Opposition — Michigan v. Long

SUPREME COURT

OF THE UNITED STATES

October Term, 1982

Tue Peorce or THe State or Micuican,

Petitioner

-VSs-

Davip Kerk Lone,

Respondent

ON PETITION FOR

A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF MICHIGAN

BRIEF FOR RESPONDENT IN OPPOSITION

James H. Geary

Lrrrie a Geary

Business Address:

107 West Michigan-Suite 301

Kalamazoo, Michigan 49007

Telephone: 616-344-1575

Counsel of Record for Respondent

Joseph J. Jcerkins

Viacnos, Jerxins a Huriey

Business Address:

729 Academy Street

Kalamazoo, Michigan 49007

Telephone: 616-38 1-6646

AMERICAN PRINTING COMPANY

1200 WEST FORT STREET, DETROIT, MICHIGAN 48226 — (313) 963-9316

Il. Whether the Michigan Supreme Court correctly de-

cided that evidence discovered in a search undertaken be-

cause of evidence obtained by unlawful police action should

have been suppressed.

ey ie

m=

Page

QUESTIONS PRESENTED ....................... i

oo BF Ne Bes | ls a nS oo ir ii

INDEX OF AUTHORITIES ........cccccccccccns iii, iv

POE PEPE au ub cap o ccewbac cwcercesowdued I

PEE is SST AWE ss bKecknscekincusodad oh I

STATEMENT OF FACTS .........cccscccesesecess 2

REASONS FOR DENYING THE WRIT ........... 4

I. THE MICHIGAN SUPREME COURT DECI-

SION IS SUPPORTED BY AN ADEQUATE

PEE ts GOED obo as > ever atee tases ce chtbee 3

Il. THE MICHIGAN SUPREME COURT DECI-

SION APPLIED WELL-ESTABLISHED

LEGAL PRINCIPLES TO PARTICULAR

ED. Stay 8068 saad odd epbieede dh <beacen ee 6

lili. THERE [S NO DISPUTED APPLICATION OF

FEDERAL PRECEDENT CONCERNING THE

SEARCH OF THE TRUNK ................-. 10

A. The Michigan Supreme Court Did Not Reach

The Question Of Whether The Trunk Search

Was A Proper Inventory Search Under South

Dakota v Opperman ....... 2.6.62 0 0e cece 10

B. The Propriety Of The Trunk Search Involves

Controlling Issues Of State Law ............ 11

C. The Deputies’ Search Of Long’s Car Trunk

Was Not A Valid Inventory Search.. ...... 12

ore: «+sumteecesscs agcete pas ¢eeaeeeere = 13

iii

INDEX OF AUTHORITIES

Cases: Page

Bartkus ¥ Illinois, 395 US 121 (1959)............... 5

Canal Zone v Bender, 573 F2d 1329 (Sth Cir. 1978) 8, 9

Coolidge v New Hampshire, 403 US 443 (1971)..... 7

Dunaway v New York, 442 US 200 (1979) .......... 6

People v Beavers, 393 Mich 554; 227 NW2d 511, cert

Gon 423 US CTR: CFI oa o's n cnt nsetbis hacceines 5

People v Cavitt, 86 MichApp 59; 272 NW2d 196 (1978) 11

People v Chernowas, 111 MichApp 1; 314 NW2d 505

OS RCE. RS eee Pere Pee by et. oOo eee a

People v Cooper, 398 Mich 450; 247 NW2d 866 (1976) 5

People v Dixon, 392 Mich 691; 222 NW2d 749 (1974) Ii

People v Garcia, 81 Mich App 260; 265 NW2d 115

2 RE rE ne et ee By il

Peopie v Hilber, 403 Mich 312; 269 NW2d 159 (1978) 11

People v Iverson, 34 MichApp 519; 191 NW2d 745

CREE ccs Rk} cee aa res ea RES Rw e 0 0 2 a MEwS 6 és 7

People v Lolley, 113 Mich App 567; 317 NW2d 342; lv

den 413 Mich 919 (1982) .............00.0 00 eee 8, Il

People v Long, 94 MichApp 338; 288 NW2d 629 (1979) 4

People v Long, 413 Mich 461; 320 NW2d 866 (1982) 2, 3

People v Marshall, 23 MichApp 376; 181 NW2d 578

ESE S-, e Or e paRe umes ys i

People v Moore, 391 Mich 426; 216 NW2d 770 (1974) 5

People v Nabers, 103 MichApp 354; 303 NW2d 205,

rev'd on other grounds 411 Mich 1046; 309 NW2d

BSF (TFB iin ons cOFkc twas oc cnkane papieve ears es 4

People v Rosaie., 406 Mich 624; 281 NW2d 126 (1979),

cert den 444 US 1025 (1980)............0020005:

People v Secrest, 413 Mich 521; 321 NW2d 368 (1982) 4

iv

INDEX TO AUTHORITIES—(Cont’d)

Cases: Page

People v 7th District Judge, 55 MichApp 471; 222

SO CCE, BNO GUI oan c cb bn bauble eas cacczcacds il

People v Turner, 390 Mich 7; 210 NW2d 336 (1973) 5

People v Wallach, 110 MichApp 37; 312 NW2d 387

GS oo caes cabo cGha SEMIRIEIN CS 60 cS cccposcaven 4

Robbins v California, 453 US 420 (1981) ........... 8

Sibron v New York, 392 US 40 (1968) ............ 7,9

South Dakota v Opperman, 428 US 364 (1976) 3, 10, 12

Terry v Ohio, 392 US 1 (1968) ............... 3, 6, 8, 9

US v Chadwick, 433 US 1 (1977) .................. 12

US v Powless, 546 F2d /92 (8th Cir.), cert den 430 US

DEE <.oltuhd clits sos ceddect te i bade.ced tobe s 4

US v Rainone, 586 F2d 1132 (7th Cir. 1978), cert den

SED CUTER onc dududaes vie kwbins cane ctcees 8, 9

US v Ross,.___US——; 102 § Ct 2157; 72 LEd2d 572

SA Se eee a eee os re 1!

US v Russell, 411 US 423 (1973) ...............4..4. 5

US v White, 401 US 745 (1971) ..... 22.60... .64055. $

Wong Sun v US, 371 US 471 (1963) ............. 4, 10

Ybarra v lilinois, 444 US 85 (1979) ..... 2... 6.6665. 6

Miscellaneous:

SE Oe RP ELS, Rea wen a wenn tuees conve deawne 6

MCLA 333.7107; MSA 14.15(7107) ................. 5

MCLA 750.277; MSA 28.424 .................05045. 2

Michigan Constitution, art 1, §11................... 4

SP ORO Ss TERRE DNS 55 UM c ed ccc cvcidews l

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1982

No. 82-256

Tre Peorce or tHe State or Miceican,

Petitioner

-VS-

Dav Kerk Lona,

Respondent

ON PETITION FOR

A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF MICHIGAN

OPINIONS BELOW

The Michigan Court of Appeals opinion (Petition App.

35) is reported at 94 MichApp 338; 288 NW2d 629 (1979).

The Michigan Supreme Court judgment (Petition App. 8) is

reported at 413 Mich 461; 320 NW2d 866 (1982).

13, 1982. The jurisdiction of this Court is invoked

USC §1257(3).

2

STATEMENT OF FACTS

On August 25, 1977, two Barry County, Michigan,

Sheriff's deputies pursued a speeding car (PT 4, 16-18; Tr

126-8*). After a short pursuit, the car swerved and stopped

with its front in a shallow ditch, its back on the roadway

and its driver’s side toward the deputies (PT 4, Tr 129-30,

145, 164-5). David Long, the only occupant of the car, left

the driver’s scat and met the deputies at the rear of the car

(PT 5S, 19, 46; Tr 130, 145-6). Although Long appeared

unsteady, disoriented and ‘ the influence of some-

thing’’ (PT 20; Tr 181), he was cooperative at all times (PT

19; Tr 181-2) and produced his driver's license after being

asked for it twice (PT 5, 47; Tr 130-1).

Long was asked for the registration and proof of insur-

ance of the car (PT 47; Tr 131). Without speaking, he

walked toward the open driver's door (PT 47; Tr 131). The

deputies then saw, and retrieved from the floor of the car, a

large, closed folding knife (PT 6, 26, 48; Tr 132-3, 165-6).

No claim was made that the ‘‘buck’’ knife was contraband.

The Defendant wes not charged with a weapons offense (PT

time (PT 50). The deputies said they searched the interior of

the car for weapons because they were going to permit

Long to gei in to retrieve the registration (PT 8, 28). They

thought the registration was in the glove box (PT 34). They

3

Although tools, including a hammer and screwdriver,

were scattered about the “‘messy’’ car (PT 21; Tr 147, 181),

the search for weapons was concentrated on a leather

object which protruded slightly from beneath a foilded-down

armrest (PT 6-7; Tr 133-4, 148). Deputy Howell lifted the

armrest and removed a leather, pocket-sized wallet. He

removed the wallet from the car and opened it to take out a

plastic bag containing marijuana (PT 6-7; Tr 134-5, 139, 168,

173).

Long was arrested for possession of marijuana (PT 8; Tr

139). Deputy Howell then searched the car for other con-

traband (Tr 140). The Defendant did not have a key to the

trunk of the car, (PT 9, 132; Tr 140), so one of the deputies

forced the keyless latch with his pocket knife and found

two bags containing approximately 75 pounds of marijuana

(PT 10, 13, 32-3; Tr 140-1, 144).

Deputy Howell searched the trunk to sce if there was

contraband in it and because he had a personal policy of

checking for valuables in cars that he intended to impound,

testifying that ‘‘we do not have an inventory search"’ in the

Sheriff's Department (PT 10-11; Tr 141).

The car was towed to the Sheriff's gavage where it was

left overnight with the marijuana in it (PT 14, 51-2; Tr

142-3, 176-7). No written inventory was produced at trial

and the deputies could not testify precisely about the car’s

contents (PT 22; Tr 146-7, 182).

Long moved at various stages of the proceedings to

suppress the marijuana obtained in the searches of the car.

The prosecution never attempted to justify these searches

as “probable cause’’ searches. People v Long, 4

461, 472, 461 n.2; 320 NW2d 866, 869-70, $73 n.2 (

sought to justify the initial search of the

protective search under Terry v Ohio, 392 US 1 (1968), and

the search of the trunk as an inveatory search under South

Dakota v Opperman, 428 US 364 (1976).

trunk was suppressed as ‘‘fruit of the poisonous tree.”

Wong Sun v US, 371 US 471 (1963).

when the item seized is not one within the proviso of the

third sentence of art 1, §11"" of the state Constitution.

People v Secrest, 413 Mich 521, 525; 321 NW2d 368, 369

(1982). See also People v Nabers, 103 MichApp 354, 375;

303 NW2d 205, 214 rev’d on other grounds 411 Mich 1046;

309 NW2d 187 (1981); People v Wallach, 110 MichApp 37,

70 0.8; 312 NW2d 387, 403 n.8 (1981); and People v

Chernowas, 111 MichApp 1, 4; 314 NW2d 505, 507 (1981).

The proviso of the third section of art 1, §11 of the

Michigan Constitution prohibits application of the exclu-

sionary rule to, among other things:

ret BY

5

“Any narcotic drug... seized by a peace officer out-

side the curtilage of any dwelling house .. .”

People v Moore, 391 Mich 426; 216 NW2d 770 (1974),

cited at page 5 of the Petition, deals with this proviso.

Neither the proviso nor Moore appiies to this case. Michi-

gan has a statutory definition of “‘narcotic drug’ which

does not include marijuana. See MCLA 333.7107; MSA

14. 15(7 107).

Examples of the greater protection afforded by the

Michigan Constitution abound.

The Michigan Constitution prohibits warrantless par-

ticipant monitoring of telephone conversations. People v

Beavers, 393 Mich 554; 227 NW2d 511, cert den 423 US 878

(1975). Warrantless participant monitoring is permitted

under the federal Constitution. US v White, 401 US 745

(1971).

The subjective test of entrapment is followed under the

U.S. Constitution. US v Russell, 411 US 423 (1973). Michi-

gan follows the objective test. People v Turner, 390 Mich 7,

19; 210 NW2d 336 (1973).

The Michigan Constitution’s double jeopardy provision

bars prosecutions by “dual sovereignties’’ for the same

crime. People v Cooper, 398 Mich 450; 247 NW2d 866

(1976). Compare Bartkus vy Illinois, 359 US 121 (1959).

Even the Attorney General has acknowledged that

Michigan law affords greater protection to the accused than

the U.S. Constitution. He has recently been quoted as

saying that Michigan’s legal system:

‘*‘is more restrictive than the federal system in virtually

every important area of criminal law and criminal pro-

cedure.’’ See Appendix 2a.

The Michigan Supreme Court decision is based on an

adequate state ground. The state Constitution was men-

6

tioned expressly as one basis of the opinion. If the Attorney

General thought the decision was incorrect, he should have

moved for rehearing pursuant to GCR 1963, 864.4. The

Petition for Certiorari should be denied.

Hi. THE MICHIGAN SUPREME COURT DECISION

APPLIED WELL-ESTABLISHED LEGAL PRINCI-

PLES TO PARTICULAR FACTS.

The Michigan Supreme Court did not repudiate Terry v

Ohio, 392 US 1 (1968). Its decision involved the application

of generally agreed upon legal principles to the unique facts

of this case. Its decision is consistent with Terry and other

authority. Unless this Court perceives its function to be the

parsing for the possibility of error every appellate opinion

applying its precedents, there is no occasion for further

review.

Terry v Ohio, 392 US 1, 25-6, 30-1 (1968), authorized

‘‘pat-down searches’’ for weanons in the absence of proba-

ble cause, saying that such a search must “be strictly

circumscribed by the exigencies which justify its initiation.’’

In very limited circumstances, a police officer is ‘‘entitled

for the protectica of himself and others in the area to

pyr nr tage Sar stop te Bhar sams, Me

j to

i

ia

Th

:

:

Seaum Undver nasties © wading” Ybarra v

Illinois, 444 US 85, 93 (1979).

“Because Terry involved an exception to the general

rule requiring probable cause, this Court has been care-

ful to maintain its narrow scope.’’ Dunaway v New

York, 442 US 200, 210 (1979).

“In the case of a self-protective search for weapons, [an

officer] must be able to point to particular facts from

7

which he reasonably inferred that the individual was

armed and dangerous.’' Sibron v New York, 392 US 40,

64 (1968).

in this case, the deputies were not able to point to

particular facts from which they inferred that Long was

either armed or dangerous. They never testified that they

believed he was armed or dangerous. He was cooperative »t

all times (PT 19; Tr 181-2). He was never suspected of

anything more serious than a traffic offense (PT 24). The

folding knife which prompted the initial patdown was not

illegal. See People v Iverson, 34 MichApp 519, 524; 191

NW2d 745, 747-8 (1971). Although one deputy was ‘‘con-

cerned"’ about Long, his concern was not particularized and

he admitted that Long had given the deputies no reason to

draw their weapons or to take him to the patrol car (PT

27-8). The putdown search of Long showed that he was not

armed (PT 23, 48-9; Tr 147, 159, 167). The deputies had less

reason to believe that he was a danger to them after the

patdown search than when the knife was first seen.

The Defendant, at the time of the search of the car, was

outside it being detained by one of the deputies (PT 27; Tr

167), who would not have permitted him to get into the car

while he was watching (PT 26; Tr 183).

Although the deputies claimed that their search was for

w .pons, they ignored screwdrivers, hammers and other

legal, but potentially dangerous, objects (PT 22; Tr 182-3).

The deputies conducted a ‘‘generalized cursory search

for weapons,’’ extending beyond the ‘‘outer clothing’ of

the Defendant in the absence of particular facts inferring

any exigency or danger. The Michigan Supreme Court's

holding that this was unlawful was simply adherence to this

Court's repeated admonitions to ‘‘jealously and carefully”

draw exceptions to the warrant requirement and to limit

warrantless searches to ‘‘the exigencies of the situation that

made that course imperative."’ Coolidge v New Hampshire,

403 US 443, 455 (1971); Terry v Ohio, 392 US 1, 25-6

(1968). Further review by this Court is unwarranted.

None of the cases cited by the Attorney General in the

Petition for Certiorari require a different result. As noted by

the Michigan Supreme Court at 413 Mich 472 n.6, 320

NW2d 869 n.6, Robbins v California, 453 US 420 (1981) ‘is

inapposite as the court in that case addressed the propriety

of an automobile search conducted pursuant to probable

cause." Since the officers never claimed that they were

searching for contraband or that they had probable cause to

arrest the Defendant, the only possible justification for

looking inside the car was the ‘‘protective search"’ excep-

tion to the warrant requirement of the state and federal

Constitutions. '

The holding of the case is consistent with Canal Zone v

Bender, 573 F2d 1329 (Sth Cir. 1978). The investigating

officers in that case never indicated any reason to believe

that the Defendants were armed or dangerous. They

searched the interior of the car without first ‘‘patting

down" the Defendants. In US v Raiaone, $86 F2d 1132,

1136 (7th Cir. 1978), cert den 440 US 980 (1979), the Court

characterized these actions as completely defeating ‘‘the

protective rationale of Terry.’' Cf. Sibron v. New York, 392

US 40, 65 (1968), People v Rosales, 406 Mich 624; 281

NW2d 126 (1979), cert den 444 US 1025 (1980).

' Page 3 of the Petition for Certiorari hints that the deputies believed

the Defendant had an open container of intoxicants illegally in the car.

The deputies never said they searched Long's car because they thought it

contained open intoxicants. A considerable extrapolation of the record is

required to SF ne nee Se See Gang Lease ot

contained open (see App. ta) if the deputies had

ele Sen Se Bee So ane oe ore Coo Seni.

their search of the car without a wurrant would have unlawful under

law. See v Lolley, 113 MichApp 557, 317 NW2d 342, lv

den 413 Mich 919 (

defeating the protective rationale of Terry. They

were going to let the Defendant in the car to get

stration, but one of them testified that at least some

papers they were looking for may have been found

before the search. Defendant Long, like the Defendants in

Bender, was outside the car during the search, under the

control of the investigating officers, offering no threat to

them, and not in a position to retrieve anything from the

car. Simply put, as in Bender, Sibron, and Rosales, there is

adequate reason to question the existence of the protective

motive for the search required by Terry.

US v Powless, 546 F2d 792 (8th Cir.), cert den 430 US

910 (1977) held that investigating officers who had been

given a reliable tip that the occupants of a particularly-

described van were armed and dangerous had probable

cause to search the van. A gun was discovered ‘‘in plain

view’’ when one of the officers looked for the vehicle

registration number of the van. The Court's discussion of

extending a ‘‘frisk’’ of the Defendants to the van is dictum.

In US v Rainone, 586 F2d 1132 (7th Cir. 1978), cert den

440 US 980 (1979), the Defendants were reasonably be-

lieved to present ‘“‘some danger’ related to an ongoing,

violent intra-family dispute. The Court specifically found

that it was reasonable to believe that the Defendants were

R not a lone defendant suspected of a

traffic offense, as in this case. The Court held that ‘‘in the

circumstances presented by this case . . ."’ it was proper for

the investigating officers to conduct a limited search of the

car's interior. The Court noted that the officer removed

from the car only those items that appeared to be weapons.

his attentions on a very un-

weaponlike object. Since the facts of this case are not the

same as those in Rainone, there is no conflict between

them.

tire

perman.

The second issue framed by Petitioner includes the

question of whether the seizure of marijuana from the trunk

of Defendant's car violated South Dakota vy Opperman, 428

US 364 (1976). The Michigan Supreme Court never reached

this question. South Dakota v Opperman is not discussed in

the majority opinion. Rather, the Court held that since there

would have been no further search of the car had the search

of the interior not uncovered contraband, the ‘‘fruit of the

poisonous tree’’ doctrine of Wong Sun v US, 371 US 471

(1963) applied. The State has not argued that the Court

incorrectly applied Wong Sun.

The decision to impound the car was not made until

after the Defendant was arrested for possession of the

marijuana found on the front seat (TR 139). As concurruing

Justice Moody pointed out, the prosecution never sought to

justify the trunk search under the ‘‘automobile exception,”

as a search incident to an arrest or as a search based on

probable cause. 413 Mich 461, 481 n.2; 320 NW2d 866, 873

n.2. Since the impoundment and subsequent trunk search

were a direct result of an unlawful search, Wong Sun was

correctly applied.

What the Michigan Supreme Court would have done if

Wong Sun had not applied is hypothetical. It would waste

this Court's resources to review a concurring opinion in a

Michigan Supreme Court case on a point not reached by the

majority.

having given him the opportunity to post bond. People v

Dixon, 392 Mich 691; 222 NW2d 749 (1974); People v 7th

District Judge, 55 MichApp 471, 476; 222 NW2d 778, 781

(1974); People v Garcia, 81 MichApp 260; 265 NW2d 115

(1978) and People v Cavitt, 86 MichApp 59; 272 NW2d 196

(1978).

The fact that the Defendant had not produced registra-

tion did not give the officers right to suspect that the

vehicle was stolen or to search or impound it. People v 7th

District Judge, supra; People v Marshall, 23 MichApp 376,

379; 181 NW2d 578 (1970).

Even if the deputies had probable cause to believe that

Long had committed a misdemeanor (possession of

marijuana), they would not, under Michigan law, have been

able to search his car without first securing a warrant, since

the misdemeanor was not committed in their presence.

People v Lolley, 113 MichApp 567; 317 NW2d 342, lv den

413 Mich 919 (1982).

Michigan has not adopted the rule of US v Ross,

—— US —__; 102 § Ct 2157; 72 LEd2d 572 (1982).

Under Michigan precedent, discovery of marijuana in the

interior of the car would not have justified a search of the

trunk. People v Hilber, 403 Mich 312, 329; 269 NW2d 159

(1978). There was no lawful basis for impounding the car

under Michigan law. The Writ of Certiorari should be

denied.

12

C. The Deputies’ Search Of Long’s Car Trunk Was Not

A Valid Inventory Search.

Deputy Howell testified that his Department did not do

inventory searches. He said he had a personal policy of

checking for valuables (PT 10-11). The police had absolutely

secure storage facilities for the vehicle available, i.e. the

basement of the police garage (Tr 176-7). These facts alone

take this case outside the rationale of South Dakota v

Opperman, 428 US 364, 376 (1976), which upheld inventory

searches ‘‘following standard police procedures."’ US v

Chadwick, 433 US 1, 13 (1977) analyzed the rationale for

inventory searches saying:

‘Absolute secure storage facilities may not be available,

and the size and inherent mobility of a vehicle makes it

susceptible to theft or intrusion by vandals."’

In short, the factors that led this Court to uphold the

inventory search in South Dakota v Opperman are absent

here. Even if the Michigan Supreme Court had reached this

question, it would have been justified in finding the search

unlawful.

13

would have been controlled by applicable state law.

State has never sought to justify the searches in this case

on any grounds other than those adequately addressed in

the lower courts. Recent decisions of this Court dealing

with other exceptions to the warrant requirement are not

applicable. The Petition for Certiorari ought to be denied.

Business Address:

107 West Michigan-Suite 301

Kalamazoo, Michigan 49007

Telephone: 616-344-1575

Counsel of Record for Respondent

Address:

Kalamazoo, Michigan 49007

Viacnos, Jenxins a Huaey

729 Academy Street

Telephone: 616-381-6646

Business

Joseph J. Jerkins

Preliminary Examination

TESTIMONY OF GEORGE HOWELL (CROSS)

. What would you say? How would you describe him

as his conduct?

He appeared to be under the influence of something.

Okay, anything besides that?

You're asking me for opinion, my opinion?

. Pardon?

. In my opinion he acted scared.

. He what?

I said in my opinion he acted scared.

. He acted scared? Well, don't most people when they

are stopped by a police officer at twelve o five act a little

nervous and scared?

A. No sir.

Q. You don't think so?

A. No sir.

Q. I see, you've never had that experience I take it?

A. Yes I have at times. Usually they have open intox in

the car or something like that.

O>O>O>rOrBO

ig j

A

hed

Thursday. July 29. 1962

PAGE D-S