Petitioners Brief — Michigan v. Long

Office - Supreme Court, U.S.

FILED

yoy #4 98?

ALEXANDER L. STEVAS.

No. 82-256 CLERK

IN THE SUPREME COURT OF THE UNITED SIATES

OCTOBER TERM, 1982

STATE OF MICHIGAN

PETITIONER,

Vv.

DAVID KERK LONG,

RESPONDENT,

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MICHIGAN

BRIEF OF PETITIONER

FRANK J. KELLEY, James H. Geary

Attorney General of Michigan LITTLE & GEARY

107 W.

Louis J. Caruso, Suite 301

Seater Conceal ct Michign = seneane, MI 40007

Leonard J. Malinowski, Telephone: 616/344-1575

Assistant Attorney General Counsel for Respondent

760 Law Building

525 West Ottawa

Lansing, Michigan 48913

Telephone: 517/373-1124

Counsel for Petitioner

i

QUESTIONS PRESENTED

L.

WHETHER POLICE OFFICERS AT A TRAFFIC STOP

ACTED UNREASONABLY UNDER TERRY v OHIO AND

US CONST, AM IV IN LIFTING THE FRONT SEAT

CENTER ARMREST OF DEFENDANT'S CAR TO IN-

VESTIGATE THE “LEATHER” ARTICLE PROTRUDING

THEREUNDER (VISIBLE FROM OUTSIDE THE CAR),

AFTER THEY SEIZED A FOLDING HUNTING KNIFE

FROM THE CAR FLOORBOARD (VISIBLE FROM OUT-

SIDE THE CAR) WHEN THE POLICE WERE CONTIN-

UING THEIR INVESTIGATION TO DETERMINE IF

THE DISORIENTED DEFENDANT WOULD BE PER-

MITTED TO RE-ENTER THE VEHICLE TO OBTAIN

THE VEHICLE REGISTRATION OR WHETHER THE

DEFENDANT WOULD BE ARRESTED?

WHETHER THE SEIZURE OF 75 POUNDS OF MARI-

JUANA FROM THE TRUNK OF DEFENDANT'S IM-

POUNDED CAR FOLLOWING HIS ARREST VIOLATED

SOUTH DAKOTA v OPPERMAN OR WAS THE “FRUIT”

OF THE ILLEGAL ARMREST “SEARCH” PER WONG

SUN v UNITED ST ATES?

TABLE OF CONTENTS

Page No.

TABLE OF AUTHORITIES .................-200008: iii

I I Gio. os sivucdbacstonsvcteseders v

ne acl v

CONSTITUTIONAL PROVISIONS INVOLVED ...... v

nes ns, cds vescnncdunens 1

SUMMARY OF ARGUMENT ................-.00055 5

I Win uz: cen den dhs dks si dbedeasavacread 9

oe cade sales ble cncuteanael 18

REESE Fee Ss ene ee POPES 27

TABLE OF AUTHORITIES

Cases: Page No.

Adams v Williams, 407 US 143; 92 S Ct 1921;

32 L Ed 2d G12 (19072) ............. cee eeee 6,7, 11, 13,14

Brinegar v United States, 338 US 160; 69 S Ct 1302;

oe | eee ..7,13

Brown v State, 358 So 2d 596 (Fla App, 1978) ........ 16, 18

Cady v Dombrowski, 413 US 433; 37 L Ed 2d 706;

Pre 8, 20, 21, 22, 23

Canal Zone v Bender, 573 F2d 1329 (CA 5, 1978) ....7, 8,17

Carroll v United States, 267 US 132; 45 S Ct 280,

PTD 's oh us odscdubceepahenssceuhy 7, 13, 24

Chambers v Maroney, 399 US 42; 90 S Ct 1975,

26 L Ed 2d 419 (1970) reh den 400 US 856 .......... 20

Colorado v Bannister, 449 US 1; 101 S Ct 42;

ee EE GED 0. o'sbecbo ck’ cucovddscdtvetGuns dd 24

Commonwealth v Almeida, 373 Mass 266; 366 NE2d 756

SEE ebidticacwesevnd 00tbuskéchtheuinelene 16, 17, 18

Commonwealth v Silva, 366 Mass 402; 318 NE2d 895

A iG» inked due labetan oe vevelivactbeconpaeenel 16

Cooper v California, 386 US 58; 87 S Ct 788;

a Ce COED occencbn vacedbensspesaue 20, 21, 23

Harris v United States, 390 US 234; 88 S Ct 992;

lk ly gl eee 20, 23

Michigan v Thomas, .... US . . . .; 102 $ Ct 3079; 73 L Ed

2d 750 (31 Cr L 4103, June 30, 1982) ... .9, 24, 25, 26, 27

Pennsylvania v Mimms, 434 US 106; 98 S Ct 330;

OEE WARE GMAIBTE) «2.5 ecadicdvcrcéccenee: 7, 14, 15

People v Long, 94 Mich App 338; 288 NW2d 629 (1979)

rev, 413 Mich 461 (1982) ..............0.e0eeuee v, 19

People v Long, 413 Mich 461; 320 NW2d 866

SD Mii 0...) nemess «ub Adaeeaate ne 5, 6, 10, 17, 27

iv

Page No.

South Dakota v Opperman, 428 US 364; 96 S$ Ct 3092;

49 L Ed 2d 1000 (1976) ........ 8, 15, 19, 20, 21, 22, 23, 27

State v Brown, 160 NJ Super 227; 389 A 2d 507 (1978) . .16, 18

State v Darling, 393 A 2d 530 (Maine, 1978) ......... 16, 18

State v Gilchrist, 299 NW2d 913 (Minn, 1981) ........ 17,18

State v Luxem, 324 NW2d 273 (32 CrL 2041,

Dapteeeee GD, TST) occ cccccccessccsccsccvcccvones 17

State v Malbeck, 15 Wash App 871; 552 P2d 1092 (1976) 16

Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L, Ed 2d 889

SY bis coonvedens 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19

Uptegraft v State, 621 P2d 5 (Alaska, 1980) .......... 18

United States v Green, 465 F2d 620 (CADC, 1972) ....16, 18

United States v Powless, 546 F2d 792 (CA 8, 1977), cert

den, 430 US 910; 97 S Ct 1185; 51 L Ed 2d 588 (1977) 17

United States v Rainone, 586 F2d 1132 (CA 7, 1978), cert

den, 440 US 980; 60 L Ed 2d 239; 99 § Ct 1787

SUE 4.06 800 Beane o.006us006ds Couetbbusonceee 16, 17, 18

United States v Ross, .... US ....; 102 § Ct 2157; 72

L Ed 2d 572 (31 Cr L 3051, June 1, 1982) ........ 9, 24, 25

United States v Thomas, 314 A2d 464 (DC App,

SE Dain 54. c660ca¥vecknssiescdeuseeees skeen 14, 16, 18

United States v White, 648 F2d 29 (CADC, 1981) ...... 11

United States v Wilkerson, 598 F2d 621 (CADC, 1978) . .16, 17

Williams v Adams, 441 f2d 394 (CA 2, 1971) rev,

407 US 143 92 S Ct 1921; 32 L Ed 2d 612 ............ 13

Williams v State, 19 Md App 204; 310 A2d 593 (1973) .. 17

Wong Sun v United States, 371 US 471, 88 S$ Ct 407;

Sy ob wal «nc cute'eacs cece Gbsnde 9,19

Miscellaneous: :

ee ee OY cid ka de cai CHWs debccs caniadedens v, 19

Vv

OPINIONS BELOW

The opinion of the Michigan Supreme Court is reported at

413 Mich 461; 320 NW2d 866 (1982). The Michigan Court of

Appeals’ opinion is reported at People v Long, 94 Mich App

338, 288 NW2d 629 (1979).

JURISDICTION

The opinion of the Michigan Supreme Court was issued

June 14, 1982, and the jurisdiction of this court is invoked

under 28 USC 1257(3). The petition for a writ of certiorari

was filed within the time prescribed in Supreme Court Rule

20.1, and the writ was granted in an order entered October 12,

1982.

CONSTITUTIONAL PROVISIONS INVOLVED

US Const, Am IV;

“The right of the People to be secure in their persons,

houses, papers, and effects against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

Mich Const 1963, art 1, § 11;

“The person, houses, papers and possessions of every

person shall be secure from unreasonable searches and

seizures. No warrant to search any place or to seize any

person or things shall issue without describing them, nor

without probable cause, supported by oath or affirmation.

The provisions of ‘nis section shall not be construed to

bar from evidence in any criminal proceedings any narcotic

drug, firearm, bomb, explosive or any other dangerous

weapon, seized by a peace officer outside the curtilage of

any dwelling house in this state.”

No. 82-256

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

STATE OF MICHIGAN,

PETITIONER,

Vv.

DAVID KERK LONG,

RESPONDENT,

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MICHIGAN

BRIEF OF PETITIONER

STATEMENT OF CASE

Just after 12 midnight of August 24-25, 1977, Deputy Howell

and Deputy Lewis of the Barry County Sheriff Department

clocked a car speeding past them in the opposite direction. By

radar the car was hitting 71 miles an hour. (J.A. lla, 56a, 76a,

119a). The deputies pursued the car without flashers, then lost

it, then saw it make a left turn, and proceed down the side

road, then swerve, then stop. (J.A. lla, 23a, 47a, 77a, 108a).

When the deputies arrived on the scene, the Mercury sedan

was jammed into a ditch and sat broadside on the highway.

(J.A. lla, 14a, 56a, 78a, 116a). David Long, the driver and

sole occupant, still sat behind the wheel. (J.A. lla, 47a, 78a,

108a).

As the deputies approached the car, the driver got out of

the Mercury, left his door wide open, and met the deputies

at the rear of the Mercury. (J.A. Ila, 12a, 24a), Deputy

Howell asked for a driver's license. The driver just stared and

made no response. (J.A. lla, 24a, 48a, 79a). Howell asked

again, The driver waited a few seconds then produced a li-

cense. Howell asked for a registration and proof of insurance.

No movement, no response. Then, without a word, the driver

turned and walked back to his opened door. (J.A. 1la,

26a, 48a, 56a, 79a, 91a, 110a). Howell formed an opinion that

defendant “appeared to be under the influence of something”

(J.A. 25a). Howell felt that the driver “acted scared,” not so

much from the traffic stop but similar to when “they have open

intox in the car or something like that.” (J.A. 25a, 119a).

Deputy Howell refused to describe defendant as “passive.”

(].A. 25a). The deputies followed the defendant.

As they all approached the opened door, both deputies saw

a large folded knife lying on the driver's floorboard in front

of the seat near the open door. (J.A. 12a, 26a, 27a, 49a, 57a,

79a). The defendant was told to “hold it” and put his hands

on the roof. Howell frisked the defendant for weapons, while

Lewis retrieved the weapon (Exhibit 1) (J.A. 12a, 29a, 49a-

50a, 80a). The weapon was a large folding Browning knife.

(].A. 12a). [Photographs of Exhibit 1 were filed with the

Supreme Court in a motion to expand the record. See GCR

1963, 812.4, 862. The knife has a 4” blade and when fully

extended, the weapon is approximately 9” in length. }

The deputy said after seizing the knife that the driver was

not under arrest but was “not free to leave” because the deputy

“still wanted to talk to him.” (J.A. 30a).

Deputy Howell then shined his flashlight into the front seat

area of the car to search for further weapons (J.A. 13a, 33a, 35a,

52a, 81a, 100a). Deputy Howell testified that he was not going

to let defendant go to the car door after seeing and seizing the

ot

knife from defendant's car (J.A. 32a, 54a). In the light of his

flashlight, Howell saw something leather-like sticking out

under the folded down dual front seat armrest. (J.A. 13a, 57a,

82a, 94a, 100a). Aside from some papers on the floor area,

nothing else appeared in the front seat area. (J.A. 26a).

Howell kneeled in the vehicle, raised the driver-side armrest

and, with his flashlight saw an open leather pouch. (J.A. 13a,

57a, 83a). The pouch was large enough to hold a weapon in

it. (J.A. 36a). Before touching it Howell saw a clear plastic

baggie protruding from one side of the open pouch containing

a grass-like material. (J.A. 13a, 36a, 37a, 10la). The material

appeared to Howell to be marijuana. (J.A. 13a, 83a). Howell

removed the pouch and baggie, showed it to Lewis and both

confirmed it as being marijuana, (J.A. 84a). Feeling a

solid object in the pouch (J.A. 13a), the deputy determined

that the pouch also contained a bottle filled with white powder,

a tin foil wrapped pill and a package of roll-your-own cigarette

papers. (J.A. 13a, 14a, 37a, 38a).

Defendant was arrested for Possession of Marijuana (J.A.

14a, 39a, 84a) and the decision to impound the car was made

(J.A. 14a, 57a, 85a). Then, the car interior was searched

ugain for additional contraband, and the glove box for any

vehicle registration. (J.A. 14a). No contraband or registration

were found. A title for the 1972 Mercury was found in the

glove box. (J.A. 14). Outside the car, Deputy Howell asked

defendant for the key, having noticed that the key was missing

trom the ignition. (J.A. 14a). Defendant handed over a single

key. When asked for the trunk key, defendant stated “I have

no key.” (J.A. 15a, 57a, 86a, 100a).

After deciding to impound the car, and pursuant to his

“standard policy” to check for valuables, (J.A. 15a, 16a), and

further contraband, (J.A. 17a, 86a), Deputy Howell walked

around the car and observed that the trunk lock “had been

punched out,” leaving a hole. (J.A. 16a). Two handprints

entine

were evident on the trunk lid “in the dust.” (J.A. 86a), Insert-

ing his own pocketknife into the hole, Deputy Howell tripped

the latch and raised the lid. (J.A. 16a, 86a). In the trunk, two

large bags with a split in both, were seen to contain marijuana.

(J.A. 19a, 40a, 115a). Defendant was then handcuffed, placed

in the cruiser, and transported along with the towed car to the

sheriffs department. (J.A. 20a), The trunk bags weighed

about 75 pounds total. (J.A. 89a).

Following his arraignment, a preliminary examination was

held on September 22, 1977. (J.A. la). Defendant was bound

uver on, among other things, Possession with Intent to Deliver.

(J.A, 60a). An Information charging Possession with Intent to

Deliver Marijuana was filed (J.A. 60a) and a Motion to Sup-

press was made (and denied, on April 28, 1978, J.A. 62a-65a).

Another Motion to Suppress was made on August 28, 1978,

(J.A. 70a), and denied (].A. 73a). Various motions were made

in limine (J.A. 65a-70a). Two pretrial hearings were held.

(J.A. 62a-65a). A pretrial Motion to Suppress was heard and

denied (J.A. 70a-74a). Jury trial commenced ou August 28,

1978, and the charge of Possession of Marijuana with Intent

to Deliver was reduced to Possession of Marijuana following

an improper opening, statement by the prosecutor, (].A. 74a).

A motion was made to exclude the seized contraband at trial

after the prosecutor rested, and was denied (J.A. 122a-124a).

A motion for a directed verdict was made and denied, (J.A.

125a-127a).

Defendant was convicted of Possession on August 29, 1978,

following an hour's deliberation by the Jury. Defendant was

placed on a two year probation and fined approximately $1,000,

(].A. 129a).

Defendant appealed, The Court of Appeals affirmed de-

fendant’s conviction at 94 Mich App 338; 288 NW2d 629

(1979). Leave was granted by the Supreme Court on July 15,

a

1980, and the parties were “directed to include among the

issues to be briefed whether the marijuana found in the auto-

mobile driven by defendant should have been suppressed as

the product of an illegal search.”

The Michigan Supreme Court reversed the conviction at

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

The Attorney General for the State of Michigan filed a peti-

tion for writ of certiorari which was docketed in this Court on

August 13, 1982. On October 12, 1982, the petition for writ

of certiorari was granted.

SUMMARY OF ARGUMENT

Defendant, David Long, speeding and being pursued by

Sheriff's deputies on a lonely county road late at night, jammed

his car into a roadside ditch. David Long, who was the driver

and sole occupant met the approaching deputies outside his

car. During the investigation by the deputies, the disoriented

defendant-driver failed to produce proper vehicle identifica-

tion, and led the deputies back to defendant's open car door.

At the open door of defendant's car, one deputy stopped de-

fendant when he saw and seized a knife from the car floor-

board; the other deputy frisked the defendant. The deputies

were very concerned about more weapons in the car. Before

letting defendant re-enter the car to get the needed identifica-

tion, one deputy flashed his flashlight over the defendant's

front seat and saw a leather object under the folded down

center armrest. The deputy kneeled in the seat and flipped up

the armrest and in the light of his flashlight saw an open pouch

big enough to hold another weapon. Protruding from the

pouch was a plastic bag containing grass-like material. In the

light of his flashlight and without touching the bag, the deputy

believed the grass-like material was marijuana. The pouch was

seized, and defendant was arrested for possessing marijuana;

defendant's car was impounded. While waiting for the tow

truck, one deputy raised the lock-less trunk lid and saw and

seized the two large open plastic garbage bags containing ap-

proximately 75 Ibs of marijuana.

The “armrest” frisk in this case (People v David Long, 413

Mich 461; 320 NW2d 866 (1982) ) did not violate Terry v Ohio,

392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968) or the Fourth

Amendment during this valid investigation where the deputies

were reasonably concerned about more weapons being in the

car.

Terry, noting the large number of police deaths in the

United States in the line of duty, found it unreasonable to pre-

vent police officers from taking those measures necessary to

neutralize the threat of physical harm when investigating

suspicious persons or circumstances where weapons are rea-

sonably suspected (or in fact exist, as in this case).

The Terry rationale applies where probable cause may not

yet exist, but a reasonable suspicion persists that the present

situation is dangerous.

The scope of the Terry “frisk,” left for future case develop-

ment, was limited to the justification for the need for the frisk.

In this case, the armrest frisk met the scope of the Terry

rationale; i.e., “an intrusion reasonably designed to discover

guns, knives, clubs, or other hidden instruments for the assault

of the police officers.” Terry v Ohio, 392 US at 29.

Although Terry did not arise in a case involving an auto-

mobile, Terry was applied in an automobile context in Adams

v Williams, 407 US 143; 92 S$ Ct 1921; 32 L Ed 2d 612 (1972).

There, this Court upheld the Terry “frisk” of a driver seated

di Cea

behind the wheel of a stationary vehicle. The frisk in Adams

reasonably escalated into a justifiable search of defendant's car

as part of the automobile exception cases, Carroll v United

States, 267 US 132; 45 S Ct 280; 69 L Ed 543 (1925) and

Brinegar v United States, 338 US 160; 69 S Ct 1302; 93 L Ed

1879 (1949).

Pennsylvania vy Mimms, 434 US 106; 98 S Ct 330; 54 L Ed

2d 331 (1977) correctly applied the Terry rationale to a situa-

tion involving a traffic stop where the driver was ordered out

of the car—for the officer's safety. Pennsylocnia v Mimms

could not and did not ignore the police death statistics in traffic

stop situations, and held that a Terry-type protective frisk was

a de minimis intrusion of a Fourth Amendment right when

balanced against a police officer's perceived need to protect

himself.

The initial stop and investigation by the deputies in this

case was never contested. The armrest frisk was less intrusive

to defendant then a frisk of his person. ,

Numerous federal and state cases have upheld the limited

frisk of automobiles for weapons in Terry-type investigations

involving automobiles. Given the limited expectation of privacy

in automobiles, and the ongoing investigation in this case, the

armrest frisk here was no more extensive than was necessary

to disclose any weapon reasonably suspected of being hidden

under it.

The Fourth Amendment does not require that investigating

officers defer protective measures to the point of peril, when

reasonable grounds exist for believing, that their safety re-

quires a frisk.

In Canal Zone v Bender, 573 F2d 1329 (CA 5, 1978), the

appeals court believed that the need for a Terry protective

vehicle to obtain further identification.

ant’s car. Other state and federal cases, dealing with automo-

bile frisks where the suspect(s) were outside the car, would

uphold the armrest search.

The Michigan Supreme Court's decision below by adopting

the reasoning of Canal Zone v Bender, applied the Terry

rationale too narrowly and should be reversed.

The search and seizure of the 75 Ibs. of marijuana from de-

fendant’s trunk following the valid impoundment of the car

was a proper inventory search under South Dakota v Opper-

man, 428 US 364; 96 S Ct 3092, 49 L Ed 2d 1000 (1976).

Although the Michigan Supreme Court did not address the

validity of the inventory search of the trunk, one partially dis-

senting justice did, and found the trunk search invalid as

factually distinguishable from South Dakota v Opperman; i.e.,

no standard procedure exists in the Barry County Sheriff's De-

partment for conducting inventory searches, and the parking

lot for impounded cars in Barry County was secure.

South Dakoia v Opperman considered the standard proce-

dures rationale in Cady v Dombrowski, 413 US 433; 37 L Ed

2d 706; 93 S Ct 2523 (1973) as only “a factor tending to

ensure” that an inventory was as limited as necessary to ful-

fill the caretaking function of the police. Petitioner believes,

however, that the raising of the lockless trunk lid must have

comported with any “standard procedure for inventory

searches” adopted by police agencies and approved by courts

around the country. The lower courts in Michigan uniform-

ly approved of the inventory search in this case.

In addition, on the facts in this record, this Court may find

probable cause to search the trunk under the teaching of

United States v Ross, .... US ....; 102 § Ct 2157; 72 L Ed 2d

572 (31 Cr L 3051, June 1, 1982) and Michigan v Thomas, ....

US ....; 102 S Ct 3079; 73 L Ed 2d 750 (31 Cr L 4103, June

30, 1982).

Finally, Wong Sun v United States, 371 US 471; 88 $ Ct

407; 9 L Ed 2d 441 (1963), relied on by the Michigan Supreme

Court to suppress the marijuana seized from the car trunk was

misapplied, if the seizure of marijuana from inside the car as

a result of the “armrest frisk” was reasonable, and defendant's

arrest for possession of marijuana was appropriate.

ARGUMENT

1

POLICE OFFICERS AT A TRAFFIC STOP DID NOT ACT

UNREASONABLY UNDER TERRY V OHIO AND US

CONST, AM IV IN LIFTING THE FRONT SEAT CEN-

TER ARMREST OF DEFENDANT'S CAR TO INVEST-

IGATE THE “LEATHER” ARTICLE PROTRUDING

THEREUNDER (VISIBLE FROM OUTSIDE THE CAR),

AFTER THEY SEIZED A FOLDING HUNTING KNIFE

FROM THE CAR FLOORBOARD (VISIBLE FROM OUT-

SIDE THE CAR) AND THE POLICE WERE CONTINU-

ING THEIR INVESTIGATION TO DETERMINE IF

THE DISORIENTED DEFENDANT WOULD BE PER-

—10—

MITTED TO RE-ENTER THE VEHICLE TO OBTAIN

THE VEHICLE REGISTRATION OR WHETHER THE

DEFENDANT WOULD BE ARRESTED.

Defendant was speeding and jammed his car into a roadside

ditch. The pursuing sheriff deputies stopped their cruiser and

met defendant at the back of his immobilized car. Defendant

failed ‘o produce the proper identification and, without utter-

ing a word, walked back to his opened car door. Defendant

appeared to be “on something” in the opinion of the deputies.

The two deputies followed the defendant to his car and saw

a knife on the floor of defendant's car. This weapon, visible

from outside the automobile, was seized from the car. De-

fendant was then frisked, producing nothing. One deputy

standing by the open door shined a flashlight on the front

seat of defendant's car to look for more weapons, before letting

defendant re-enter the auto to get further identification. See-

ing something protruding from under the folded down center

armrest, one deputy knelt on the front seat, flipped up the

armrest and saw a baggie of marijuana under it. Defendant

was arrested for possession of marijuana. In People v Long,

413 Mich 461; 320 NW2d 866 (1982), the Michigan Supreme

Court erroneously held the armrest frisk to be invalid under

Terry v Ohio, 392 US 1; 20 L Ed 2d 889; 88 $ Ct 1868 (1968).

After seizing defendant's knife from the floorboard, the

warrantless frisk of the front seat area of defendant’s car fol-

lowing the pat down of his person, did not violate Terry v Ohio

or the Fourth Amendment. In Terry, the United States Su-

preme Court, noting the large number of deaths of police

officers in the United States in the line of duty, particularly

with guns and knives, reasoned:

“When an officer is justified in believing that the -

dividual whose suspicious behavior he is

close rangp is armed end presently dangerous to the offl-

cer or to others, it would appear to be clearly unreason-

able to deny the officer the power to take necessary

measures to determine whether the person is in fact carry-

ing a weapon and to neutralize the threat of physical

harm.”

Terry vy Ohio, supra, 392 US at 24

See also Adams v Williams, supra, 407 US at 148, fn 3; United

States v White, 648 F2d 29, 35, fn 29, 37, fn 38 and fn 39

(CA DC, 1981 ). In defining the Terry “stop and frisk” rationale,

the United States Supreme Court said:

“Our evaluation of the proper balance that has to be

struck in this type of case leads us to conclude that there

must be a narrowly drawn authority to permit a reason-

able search for weapons for the protection of the police

officer, where he has reason to believe that he is dealing

with an armed and dangerous individual, regardless of

whether he has probable cause to arrest the individual

for a crime. The officer need not be absolutely certain

that the individual is armed; the issue is whether a reason-

abiy prudent man in the circumstances would be war-

ranted in the belief that his safety or that of others was

in danger. Cf. Beck v Ohio, 379 US 89, 91, 13 L Ed 2d

142, 145, 85 S Ct 223 (1964); Brinegar v United States,

338 US 160, 174-176, 93 L Ed 1879, 1889-1891, 69 S Ct

1302 (1949); Stacey v Emery, 97 US 642, 645, 24 L Ed

1035, 1036 (1878). And in determining whether the officer

acted reasonably in such circumstances, due weight must

be given, not to his inchoate and unparticularized sus-

picion or ‘hunch,’ but to the specific reasonable inferences

which he is entitled to draw from the facts in light of his

experience. Cf. Brinegar vy United States supra.”

Terry v Ohio, supra, 392 US at 27 (footnote omitted )

— Wa

This Court found that the evidence seized in Terry “was

discovered by means of a seizure and search which were . . .

reasonably related in scope to the justification for [its] initia-

tion.” 392 US at 29. In applying the “stop and frisk” rule to

other cases, this Court said:

“We need not develop at length in this case, however,

the limitations which the Fourth Amendment places upon

a protective seizure and search for weapons. These limi-

tations will have to be developed in the concrete factual

circumstances of individual cases. See Sibron vy New York,

392 US 40, 20 L Ed 2d 917, 88 S Ct 1889. Suffice it to

note that such a search, unlike a search without a warrant

incident to a lawful arrest, is not justified by any need

to prevent the disappearance or destruction of evidence

of crime. See Preston v United States, 376 US 364, 367,

11 L Ed 2d 777, 780, 84 S Ct 851 (1964). The sole justifi-

cation of the search in the present situation is the protec-

tion of the police officer and others nearby, and it must

therefore be confined in scope to an intrusion reasonably

designed to discover guns, knives, clubs, or oter hidden

instruments for the assault of the police officer.

“The scope of the search in this case presents no serious

problem in light of these standards. Officer McFadden

patted down the outer clothing of petitioner and his two

companions. He did not place his hands in their pockets

or under the outer surface of their garments until he had

felt weapons, and then he merely reached for and removed

the guns. He never did invade Katz’ person beyond the

outer surface of his clothes, since he discovered nothing

in his pat-down which might have been a weapon. Officer

McFadden confined his search strictly to what was mini-

mally necessary to learn whether the men were armed

and to disarm them once he discovered the weapons. He

gn Mian

did not conduct a general exploratory search for whatever

evidence of criminal activity he might find.”

Terry v Ohio, supra, 392 US at 29-30

Terry v Ohio did not arise in an automobile context.

In Adams v Williams, supra, the Court applied Terry v Ohio

to uphold the warrantless search and seizure of a weapon from

defendant's waistband as defendant sat behind the wheel of

his stationary automobile. Defendant was arrested for possess-

ing the gun. A search of defendant's person revealed heroin

in defendant's pocket, followed by a car search revealing more

weapons in his car.{1} In Adams, the informant's tip telling the

police about the gun, though perhaps insufficient to establish

probable cause, for purposes of a search warrant or arrest, was

sufficient for a Terry “stop and frisk.” The Court, agreeing

that the investigating officer had ample reason to fear for

his safety based on this tip, said:

“So long as the officer is entitled to inake a forcible

stop, and has reason to believe that the suspect is armed

and dangerous, he may conduct a weapons search limited

in scope to this protective purpose.” (footnote omitted)

Adams v Williams, supra, 407 US at 146

{1}

In Adams v Williams, the subsequent warrantless search of defendant's

car as incident to defendant's arrest for possession of the gun and heroin

was reasonable, based on probable cause for such a car search under the

Carroll v United States, 267 US 132; 69 L Ed 543; 45 S Ct 280 (1925)

and Brinegar v United States, 338 US 160; 93 L Ed 1879; 69 S Ct 1302

(1949) automobile exception.

The court below in Williams vy Adams, 441 F2d 394 (CA 2, 1971)

ete

In the instant case, the officers saw and seized one weapon

from the car during a valid stop. Before letting defendant

re-enter the same car to get his vehicle identification, the frisk

of the front seat area including the raising of the armrest to

determine the nature of the leather object seen under the arm-

rest from outside the car was reasonable under the Terry

rationale (i.e., protection of the officers and others nearby)

and consistent with Terry as applied in Adams v Williams.

Accord, United States v Thomas, 314 A 2d 464 (DC App,

1974).

Here, the deputies seeing and seizing one weapon were

clearly worried about other weapons in the car. One deputy

agreed that he was not going to let defendant go to the car

after seeing and seizing the knife from the car.

In Pennsylvania vy Mimms, 434 US 106; 54 L, Ed 2d 331; 98

§ Ct 330 (1977), the application of Terry v Ohio in a traffic

stop situation to justify a police command to the occupants

to leave the vehicle was accepted as “too plain for argument

that the State’s proffered justification—the safety of the offi-

cer—is both legitimate and weighty.” There the Court recog-

nized:

“... the inordinate risk confronting an officer as he ap-

proaches a person seated in an automobile. * * * We are

aware that not all these assaults occur when issuing traffic

summons, but we have before expressly declined to accept

the argument that traffic violations necessarily involve

less danger to officers than other types of confrontations.

United States v Robinson, 414 US 213, 234, 38 L Ed 427,

94 S Ct 467, 66 Ohio Ops 2d 202 (1973). Indeed, it appears

‘that a significant percentage of murders of police officers

occurs when the officers are making traffic stops.’ Id., at

234 n 5, 38 L Ed 2d 427, 94 S Ct 467, 66 Ohio Ops 2d 202.”

Pennsylvania vy Mimms, supra, 434 US at 110.

lao Oihenk

After Mimms was ordered out of his car, the “bulge” under

Mimms’ coat was frisked and the weapon thereunder was

seized and this Court held that the action taken was appro-

priate under the Terry standard. “In these circumstances, any

man of ‘reasonable caution’ would likely have conducted the

‘pat down.’” 434 US at 112.

The traffic stop in the instant case was never contested

below. The propriety of the police investigating the immobil-

ized car was never questioned either.

Given the valid stop and investigation by the police of a

strangely behaving driver who stuck his car in a ditch and

who could not produce proper vehicle documents, the sight of

the knife in defendant's car only heightened the danger of the

situation in the minds of these deputies. After seeing and

seizing the knife, one deputy then immediately patted de-

fendant down. But, before letting defendant re-enter the car

to obtain further identification, the deputy shined his flashlight

onto the front seat and saw a “leather-like” article under the

armrest. The deputy “frisked” the front seat area of defendant's

car by flipping up the armrest. Under these circumstances, and

given the limited expectation of privacy in automobiles,!?! this

de minimis intrusion under the armrest of a stopped vehicle

under investigation, like frisking the bulge in a coat, is an in-

significant invasion of a defendant's personal security when

balanced against the legitimate concerns of the People for

the officer's safety. Pennsylvuania vy Mimms, supra, 434 US at

109, 111. Indeed, the frisk of a bulge in clothing is more

personally intrusive than flipping up an armrest to investigate

for additional weapons where one weapon was clearly seen

on the floorboard.

{2}

Cf., South Dakota vy Opperman, 428 US 364, 367-368; 49 L Ed 2d

1000, 1004; 96 S Ct 3092 (1976).

=

In this case, as in Brown v State, 358 So 2d 596, 601 (Fla

App, 1978):

“The search was limited to a manner no more extensive

then was necessary to disclose any weapon hidden under

the armrest. Consequently, the search under the armrest

fell within the scope of a protective search. The police

officer acted reasonably in his search under the armrest.

Accord, Commonwealth v Almeida, 366 NE 2d 756 ( Mass,

1977).”

Brown v State, 358 So 2d 596, 601

Accord, State v Darling, 393 A 2d 530 (Maine, 1978); Com-

monwealth v Silva, 366 Mass 402; 318 NE 2d 895 (1974);

Commonwealth v Almeida, 373 Mass 266; 366 NE2d 756, 760

(1977); State v Brown, 160 NJ Super 227; 389 A 2d 507 (1978);

State v Malbeck, 15 Wash App 871; 552 P2d 1092 (1976);

United States vy Thomas, supra, United States vy Wilkerson, 598

F2d 621 (CACD, 1978); United States v Rainone, 586 F2d

1132 (CA 7, 1978), cert den 440 US 980; 60 L Ed 2d 239; 99

S Ct 1781 (1979).

In this case, as in other cases where the circumstances in

a traffic stop escalate to support a reasonable suspicion by the

investigating police that a situation is potentially dangerous

to them or to others, the rationale of Terry—the protection of

the investigating officer and others nearby—permits the officer

to make a frisk of the automobile, limited to what is minimally

necessary to uncover weapons to which the suspect will have

easy access.

“An officer ‘need not defer protection measures to the

point of peril. All the law requires is that he have rea-

sonable basis for believing that his safety or the safety of

others requires a search or seizure.”

United States v Green, 465 F2d 620, 623-624 (CADC,

1972).

ax 17 ax

Accord, United States y Wilkerson, supra; Commonwealth vy

Almeida, supra; United States v Rainone, supra; State v Gil-

christ, 299 NW2d 913 (Minn, 1981); State v Luxem, 324

NW2d 273 (32 CrL 2041, September 8, 1982) [citing and

distinguishing People v Long, 413 Mich 461; 320 NW2d 866;

(1982) }.

The deputy flipped up the armrest to look for more weapons.

He saw the pouch and the plastic baggie sticking out of it

containing marijuana. The seizure of the marijuana in the

process of checking for more weapons was a happenstance,

not a violation of the Fourth Amendment. See Williams v

State, 19 Md App 204, 213; 310 A2d 593 (1973). The scope of

the intrusion here was “reasonably designed to discover guns,

knives, clubs, or other hidden instruments for the assault of

the police officer.” Terry, supra, 392 US at 29.

In Terry stops involving automobiles, it has been held that

once a defendant leaves the automobile, the defendant has no

access to weapons in the car, thereby posing no danger to the

investigating police. Canal Zone v Bender, 573 F2d 1329

(CA 5, 1978).

Canal Zone, supra, does not address the very real danger

to the police when suspects who are outside the car are per-

mitted to re-enter the car, while the police are still investigat-

ing the encounter with the suspect, or where the suspects are

not detained or arrested but are released to re-enter their car

and drive away. In such instances where danger to the in-

vestigating police exists (one weapon seen in defendant's car,

another possible weapon exists under the armrest) and where

defendant has not yet been arrested (and may not be), the

courts, dealing with this issue, have upheld a reasonable pro-

tective frisk of the car interior. United States v Powless, 546

F2d 792 (CA 8, 1977), cert den, 430 US 910; 97 S Ct 1185;

51 L Ed 2d 588 (1977); United States vy Wilkerson, supra;

a_

United States v Rainone, (cert den) supra; State v Gilchrist,

supra; Commonwealth v Almeida, supra; Uptegraft v State,

621 P2d 5 ( Alaska, 1980); United States v Green, supra; United

States v Thomas, supra; State v Brown, supra; State v Darling,

supra; Brown v State, supra.

Petitioner urges the court to permit a protective frisk of

that part of defendant's car reasonably accessible to defendant

when he seeks to re-enter the vehicle to obtain needed identifi-

cation in circumstances such as this case where the investigation

by the police is still ongoing, and the police reasonably fear

for their safety.

The Michigan Supreme Court construued Terry v Ohio too

narrowly, by not giving full effect to the Terry rationale—the

protection of police officers validly investigating a suspicious

driver of an automobile immobilized after a high speed pursuit,

under circumstances indicating some peril to the officers or

defendant.

Il.

THE SEIZU1. OF 75 POUNDS OF MARIJUANA FROM

THE TRUNK OF DEFENDANT'S IMPOUNDED CAR

FOLLOWING HIS ARREST DID NOT VIOLATE SOUTH

DAKOTA V OPPERMAN AND WAS NOT THE “FRUIT”

OF THE ILLEGAL ARMREST SEARCH PER WONG

SUN V UNITED STATES. ae

The validity of the armrest search and the subsequent trunk

search following defendant's arrest was raised by argument

during defendant's preliminary examination on September 22,

1977, (J.A. 16a-18a). The district judge’s written opinion of

December 28, 1977, upheld the armrest search as a proper

protective search and the trunk search as a valid inventory

— 19 —

search and as a search incident to defendant's valid arrest.

Defendant filed a pretrial motion to suppress and to quash

based on the invalidity of the searches; this motion was denied

by the circuit judge at the April 28, 1979, pretrial hearing. The

circuit judge, on independent review, found the armrest and

trunk searches reasonable as valid protection and proper in-

ventory. Defendant again raised the search issue during trial

by a motion to reconsider the denial of suppression (J.A. 70a-

72a) and the trial judge denied reconsideration as unwarranted,

holding both searches reasonable and distinguishable from

the state and federal cases cited by defendant (J.A. 73a-74a).

Towards the close of the prosecution's case, defendant again

sought exclusion of the tendered marijuana sample-exhibits

as the fruit of the unreasonable auto searches (J.A. 122a-123a).

After argument, the trial judge again ruled the auto searches

were valid protection and proper inventory (J.A. 124a).

Defendant was convicted of possession of marijuana [MCL

333.7403(2) (d); MSA 14.15(7403) (b)(4)], and the Michigan

Court of Appeals, 94 Mich App 338; 288 NW2d 629 (1979)

affirmed the conviction, holding both the armrest search valid

under Terry v Ohio, 392 US 1; 88 S$ Ct 1868; 20 L Ed 2d 889

(1968), and the inventory trunk search valid under South

Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d

1000 (1976) and the US Const, Am IV, The Michigan Supreme

Court reversed citing US Const, Am IV and Mich Const

1963, art 1, § 11, and holding that Terry, supra did not au-

thorize a protective search of an area, and that the trunk search

was an illegal “fruit” of an invalid arrest per Wong Sun v

United States, 371 US 471, 88 S Ct 407; 9 L Ed 2d 441 (1963),

The dissenting chief justice would affirm the armrest search

as proper protection, and the trunk search as proper inventory.

Another justice, partially dissenting, would affirm the armrest

search as proper protection, but would reverse the inventory

trunk search as invalid.

Thus, the validity of the inventory search was never reached

by the Michigan Supreme Court majority. One partially dis-

senting justice did find the inventory search invalid, as factually

from South Dakota v Opperman. This justice

believed that the impounded car was searched without any

inventory search procedures having been established by the

Barry County Sheriffs Department, and because a warrantless

inventory search was unnecessary, given the secure police park-

ing lot situation in this case.

Petitioner believes that South Dakota v Opperman does

“point the way to the correct resolution of this case.” South

Dakota v Opperman, supra, 428 US at 375. In South Dakota

v Opperman, the police properly impounded the unoccupied

vehicle for parking violations and saw personal effects in the

car, from outside the car. Opperman’s locked car was unlocked

“at the officer's direction.” The officer entered the car, opened

United States Supreme Court majority, citing several cases

including Cady v Dombrowski, 413 US 433; 93 S Ct 2523; 37

L Ed 2d 706 (1973); Chambers v Maroney, 399 US 42; 90 § Ct

1975; 26 L Ed 2d 419 (1970) reh den 400 US 856; Cooper v

California, 386 US 58; 87 S Ct 788; 17 L Ed 2d 730 (1967);

and Harris v United States, 390 US 234; 88 S Ct 992; 19 L Ed

2d 1067 (1968), reasoned:

“The decisions of this Court point unmistakably to the

conclusion reached by both federal and state courts that

inventories pursuant to standard police procedures are

reasonable. In the first such case, Mr. Justice Black made

plain the nature of .ue inquiry before us:

““But the question here is not whether the search was

authorized by state law. The question is a rather

whether the search was reasonable under the Fourth

Amendment.’ Cooper v California, 386 US, at 61, 17

L Ed 2d 730, 87 S Ct 788 (emphasis added )

e-

“And, in his last writing on the Fourth Amendment, Mr.

Justice Black said:

“[T)he Fourth Amendment does not require that every

search be made pursuant to a warrant. It prohibts only

“unreasonable searches and seizures.” The relevant test

is not the reasonableness of the opportunity to procure

a warrant, but the reasonableness of the seizure under

all the circumstances. The test of reasonableness cannot

be fixed by per se rules; each case must be decided on

its own facts.’ Coolidge vy New Hampshire, 403 US, at

509-510, 29 L Ed 2d 564, 91 S Ct 2022 (concurring and

dissenting ) (emphasis added ).”

South Dakota vy Opperman, supra, 428 US at 372-373.

This Court in Opperman rejected the notion that inventory

searches applied only to non-criminal settings, noting that in

Cooper v California, the inventory search occurred “in a dis-

tinctly criminal setting” (428 US at 373), and that “probable

cause to search for contraband in the vehicle had not been

established” (428 US at 373).

The Court in Opperman also recalled its earlier holding in

Cady v Dombrowski where the inventory search of the im-

pounded car belonging to an off-duty police officer was made

based on the “reasonable grounds to believe a weapon might

be in the car.” There, the inventory search “was incident to

the caretaking function of the local police to protect the com-

munity’s safety.” 428 US at 374. The United States Supreme

Court found that the Cady inventory search was protective and

carried out in accordance with standard procedures in the

local police department. Significantly, the United States Su-

preme Court in Opperman characterized the standard pro-

cedures rationale in Cady as:

“. . . a factor tending to ensure that the intrusion would

be limited in scope to the extent necessary to carry out

the caretaking function.”

South Dakota v Opperman, supra, 428 US at 375

Although a standard departmental procedure for inventory

searches did exist in Opperman, the United States Supreme

Court in Opperman put the “standard procedure” rationale of

Cady into proper perspective by saying:

“As in Cady, there is no suggestion whatever that this

standard procedure, essentially like that followed

throughout the country, was a pretext concealing an in-

vestigatory police motive.f [10]

On this record we conclude that in following standard

police procedures, prevailing throughout the country and

approved by the overwhelming majority of courts, the

conduct of the police was not ‘unreasonable’ under the

Fourth Amendment.”

fm [10]

The inventory was not unreasonable in scope. Respondent's motion to

suppress in state court challenged the inventory only as to items inside

the car not in plain view. But once the policeman was lawfully inside

the car to secure the personal property in plain view, it was not unreason-

able to open the unlocked glove compartment, to which vandals would

have had ready and unobstructed access once inside the car.

The “consent” theory advanced by the dissent rests on the assumption

that the inventory is exclusively for the protection of the car owner. It is

not. The protection of the municipality and public officers from claims

of lost or stolen property and the protection of the public from vandals

who might find a firearm, Cady v Dombrowski, or as here, contraband

drugs, are also crucial.

South Dakota vy Opperman, 428 US at 376

Here, defendant was validly stopped. With one weapon al-

ready seen in his car, the front seat of defendant's car was

protectively frisked for more weapons. He was arrested for

possession of marijuana seized from his car in the course of

searching for other weapons. His car was impounded, then

inventoried. The inventory search consisted of lifting the trunk

lid. The trunk lid had no lock. Surely, lifting an unlockable

trunk lid of a validly impounded car comported with “stan-

dard police procedures, prevailing throughout the country and

approved by the overwhelming majority of courts.” (See 428

US at 376 quoted above).

Court approval of the “standard police procedure” used here

(raising an unlockable trunk lid of a validly impounded car)

did occur since the district court, the circuit court, and the

Court of Appeals affirmed the inventory search of defendant's

trunk as being valid and the Michigan Supreme Court majority

never addressed the validity of the inventory search of de-

fendant’s trunk.

Given these circumstances (the driver and the sole occupant

was speeding and jammed his car into a roadside ditch, the

deputies had pursued the speeding car, the driver had a knife

and lacked proper identification, the driver appeared dis-

oriented, the driver was arrested for possessing contraband

in his car, the car was impounded, the driver had no trunk

key and the trunk lid had no lock), the raising of the trunk

lid was a reasonable intrusion, limited to the extent necessary

for any inventory search, i.e., to protect the police from danger

[Cooper v California, 386 US 58; 87 S Ct 788; 17 L Ed 2d 730

(1967)], to protect defendant's property [Harris v United

States, 390 US 234; 88 S Ct 992; 19 L Ed 2d 1067 (1968) ], and

to protect the public [Cady v Dombrowski, 413 US 433; 93

S Ct 2523; 37 L Ed 2d 706 (1973)).

Defendant argued below that the trunk search was an invalid

inventory search, and occurred without probable cause. Argu-

ably, the trunk search was based on probable cause which the

United States Supreme Court may find “self-evident” in this

case as it did in Colorado v Bannister, 449 US 1; 101 S Ct 42;

66 L Ed 2d 1 (1980). The limited frisk of the car leading to

defendant's probable cause arrest for possession of marijuana

seized from inside the car could justify the deputy’s belief that

he could search the entire car including the trunk for more

contraband. United States v Ross; supra; and Michigan v

Thomas, supra.

In Ross, supra, the scope of the warrant exception established

in Carroll vy United States permitting a warrantless vehicle

search based on probable cause, also included the search of

the car trunk. This Court said:

“Moreover, the probable cause determination must be

based on objective facts that could justify the issurance

of a warrant by a magistrate and not merely on the subjec-

tive good faith of the police officers. ‘““[A]s we have

seen, good faith is not enough to constitute probable cause.

That faith must be grounded on facts within knowledge

of the [officer], which in the judgment of the court would

make his faith reasonable.”’ Id., at 161-162 (quoting

Director General v. Kastenbaum, 263 U.S. 25, 28)fm (10)

“After reviewing the relevant authorities at some length, the Court

concluded that the probable cause requirement was satisfied in the case

before it. The Court held that ‘the facts and circumstances within [the

officers’] knowledge and of which they had reasonably trustworthy in-

formation were sufficient in themselves to warrant a man of reasonable

caution in the belief that intoxicating liquor was being transported in

the automobile which they stopped and searched.’ Id., at 162. Cf. Brine-

gar v. United States, 338 U.S. 160, 176-177; Henry v. United States,

361 U.S. 98, 102.”

“In short, the exception to the warrant requirement

established in Carroll—the scope of which we consider in

this case—applies only to searches of vehicles that are sup-

ported by probable cause. In this class of cases, a search

is not unreasonable if based on facts that would justify the

issuance of a warrant, even though a warrant has not

actually been obtained.

United States v Ross, 31 CrL 3054 (Footnotes 11 & 12

omitted )

and further:

“The exception recognized in Carroll is unquestionably

one that is ‘specifically established and well-delineated.’

We hold that the scope of the warrantless search au-

thorized by that exception is no broader and no narrower

than a magistrate could legitimately authorize by war-

rant. If probable cause justifies the search of a lawfully

stopped vehicle, it justifies the search of every part of the

vehicle and its contents that may conceal the object of

the search.”

United States v Ross, 31 CrL. 3058 (emphasis added )

In Michigan v Thomas, supra, this Court summarily reversed

a Michigan Court of Appeals decision. In Thomas, the state

appeals court held that the proper!y impounded vehicle (fol-

lowing defendant's arrest for open intoxicants in the car) was

subjected to an inventory search that was “unreasonable in

scope” ’’ and further, that the subsequent search of the vehicle

air vents, after finding marijuana in the unlocked glove com-

during the inventory search, was invalid as being

without “exigent circumstances”. (31 CrL 4104). This Court

succinctly held:

“We reverse. In Chambers v. Maroney, 399 U.S. 423

(1970), we held that when police officers have probable

cause to believe there is contraband inside an automobile

that has been stopped on the road, the officers may con-

duct a warrantless search of the vehicle, even after it has

been impounded and is in police custody. We firmly

reiterated this holding in Texas v. White, 423 U.S. 67

(1975). See also United States v. Ross, ...., US. ....,

..., mn. 9 (1982). It is thus clear that the justification to

conduct such a warrantless search does not vanish once

the car has been immobilized; nor does it depend upon

a reviewing court's assessment of the likelihood in each

particular case that the car would have been driven away,

or that its contents would have been tampered with, dur-

ing the period required for the police to obtain a warrant.

See id.

“Here, the Court of Appeals recognized that the officers

were justified in conducting an inventory search of the

discovery of contraband. Without attempting to refute

the State’s contention that this discovery gave the officers

probable cause to believe there was contraband elsewhere

in the vehicle, the Court of Appeals held that the absence

of ‘exigent circumstances’ precluded a warrantless search.

This holding is plainly inconsistent with our decisions in

Chambers and Texas v White.

The petition for certiorari and the motion of respondent

to proceed in forma pauperis are granted, the judgment of

the Michigan Court of Appeals is reversed, and the case

is remanded to that court for further proceedings not in-

consistent with this opinion. It is so ordered.”

Michigan v Thomas, 31 CrL 4104

tan

In this case, even without the initial armrest frisk,{5] the

valid impoundment and the cusory inventory search of the

ditched carl4] was within the scope of the inventory search in

Michigan v Thomas. Such an inventory search would have

disclosed the marijuana under the armrest and in the trunk,

per Michigan v Thomas. In this case, if the armrest marijuana

was validly seized, the armrest marijuana here (like the glove-

box marijuana in Michigan v Thomas) supplied probable

cause for the trunk search here (like the air vent search in

Michigan v Thomas).

The arrest of defendant for possessing marijuana in the car

and the impoundment of his car were valid, and the search of

defendant's car trunk whether on probable cause, or as a valid

protective and caretaking inventory search, was appropriate.

CONCLUSION

Petitioner asks this Court to reverse the judgment of the

Michigan Supreme Court in People v Long, 413 Mich 461; 320

NW2d 886 (1982) for the reasons given above. Petitioner sub-

mits that the “armrest” frisk comported with the scope of the

Terry v Ohio “stop and frisk” rationale, and that the inventory

search of the car trunk was reasonable under the Fourth

Amendment.

[3]

Conceivably, defendant could have been arrested in 1977 for speeding

[a misdemeanor per MCL 257.628(d); MSA 9.2328(4)], lack of proper

vehicle identification (a possible misdemeanor per MCL 257.215; MSA

9.1915, and MCL 257.223; MSA 9.1923), driving while intoxicated (per

MCL 257.625; MSA 9.2325), or reckless driving (a misdemeanor per

MCL 257.626; MSA 9.2326).

(4)

Cf., South Dakota vy Opperman, 428 US 364, 368-369; 96 S Ct 3092;

49 L Ed 2d 1000 (1976).