it is true that the
defendant had done nothing to indicate that he himself was in
possession of drugs, the officers had an objective reason for
suspecting that the defendant might have been involved in
criminal
wrongdoing.
Moreover,
the
detaining
officer’s
testimony that he feared for his safety when taken together
with the fact that the tension in the situation had escalated
when marijuana was found on Holder, objectively justified the
officer’s belief that the defendant posed a threat of being
presently armed and dangerous. Thus, I believe that this case
can more closely be analogized to Terry than to Ybarra.
The
circumstances of this case reveal a situation where the
particular individuals were being investigated in association
with the suspected commission of particular violations, rather
than merely a situation where the defendant happened to be in
an area where other crimes were suspected of being committed.
Therefore, I would conclude that this case meets the threshold
established by Terry and justified a limited weapons patdown.
II
15
Despite my agreement with the majority that reasonable
suspicion for a stop and frisk existed under the totality of
the circumstances, I would affirm on the grounds that the
seizure
of
photographs
from
Custer’s
constitutionally impermissible.
front
pocket
was
I would hold that the scope
of Terry was exceeded when the officer seized the photographs,
and would further hold that the officer lacked probable cause.
The majority concludes that the seizure without a warrant
of the photographs from defendant during the patdown search
was valid under the Fourth Amendment of the United States
Constitution and its counterpart in the Michigan Constitution.
According to the majority, the seizure was justified by the
“plain feel exception” to the warrant requirement, citing
Minnesota v Dickerson, 508 US 366, 373; 113 S Ct 2130; 124 L
Ed 2d 334 (1993); People v Champion, 452 Mich 92; 549 NW2d 849
(1996).
I disagree.
In a nutshell, the plain feel doctrine provides that
police may seize nonthreatening contraband detected through
the sense of touch during a patdown search, as long as the
search remains within the bounds of Terry and as long as the
search
would
considerations
be
“justified
that
Dickerson at 375-376.
inhere
in
by
the
same
the
plain-view
practical
context.”
Thus, courts considering whether an
16
item may be seized under the plain feel doctrine must consider
both the Terry doctrine and the plain view doctrine.
In Dickerson, the officer patted down the defendant, and
in the process examined a lump in the defendant’s pocket that
he believed to be cocaine.
The Court held that the seizure
was invalid because the incriminating character of the lump
was not immediately apparent, and because the officer needed
to conduct further examination in order to determine whether
the lump was contraband.
Though Dickerson itself invalidated
the seizure of contraband made during a patdown search, the
Court nonetheless stated that not all plain feel seizures are
invalid per se.
Still, the Court made clear that seizures
stemming from a patdown must be carefully scrutinized:
Under the State Supreme Court’s interpretation
of the record before it, it is clear that the court
was correct in holding that the police officer in
this case overstepped the bounds of the “strictly
circumscribed” search for weapons allowed under
Terry.
Where, as here, “an officer who is
executing a valid search for one item seizes a
different item,” this Court rightly “has been
sensitive to the danger . . . that officers will
enlarge a specific authorization furnished by a
warrant or an exigency, into the equivalent of a
warrant to rummage and seize at will. Here, the
officer’s continued exploration of the respondent’s
pocket after having concluded that it contained no
weapon was unrelated to . . . the protection of the
police officer and others nearby.” It, therefore,
amounted to the sort of evidentiary search that
Terry expressly refused to authorize, and that we
have condemned in subsequent cases. [Id. at 378
17
(citations omitted).]
Thus,
although
Dickerson
clearly
refused
to
impose
a
categorical ban on the plain feel seizure of objects “whose
identity
is
already
known”
because
of
their
immediately
apparent characteristics, the Court in no way implied that any
and every object that may potentially have characteristics
similar to certain types of contraband would be seizable. Id.
at 377.
Dickerson also stated that the “plain feel” concept has
roots in the “plain view” doctrine, and the competing concerns
expressed in plain view cases can be analogized to the plain
feel context.
Thus, it is important to understand the basic
principles underlying the plain view doctrine when determining
whether a particular plain feel seizure is valid.
Under the
plain view doctrine: (1) the seizure without a warrant of
evidence in plain view is permissible as long as the police
did not violate the Fourth Amendment in arriving in a place
from which the evidence could be plainly viewed, (2) an item
of immediately apparent incriminating character must be in
plain view in order to be seizable, and (3) the police must
have a lawful right of access to the item being seized. Horton
v California, supra; Coolidge v New Hampshire, 403 US 443; 91
S Ct 2022; 29 L Ed 2d 564 (1971); Arizona v Hicks, 480 US 321;
18
107 S Ct 1149; 94 L Ed 2d 347 (1987).
The ability of a police
officer to seize an item without a warrant pursuant to the
plain view doctrine is thus circumscribed by the exigencies
justifying the initiation of the search.
Horton at 139-140.
Further, “[i]f the scope of the search exceeds that permitted
by the terms of a validly issued warrant or the character of
the relevant exception from the warrant requirement, the
subsequent seizure is unconstitutional without more.”
Horton
at 140.
It is in light of these principles that the Dickerson
Court enunciated its holding. The Court explicitly recognized
that while Terry may authorize an officer to place his hands
on a criminal defendant’s outer clothing, the Fourth Amendment
is violated when the officer must conduct a further search in
order to determine whether an object is contraband.
In such
instances, a seizure will be invalidated for lack of probable
cause.
Thus, in plain feel seizure cases, courts must determine
whether the scope of the patdown search remained within the
bounds of Terry.
If not, then the seizure made pursuant to
the search would exceed the exigency justifying the search in
the first instance.
Additionally, courts must determine
whether the object felt by an officer is immediately apparent
19
as being contraband.
probable cause.
The determination must be supported by
Where the mass and contours of the object do
not make it immediately identifiable as contraband, seizure
without a warrant is not justified.
In this case, I would hold that the photographs were
invalidly seized from the defendant both because the officer
exceeded the scope of the Terry search, and because the
officer lacked probable cause to remove them.
First, it must
be remembered that the patdown search of the defendant was
purportedly initiated to protect the officer from a person
suspected of being armed and dangerous.
During the course of
the patdown, the officer testified that he felt what he
believed to be a piece of cardboard used as blotter paper for
an illegal narcotic known as acid.
A. The Scope of Terry
Clearly, the cardboard seized by the officer was not
seized in order to advance the interest of protecting the
officer. The officer did not remove the photographs on belief
that they were a dangerous instrumentality, but on suspicion
that they were cardboard.
The officer further suspected that
the item he felt was used to blot acid.
In my view, the majority’s opinion in this case is the
first evil escaping the Pandora’s box opened in People v
20
Champion.6
In Champion, the majority extended the United
States Supreme Court decision in Dickerson to encompass plain
feel
seizures
of
items
that
might
contain
contraband.7
Justice Brickley dissented, explaining why seizures of items
not appearing to be contraband themselves is illegal.
Though
Justice Brickley’s opinion did not win the day, I continue to
believe that it was correctly decided.
I would adhere to his
view,
the
that
when
the
officer
patted
objects
in
the
defendant’s pocket and knew that they were not a weapon, the
removal of those objects was unrelated to the protection of
the officer’s safety.
Thus, the exigencies supporting the
patdown were unrelated to the subsequent seizure.
Regardless
subscribes,
it
of
is
the
clear
view
that
of
the
Champion
to
exigencies
which
one
purportedly
6
See Champion at 143 (Brickley, C.J., dissenting)(“The
majority justifies its expansive reading of Dickerson by
pointing out that it limited its holding to the facts
presently before the Court. . . . Yet, it would be naive to
conclude that this state’s lower courts will not read the
majority opinion in a way that will allow evidence . . .
against those whose Fourth Amendment rights have been
violated, indeed, opening Pandora’s box.”).
7
Importantly, though Champion supported the plain feel
seizure of an item that might contain contraband, it did not
allow a subsequent search merely because the item had been
seized. Rather, it required the additional justification that
the search occur incident to arrest. This cuts against the
majority’s rationale for searching the photographs seized from
the defendant pursuant to the plain feel doctrine.
21
justifying the patdown search of the defendant in this case
did not justify the seizure.8
Even the majority recognizes
the patdown in this case occurred as part of a protective
sweep, but that the seizure was justified pursuant to the
plain feel doctrine.
Thus, we must turn to Dickerson’s
requirement that a plain feel seizure be supported by probable
cause.
B. The Absence of Probable Cause
Dickerson made it clear that an object is seizable only
where
its
incriminating
identity
is
immediately
apparent
8
There
is
a
fundamental
difference
between
the
justification supporting a patdown search for weapons and the
justification for seizing something that is clearly not a
weapon. In order to determine whether a search or seizure
remains within the confines of an exception to the warrant
requirement, one must necessarily understand the justification
circumscribing the otherwise constitutionally impermissible
search or seizure without a warrant. Whereas the potential
presence of a weapon may justify an officer’s access to the
outer surfaces of a defendant’s clothing during a patdown
search, the fact that an officer may lawfully be in a position
to search a defendant does not in and of itself justify the
officer in seizing anything that he believes is contraband.
Rather, a seizure of contraband made during a patdown search
requires its own constitutional justification.
In the instant case, if the officer had justification for
the seizure, it was because of the plain feel doctrine, not
because of the Terry doctrine. Though the plain feel doctrine
permits a seizure that would not have had justification but
for the officer’s decision to patdown the defendant, the
exigencies supporting the search (fear for the safety of the
officers or others) clearly would not support a seizure of
blotter acid cardboard because blotter acid cardboard does not
pose a threat to the officer’s safety.
22
because of the mass and contour of the object.
As an initial
matter, the majority too readily assumes that a limited
patdown could clearly reveal the identity of objects in the
defendant’s front pocket so that manipulation would not be
required to support probable cause for a seizure.
Obviously,
the contours and mass of the objects in the defendant’s pocket
were not unique.
This is evidenced by the fact that the
officer believed the defendant was carrying cardboard, though
he was actually carrying photographs.
The majority glosses
over the officer’s factual mistake and deems it irrelevant.
Though perhaps not dispositive in every case, I believe that
a factual mistake about the identity of an object must be
“immediately apparent,” because contraband tends to reduce the
likelihood that a particular seizure is supported by probable
cause.
And because the existence of probable cause is made
less likely by the mistake, I believe such factual errors are
certainly relevant to our determination whether probable cause
existed.9
9
Again, I turn to Justice Brickley’s Champion opinion
to illustrate why the seizure of noncontraband items is
constitutionally problematic. He wrote:
I would hold that Terry specifically forbids
the type of seizure conducted in this case and
thereby eliminate the incentive to expand patdowns
(continued...)
23
Probable cause will be found to exist where the facts and
circumstances, within the knowledge of the authorities and of
which the authorities had reasonably trustworthy information
“were sufficient in themselves to warrant a man of reasonable
caution in the belief that [a crime has been committed].”
Carroll v United States, 267 US 132, 162; 45 S Ct 280; 69 L Ed
543 (1925).
A very important distinction must be drawn
between the basis for an officer’s ability to stop and frisk
and his ability to seize an item pursuant to the plain feel
doctrine.
The stop and frisk must be predicated upon only
reasonable suspicion.
The plain feel doctrine allows an
officer to seize immediately apparent contraband that he feels
during the patdown on the ground that the officer has probable
cause for the seizure.
In other words, if an officer feels
something that he only reasonably suspects to be contraband,
he cannot seize it.
9
(...continued)
into general searches for contraband.
To the
extent that Dickerson departs from Terry's strict
prohibitions, it allows admission of nonweapons
evidence found during a patdown if, but only if,
the officers conducting the patdown have probable
cause to believe that the item they feel is
contraband. The item felt in this case, the pill
bottle, while containing contraband, was not, in
and of itself, contraband.
Accordingly, it was
impossible for Officer Todd to have probable cause
to believe otherwise.
His seizure of it,
therefore, was illegal. [Id. at 143.]
24
In the present case, I am not convinced that the officer
acted upon probable cause, though he may have subjectively
suspected that the defendant was carrying blotter acid on
cardboard.
While the stop and frisk could potentially be
justified on reasonable suspicion grounds, that justification
would lie largely in the fact that the interest in protecting
officers and innocent bystanders from the harm an armed
suspect may cause outweighs a suspicious individual’s interest
in being free from a limited search.
A seizure made pursuant
to a frisk requires a higher level of justification than a
frisk itself, however, because the officers have gained access
to
the
defendant’s
Amendment exception.
person
pursuant
to
a
limited
Fourth
When the seizure occurs, the balance to
be considered is whether the officer’s ability to seize an
item to which he gained access on the basis of reasonable
suspicion that an individual was armed and dangerous outweighs
an
individual’s
interest
in
possessing
items
and
the
individual’s legitimate expectation of privacy.
Were there no concern for the officer’s safety, an
officer could not randomly frisk a defendant.
search must be limited to a weapons search.
Rather, the
Here, we have a
defendant who was essentially deemed guilty by association.
The officers observed that Holder was intoxicated, found money
25
on Holder, and found drugs on Holder.
When they patted down
the defendant, they felt no weapons and no contraband.
Yet,
the majority stretches to the conclusion that the officer had
probable cause to believe that the defendant was in possession
of blotter acid simply because his friend had been found in
possession of marijuana and because he had an object in his
pocket that felt like cardboard, which could have been used to
blot acid.10
Further, Dickerson would support a conclusion that the
seizure here was unjustified because the officer conducted a
search
under
the
auspices
of
the
plain
feel
doctrine.
Dickerson plainly stated that where a further search is
required in order to determine that an object is contraband,
it is not seizable under the plain feel doctrine.11 Here, even
if it had been cardboard that the officer felt, he would have
10
Under the majority’s view, almost any object felt
during a patdown could be seized. Could a pen be mistaken as
a syringe? A marble as cocaine? A cigarette as marijuana?
A letter as blotter paper?
11
I, therefore, disagree with the majority that Champion
in no way extended Dickerson. Obviously, an ordinary pill
bottle is not illegal to possess. Thus, before the officer in
Champion could determine a pill bottle could be classified as
contraband, he had to determine somehow that it was in fact
used for an illegal purpose.
Thus, the very type of
additional search prohibited by Dickerson occurred in
Champion.
26
had to manipulate the object in order to determine that it was
in fact contraband.
Cardboard itself is not contraband, and
may lawfully be carried.
Only a further search would reveal
whether the cardboard somehow contained contraband.
In any event, the factors cited in the majority opinion
do not support the conclusion that the detaining officer had
probable cause to believe that the defendant was carrying
drug-laced cardboard in his front pocket.
According to the
majority,
In this case, while conducting the patdown
search of defendant, the officer felt a two-by
three-inch object in defendant’s pocket that he
believed was a card of blotter acid. His belief
was based on his knowledge that blotter acid was
often contained on sheets of cardboard; his
awareness that cards of blotter acid were capable
of fitting into a pants pocket like that he felt on
defendant; the antecedent discovery of marijuana
and a large amount of money on Holder, the driver
of the vehicle in which defendant was a passenger;
Holder’s shout to defendant not to tell the police
anything; the fact that defendant was with Holder
during the entire evening; and the officer’s
training and twenty-three years of experience as a
police officer.
Under these circumstances, the
officer had probable cause to believe that the
object
he
felt
in
defendant’s
pocket
was
contraband. [Slip op at 12-13.]
Interestingly, none of these factors indicates that the
officer had reason to suspect that the defendant would be
carrying contraband.
The officer’s knowledge that blotter
acid is often carried on cardboard and that such pieces of
27
cardboard would fit into a pocket do not support a conclusion
that this defendant, a person previously unknown to the
officers,
would
be
carrying
blotter
acid
in
his
pants.
Additionally, the officer pointed to nothing specific that
would distinguish a piece of cardboard used to blot acid from
a
photograph
or
any
other
piece
of
paper.
He
had
no
articulable basis for concluding that whatever piece of paper
the
defendant
was
carrying
was
used
for
acid
blotter.12
Moreover, the fact that the police knew Holder was carrying
marijuana does not support an implication that the defendant
would be in possession of acid.
In fact, at the point at
which he was frisked, the defendant himself had nothing to
alert the police that he was engaged in criminal activity.
Under
the
facts
and
circumstances,
a
man
of
reasonable
prudence and caution would have no basis for concluding that
the
defendant
narcotics.
had
committed
the
offense
of
possessing
Unless it is now an offense to choose one’s
associates poorly, I see no reasonable ground for believing
12
In fact, the officer’s testimony that blotter acid
paper is generally paper that can be divided easily into small
sections and have acid dropped on it so that it may be sucked
off by a recipient tends to imply that a photograph that is
thicker and slipperier than paper would not have the
characteristics of normal acid blotter.
28
that the defendant could be charged with any illegality.13
Accordingly, I do not believe a finding of probable cause is
supportable.
IV
Finally, because the majority concludes that the seizure
of the photographs in the defendant’s pocket was valid, it
reaches
the
issue
whether
the
photographs
were
validly
examined. I will also address this argument because I believe
the majority’s argument is supported neither by logic nor by
law.
According to the majority, “the exterior of an item that
is validly seized during a patdown search may be examined
without a search warrant, even if the officer subsequently
13
Interestingly, the majority’s probable cause rationale
is barely distinguishable from its reasonable suspicion
rationale.
The only factor that separates the reasonable
suspicion supporting a patdown search and the probable cause
required for a seizure are that the officer knew cards of
blotter acid could fit in a pocket. As emphasized herein, the
officer had no articulable reason to believe that the
defendant possessed blotter acid paper or other drugs.
Contrary to the majority’s implication, I do not suggest
that the same factors that would support a finding of
reasonable suspicion cannot factor into the probable cause
analysis. Rather, I believe it is important to recognize that
the minimal factors justifying a patdown weapons search do not
rise to the level of probable cause.
Also the officer’s
additional indication that a piece of cardboard could fit in
someone’s front pocket, and his knowledge that some people
blot acid on cardboard hardly move the degree of suspicion
possessed in this case into the category of probable cause.
29
learns
that
the
item
is
not
the
contraband
the
initially thought that it was before the seizure.”
at 20.
officer
Slip op
However, the majority’s argument is premised on the
assumption that the police validly possessed the photographs
removed from the defendant’s pockets when the search occurred.
If a Fourth Amendment infringement is unsupported by a
warrant or other exception to the warrant requirement, the
seizure is invalid.
without
a
warrant
justifying it.
In other words, a search or seizure
is
circumscribed
by
See, e.g., Horton, supra.
the
exigencies
Here, the officer
removed the photographs from the defendant’s possession and
control on belief that they were blotter acid cardboard.
The
purported justification was plain feel. Yet, once the officer
removed the photographs from the defendant’s pocket, it became
clear that the object removed was not in fact cardboard.
At
that moment, the justification supporting the seizure, that
the object was immediately identifiable as contraband, no
longer existed.14
Thus, the scope of the plain feel exception
was exceeded and the police no longer had justification for
14
In criticizing my approach, the majority conveniently
omits this sentence. Such omission illustrates the majority’s
lack of appreciation of one of the most important aspects of
this case–that a search or seizure without a warrant is
circumscribed by the warrant exception justifying it.
30
infringing
the
defendant’s
right
to
possess
agree
with
private
photographs.
Additionally,
I
cannot
the
majority’s
conclusion that the search of the photographs taken from the
defendant was supportable.
The majority opines that the
defendant’s expectation of privacy in items he was carrying in
his front pocket was “significantly diminished” because an
officer
removed
them
during
mistaken
belief
that
they
a
were
patdown
blotter
search
acid
under
the
cardboard.15
Certainly, a defendant has a legitimate expectation of privacy
in his front pocket.
I would contend that he continued to
have a legitimate expectation of privacy after the photographs
were removed.
Under the majority view, an individual’s
expectation
privacy
of
in
a
personal
possession
would
evaporate at the moment an officer removes the item from the
individual’s control, even when the officer’s belief is wrong.
I cannot agree.16
15
Ironically, the majority cites Arizona v Hicks, in
support of its position. In Hicks, the United States Supreme
Court held that the plain view doctrine would not support a
seizure where the officers exceeded the scope of the exigency
allowing them to be in a place to see what was suspected to be
contraband, and also where the police had to move an item in
order to determine whether it was in fact contraband.
16
The majority takes pains to try to explain why rights
(continued...)
31
Though the officer’s correctness in his belief that an
item is probably contraband might not ultimately invalidate a
seizure,17 a mistake on the officer’s part would most certainly
undermine the validity of a subsequent search.
Subsequent
searches of items seized by police under a Fourth Amendment
exception
allowing
a
seizure
without
a
warrant,
must
16
(...continued)
are only “ diminished” under its approach. While the majority
admittedly uses the phrase “significantly diminished”
throughout its opinion, I am not persuaded that the label
accurately fits the approach.
When would a legitimate
expectation of privacy preclude a further search under the
majority’s rationale?
The majority seems to argue that the result might be
different were the officer required to open a container and
look inside. Yet, how can this be true considering that the
majority places primary reliance on Champion, a case in which
the officer did just that? Further, the law does not support
a conclusion that an officer somehow has justification to
manipulate an object and search parts of its exterior that are
not in the officer’s view. Our Supreme Court has said that
plain view seizures are not justified where the officer moves
an object even minimally in order to determine whether the
object is illegally possessed. Hicks, supra. Similarly, an
object that must be manipulated in order to determine whether
it is contraband is not subject to seizure under the plain
feel doctrine. Dickerson, supra. The same rationale applies
in the context of the present case. I see no meaningful or
outcome-determinative distinction between a situation where an
officer has to manipulate an object’s exterior in order to
determine whether the object contains contraband and a
situation in which the officer must open the object and look
inside to determine whether it contains contraband. In either
situation, the officer is conducting a search of an object in
order to convert his suspicion that an object contains
contraband into confirmation that it does.
17
It would, however, be relevant to a determination
whether probable cause existed.
32
necessarily
be
subjected
to
a
determination
whether
the
individual defendant retains a privacy interest though his
possessory interest has been infringed.
Surely, society is
less likely to recognize an expectation of privacy in illegal
materials as being legitimate than in legal materials.
The
legitimacy concerns associated with contraband simply do not
attach to noncontraband items. Thus, if an officer mistakenly
seizes a noncontraband item and then searches that item,
despite the fact that the item seized is not the contraband he
suspected it to be, the officer is necessarily infringing on
a
privacy
interest.
Dickerson
itself
recognized
that
contraband may be seized during a plain feel or plain view
search because the police should not be forced to ignore an
apparent illegality.
Where the item “felt” is not illegal,
the same concerns are not present and the exigency is no
longer present.
Moreover, the majority effectively creates an exception
to the warrant requirement that permits a search incident to
seizure.
No such exception exists.
Even if I were to agree
with the majority that there was a valid basis for seizing the
defendant’s photographs, I would not support a rule that
eliminates an individual’s expectation of privacy in an item
lawfully possessed, but nonetheless seized.
33
The majority protests that it cannot have created a
search incident to seizure exception because it found no
search.
However, the basis for its conclusion that no search
occurred is that a defendant has a “significantly diminished”
legitimate expectation of privacy in something seized.
The
majority approach adds weight to my point that the majority’s
“significantly diminished expectation of privacy” conclusion
is distinguishable from a “no legitimate expectation
of
privacy” conclusion in words only. The majority itself admits
that “in order for there to be a ‘search,’ one must have a
reasonable
expectation
“searched.’”
of
privacy
Slip op at 27.
in
the
object
being
To conclude that no search
occurred, then, one must conclude that an individual has no
reasonable expectation of privacy in the place to be searched.
If an individual has a diminished expectation of privacy, as
opposed to no expectation of privacy, then necessarily he must
have some expectation of privacy in the place to be searched.
If the majority is unwilling to conclude that the defendant
had no expectation of privacy, then it cannot also satisfy the
test it enunciates as a basis for concluding that no search
occurred.
Further, the reason that no “search” occurred in the
majority’s
view,
is
that
the
34
defendant’s
expectation
of
privacy had been significantly diminished by virtue of the
prior seizure.
Under this view, the police’s subsequent
search was justified by its own prior conduct.
for
the
seizure,
there
could
have
been
no
Were it not
subsequent
examination because the defendant would have had a reasonable
expectation of privacy in his pants pockets.
Thus, the
majority effectively allows the police to search something
seized, and then allows the police to conduct an examination
of an object they have seized, by concluding that such an
examination would not be a search.
Such logic is contrary to
search jurisprudence, which focuses on whether a legitimate
expectation of privacy has been relinquished.
Also, I find it significant that the majority relies on
Champion, supra, to support its conclusion that the officer
could seize an item from the defendant, but then ignores
Champion’s recognition that
[t]he search of a container preceding a formal
arrest can qualify as a search incident to arrest
if probable cause for the arrest existed before the
container was searched. . . . However, a search of
a container cannot be justified as being incident
to
an
arrest
if
probable
cause
for
the
contemporaneous arrest was provided by the fruits
of the search. [Id. at 116.]
Perhaps the majority would conclude that because no container
was opened in this case, the search of the photographs in an
35
attempt to develop probable cause to arrest was permissible.
However, as explained above, such a distinction cannot validly
be drawn.
Here, the defendant was not arrested until after
the photographs were removed from his pocket and examined. The
probable cause for the defendant’s arrest
grew largely from
the search of the photographs.18
Despite the majority’s conclusion to the contrary, not
every item seized by police officers is automatically subject
to search without a warrant.
In fact, the United States
18
There was some discussion at trial about when the
defendant was actually placed under arrest.
The trial
transcript indicates that the defendant was not formally
arrested at the time he was transported to the police station
for questioning after the police examined the photos seized
from his front pocket; however, the detaining officer also
testified that the defendant was not free to leave after the
photographs were seized. What is clear, though, is that this
“arrest” of the defendant is not the same arrest upon which
the charges of delivery and manufacture, maintaining a drug
house, and conspiring to deliver or manufacture were
predicated.
Those charges were brought on the basis of
evidence seized during a search of the defendant’s home that
occurred after officers decided to investigate the defendant
because of what they had seen when examining the photographs.
Following the chain of events backward reveals the number
of steps that were taken in order to develop probable cause
for the defendant’s ultimate arrest for the drug offenses that
form the basis of the instant appeal: the arrest grew from the
seizure of drugs, which grew from the search of the
defendant’s house, which grew from the search of the
photographs, which grew from the seizure of the photographs,
which grew from the patdown search of the defendant, which
grew from reasonable suspicion that he was armed, which was
inferred from the conduct of Holder.
36
Supreme Court has explicitly held otherwise. In United States
v Jacobsen, for example, the United States Supreme Court
wrote,
Letters and other sealed packages are in the
general class of effects in which the public at
large has a legitimate expectation of privacy;
warrantless
searches
of
such
packages
are
presumptively unreasonable. Even when government
agents may lawfully seize such a package to prevent
loss or destruction of suspected contraband, the
Fourth Amendment requires that they obtain a
warrant before examining the contents of such a
package. [Id. at 114, citing United States v Place,
462 US 696, 700-701; 103 S Ct 2637; 77 L Ed 2d 110
(1983); United States v Ross, 456 US 798, 809-812;
102 S Ct 2157; 72 L Ed 2d 572 (1982); Robbins v
California, 453 US 420, 426; 101 S Ct 2841; 69 L Ed
2d 744 (1981) (plurality opinion); Arkansas v
Sanders, 442 US 753, 762; 99 S Ct 2586; 61 L Ed 2d
235 (1979); United States v Chadwick, 433 US 1,
13, n 8; 97 S Ct 2476; 53 L Ed 2d 538 (1977);
United States v Van Leeuwen, 397 US 249; 90 S Ct
1029; 25 L Ed 2d 282 (1970).]
Using Jacobsen as an analogy, the majority’s approach would
yield the result that a person’s private package could be
opened and searched because the individual expectation of
privacy in the item was lost at the time it was seized.
The
United States Supreme Court reached a contrary conclusion, and
so do I.
CONCLUSION
In this case, the officer impermissibly infringed upon
both the defendant’s possessory interest and his privacy
37
interest.
The photographs were impermissibly seized from the
defendant in the first instance, impermissibly retained, and
impermissibly
searched.
Therefore,
I
would
affirm
the
decisions below and hold that the fruit growing from the
seizure of the photographs must be suppressed.
KELLY , J., concurred with CAVANAGH , J.
38
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