Respondents Brief — Michigan v. Long
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me Court, U.S.
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SUPREME COURT OF THE
UNITED STATES
October Term, 1982
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THe PEOPLE OF THE STATE OF MICHIGAN
Petitioner
vs.
Davip Kerk LONG
Respondent
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF MICHIGAN
BRIEF OF RESPONDENT
James H. Geary
Lrrrie & Geary
Business Address:
107 West Michigan-Suite 301
Kalamazoo, Michigan 49007
Telephone: (616) 344-1575
Counsel of Record for Respondent
Joseph J. Jerkins
Viacuos, Jenkins & Hur.ey
Business Address:
729 Academy Street
Kalamazoo, Michigan 49007
Telephone: (616) 381-6646
‘ me WasT Your STunET, DOMRONT. AECHIOAN ens — OU sam. |
QUESTIONS PRESENTED
I. Whether the Michigan Supreme Court correctly de-
cided that a warrantless search of a traffic violator’s car
violated the state and federal Constitutions.
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.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ..............-.200005 i
TABLE OF CONTENTS ..............00-0eee0005 ii
INDEX OF AUTHORITIES ..............00-5+005: iv
STATEMENT OF FACTS.............0-00eeeeeeee 1
SUMMARY OF ARGUMENT .................+++- 3
GERRIMIEE cc ccccasacacccccccscvcescosececcccecs 5
I. THE “STOP AND FRISK’’ EXCEPTION TO
THE WARRANT REQUIREMENT SHOULD
NOT BE EXTENDED ..................55005: 5
A. The “‘stop and frisk’’ exception to the warrant
requirement should not be extended as a mat-
tar GF GUmeTEl BOTS 22. cccccccccccccccccccs 5
1. Exceptions to the warrant requirement are
SE SE eceracccedscecécqeduccoasess 5
2. Terry searches are limited in scope ...... 6
3. The Belton rationale does not apply to
By GED on ke dcdwacdedececeesescese 7
4. Expansion of Terry will yield anomolous
GE iheidinkss desmkeh Geewesbsseseccous 9
5. The dangers of police work do not justify
judicial repeal of the Fourth Amendment. 10
6. There is a significant privacy interest in
TEE RSS OS BO a aera es 11
7. An automobile search is a serious intrusion
on personal privacy ...........ccceeceees 13
B. This case presents no reason for extension of
the *‘stop and frisk’’ exception to the warrant
requirement to automobiles near detainees... 14
1. Frisking Long was not justified under Terry 14
TABLE OF CONTENTS—Cont’d)
2. The presence of a potentialy dangerous, but
legal, object in a car does not justify a
ES QD oo on wccdusdeudecusseéteceses
3. Cases which have permitted protective
searches of automobiles are distinguishable
4. The search for weapons was a pretext ...
li. THE SEARCH OF THE TRUNK WAS NOT A
BONA FIDE INVENTORY SEARCH .........
A. The propriety of the trunk search involves
controlling issues of state law ..............
B. The trunk search was not an inventory search
C. A lawful inventory can only follow a lawful
PEE cieccenkebs 6uustScakécetseoccesé
lil. THE DECISION BELOW IS SUPPORTED BY
AN ADEQUATE STATE GROUND...........
EPUMEMPEEEES cuvccevecccvcccndecectoncccsccccces
21
21
iv
INDEX OF AUTHORITIES
Cases: Page
Almeida-Sanchez v US, 413 US 266 (1973) ......... 11
Arkansas v Sanders, 442 US 753 (1979) .......... 6, 12
Bartkus vy Illinois, 395 US 121 (1959) ...........005: 28
Bowers v People, 617 P2d 560 (Colo., 1980) ........ 17
Brown v State, 358 So2d 5% (Fla. Dist. Ct. App.,
ENE cevnccepuccccecéeudenenpeécacateéchunsebeces 19
Cady v Dombrowski, 413 US 433 (1973) ......... 12, 24
California v Krivda, 409 US 33 (1972)..........+4.- 29
Canal Zone v Bender, 573 F2d 1329 (Sth Cir.
SEED idvccedecesée cdséccsddacededecdesntedual 19, 20
Cardwell v Lewis, 417 US 583 (1974) .........0005- 12
Carroll v US, 267 US 132 (1925) ...........0eeeeee 11
City of Portland v Poindexier, 590 P2d 781 (Or. Ct.
Rad. TURD occccccccedcccccccssanccccveccoussevt 19
Commonwealth v Almeida, 366 NE2d 756 (Mass.,
FIVER 6c vdncccecccckocesecetesed ceeebeecetabeebes 19
Coolidge v New Hampshire, 403 US 443
(IDTE) on ccccccccccccccccccccccconccsece 6, 10, 12, 13
Delaware v Prouse, 440 US 648 (1979) ....... 11, 27, 29
Dunaway v New York, 442 US 200 (1979) ........ 6, 18
Dwelley v Tom McDonnell, Inc, 334 Mich 229; 54
PORTE SEE OED 4:0 cocecacuteepWdvation vecesanees 21
Ford v Howard, 59 MichApp 548; 229 NW2d 841
GITED nccccnnedenspdadenedeceipamnanes ceeneenaen 21
Fox v State, 556 P2d 1281 (Ok. 1976).............. 17
Fox Film Corp v Muller, 296 US 207 (1935)........ 27
Johnson v State, 409 NE2d 699 (Ind. Ct. App. 1980) 17
Jones v US, 357 US 493 (1958) ............0 eee eeee 6
Jones v US, 362 US 257 (1960) ...............0 00s 28
Katz v US, 389 US 347 (1967) .... 0... ccc ceeeeees 5
-
INDEX OF AUTHORITIES—(Cont’d)
Cases: Page
Louisiana v Greenwald, 369 So2d 1317 (1979).... 18, 19
Maine v Darling, 393 A2d 530 (1978) .............. 1
Michigan v Summers, 452 US 692 (1981) ......... 6, 10
Mincey v Arizona, 437 US 385 (1978) .............. 5
New York v Belton, 453 US 454 (1981)....... 3, 7, 8,9
Pennsylvania v Mimms, 434 US 106 (1977) ......... 10
People v Beavers, 393 Mich 554; 227 NW2d S11, cert
ee GE Gy GT SEED écceccccesedeeeccecoosccee 28
People v Buford, 69 MichApp 27; 244 NW2d 351 (1976) 17
People v Cavitt, 86 MichApp 59; 272 NW2d 196 (1978),
Iv den 406 Mich 945 (1979) .............660cc eee 22
People v Chernowas, 111 MichApp 1; 314 NW2d 505
DE dhbcetodesbooccevde seceétbebeberee cocesecs
28
People v Cooper, 398 Mich 450; 247 NW2d 866 (1976) 28
People v Dixon, 392 Mich 691; 222 NW2d 749 (1974) 22
People v Garcia, 81 MichApp 260; 265 NW2d 115
DT sbbbescundsdabddbendbdedchsscetceveccecses 22
People v Goolsby, 284 Mich 375; 279 NW2d 867 (1938) 18
People v Hilber, 403 Mich 312; 269 NW2d 159 (1978) 22
People v Iverson, 34 MichApp 519; 191 NW2d 745
SE Saddowséncusdedtedecdsvecstbcedoncoccedoes 17
People v Lee, 371 Mich 563; 124 NW2d 736 (1963). 19
People v Lolley, 113 Mich App 567; 317 NW2d 342; Iv
den 413 Mich 919 (1982) ...........ccceeeeeeeees 22
People v Long, 94 MichApp 338; 288 NW2d 629 (1979) 2
People v Long, 413 Mich 461; 320 NW2d 866
ST éceeuetensedesecebetscccocencesece 1, 2, 3, 27
People v Marshall, 25 MichApp 376; 181 NW2d 578
DE dictdicubbecdadevedateaveoeseedecocceccoss 22
People v Martin, 368 NYS2d 342 (NY App. Div. 1975) 23
vi
INDEX OF AUTHORITIES—{Cont’d)
Cases: Page
People v Nabers, 103 MichApp 354; 303 NW2d 205,
rev'd on other grounds 411 Mich 1046; 309 NW2d
See Wee abbbslaonkabedptiansceisiossetbeseectnc 28
People v Nelson Pitts, 40 MichApp 567; 199 NW2d
271, lv den 388 Mich 791 (1972) ..........--..--. 19
People v Ridgeway, 74 MichApp 306; 253 NW2d 743;
lv den 401 Mich 831 (1977) .........ccccccceccces 19
People v Russell, 139 P2d 661 (Cal. Ct. App., 1943) 17
People v Secrest, 413 Mich 521; 321 NW2d 368 (1982) 27
People v 7th District Judge, 55 MichApp 471; 222
See See GE. cncocesedcenescudeouescencses 19, 22
People v Shaffran, 243 Mich 527; 220 NW 716 (1928) 17
People v Smith, 118 MichApp 366; 325 NW2d 429
| PPPPPOTTTTTTTTTTITTITTTTTTrirrrrrrTrTTeeee 28
People v Spagnola, 260 NE2d 20 (Ill. App. Ct. 1970) 17
People v Turner, 390 Mich 7; 210 NW2d 336 (1973) 28
People v Wallach, 110 MichApp 37; 312 NW2d 387
SE nceccdeascedbandbesdnabdavecteokoandéedoes 28
People v Zeigler, 358 Mich 355; 100 NW2d 456 (1960) 19
Robbins v California, 453 US 420 (1981) ........... 9
Sibron v New York, 392 US 40 (1968) ........... 14, 20
South Dakota v Opperman, 428 US 364
EE caswdcccccsdéévéadéssaseddee 2, 4, 12, 24, 26-27
State v Bales, 552 P2d 688 (Wash Ct. App. 1976) .. 26
State v Belfiglio, 134 SW 508 (Mo. I911)........... 17
State v Brown, 389 A2d 507 (NJ Super. Ct. Law Div.
i iskdlliecs scoceodiscenoesatecestdsuawsnadess 19
State v Bustamonte, 593 P2d 659 (Ariz., 1979)...... 17
State v Gannaway, 191 NW2d 555 (Minn., 1971).... 19
State v Gilchrist, 299 NW2d 913 (Minn., 1981) ..... 19
State v Hardman, 567 P2d 238 (Wash. Ct. App. 1977) 26
vii
INDEX OF AUTHORITIES—{Cont’d)
Cases: Page
State v Lawson, 227 SW2d 642 (Mo., 1950) ........ 17
State v Leak, 306 So2d 737 (La., 1975) ............ 17
State v McDaniel, 383 A2d 1174 (NJ Super. Ct. App.
tt Mi ¢c.06 aimed cddap eben debbendined 24
State v McDougal, 228 NW2d 671 (Wis., 1975) ..... 25
State v Opperman, 247 NW2d 673 (SD, i976) ...... 27
State v Slockbower, 397 A2d 1050 (NJ, 1979)....... 26
Terry v Ohio, 392 US 1 (1968).................. passim
Tyler v US, 302 A2d 748 (DC, 1973)............... 19
US v Borelli, 336 F2d 376 (2d Cir. 1964), cert den 379
DLC -cGitintcadcéabadeounsass eeddusonse 7
US v Chadwick, 433 US 1 (1977) .................. 25
US v Green, 456 F2d 620 (DC, 1972) .............. 19
US v Powless, 546 F2d 792 (8th Cir.), cert den 430 US
DN tndachadksendgedbekedbuidebdseunect 18, 19
US v Rainone, 586 F2d 1132 (7th Cir. 1978), cert den
ED ntavennsdvadhoatvedénetesasd 18, 20
US v Ross, 102 S Ct 2157 (1982) ......... 7, 12, 20, 21
US v Russell, 411 US 423 (1973) ..............4... 28
US v Salvucci, 448 US 83 (1980) .................. 28
US v Thomas, 314 A2d 464 (DC, 1974) ............ 19
US v White, 401 US 745 (1971)...............2.4... 28
Uptegraft v State, 621 P2d 5 (Ala., 1980) .......... 19
Vale v Louisiana, 399 US 30 (1970)............... 6, 10
Williams v State, 310 A2d 593 (Md. Ct. Spec. App..,
Tt dsdiidn)dcekbccabnesdeablaneateeevoetokien 19
Wong Sun v US, 371 US 471 (1963) ............... 3
Ybarra v Illinois, 444 US 85 (1979) ............ 6, 7, 10
eee
INDEX OF AUTHORITIES—(Cont’d)
Miscellaneous: Page
Cardozo, Nature of Judicial Process, p. 5i ......... 7
Kamisar, Y. Recent Developments in Constitutional-
Criminal Procedure, Michigan Institute of Continuing
Legal Education, p. 9 (1982)...............00000: 12
Knife Know-How, Mother Earth News, July/August, at
i ccknehinsatdndedhaahaltecebesesesesbecedcecée 17
3 W. LaFave, Search and Seizure, §9.4 .......... 8, 14
BECRA F57.Tars BEBA DOE oo ccccccccccccccccccccs 22
MCLA 333.7107; MSA 14.15(7107) ................. 27
MCLA 750.227; MSA 28.424 ..........00cceeceeeees 17
Michigan Constitution, art 1, §11..............6605. 27
Murphy, B., A Bus..r of a Folding Knife, Mechanic's
Illustrated, November, 1980, at 86 ............... 17
Norman, G., Blue-Chip Blades, Esquire, August, 1980,
DES shncccccdedascccscnccoccscencssecosesceseces 17
Petzel, D., Once Again, I * XL, Mechanic's Illus-
ee, Ce, Gets GE DE nc cccccuccscdcocvcives 17
U.S. Constitution, Fourth Amendment .......... passim
STATEMENT OF FACTS
On August 25, 1977, two Barry County, Michigan,
Sheriff's deputies pursued a speeding car, without activating
their siren or emergency lights (i0a-iia, 2ia-23a, 75a-77a,
90a). The car soon swerved and stopped with its front in a
shallow ditch, its back on the roadway and its passenger's
side toward the deputies (10a-lla, 77a-78a, 90a-9la, 108a-
110a). When the deputies activated their emergency lights,
David Long, the car’s only occupant, left the driver's seat
and met the deputies by the trusk (lla-i2a, 24a, 47a,
78a-79a, 90a-9la). Long appeared unsteady, disoriented and
“‘under the influence of something”’ (25a-26a, 119a), but he
was cooperative at all times (24a-25a, 120a). He produced
his driver's license after being asked for it twice (lla,
47a-48a, 79a).
Long was asked twice for the car’s registration and
proof of insurance. Without speaking, he walked toward the
open driver's door (lla, 48a, 79a). The deputies then re-
trieved a large, closed folding knife, one of many tools on
the floor of the “‘messy”’ car (12a-13a, 26a-27a, 49a, 80a,
92a, 110-I1lla, 120a). No claim was made that the “‘buck”
knife was contraband. Long was not charged with a
weapons offense (43a, 97a; People v Long, 413 Mich 461,
469 n.1; 320 NW2d 866, 868 n.1 (1982). Long was frisked
after the knife was seized. Although no weapons were
found (12a-13a, 29a, 49a, 104a, I1la-112a), one of the de-
puties then held him while the other searched the interior of
the car, ostensibly for weapons (12a-13a, 33a). The car's
papers may have been found at this time (Sia-52a). The
deputies said they searched the interior of the car for
weapons because they were going to permit Long to get in
to retrieve the registration (35a), which they thought was in
the glove box (4la). They acknowledged that no search
would have been needed if they had asked Long where the
registration was and retrieved it themselves (41a).
Although a hammer and screwdriver were among the
tools scattered about the car (26a, 92a, 120a), the search for
2
weapons was concentrated on a leather object protruding
slightly from beneath a folded-down armrest (13a, 8la-82a,
93a-94a, 121a). Deputy Howell lifted the armrest and re-
moved a leather, pocket-sized wallet. He removed the wal-
let from the car and opened it, taking out a plastic bag
containing marijuana (13a, 8la, 84a, 94a, 97a, 112a, 1 14a).
Long was arrested for possession of marijuana (14a,
84a). (He was later given a ticket for speeding which was
eventually rescinded (42a-43a, 97a).) Deputy Howell then
searched the car for other contraband (l4a, 85a-86a). Long
did not have a key to the trunk, so one deputy forced the
keyless latch with his pocket knife. He found 75 pounds of
marijuana (l4a-l6a, 19a-20a, 39a-40a, 85a-87a, 89a).
Deputy Howell searched the trunk looking for con-
traband and because he had a personal policy of checking
for valuables in cars he intended to impound. He testified
‘“‘we do not have an inventory search’’ in the Sheriff's
Department (15a-17a).
The car was towed to the Sheriff's garage where it was
left overnight with the marijuana in it (20a, 53a, 87a-88a,
116a-118a). No written inventory was produced at trial and
the deputies could not testify precisely about the car's
contents (27a, 92a, 120a).
Long moved to supress the marijuana found in the
searches of the car. The prosecution never tried to justify
these searches as ‘probable cause"’ or ‘‘incident to arrest”’
searches. People v Long, 413 Mich 461, 472, 481 n.2; 320
NW2d 866, 869-70, 873 n.2 (1982). It claimed the initial
search of the vehicle was a protective search under Terry v
Ohio, 392 US 1 (1968), and that the trunk search was an
inventory search under South Dakota v Opperman, 428 US
364 (1976).
Long was convicted of possession of marijuana and
appealed. His conviction was affirmed by the Michigan
Court of Appeals. People v Long, 94 MichApp 338; 288
NW2d 629 (1979). The Michigan Supreme Court reversed,
3
saying the case did not come within the narrowly-drawn
exceptions to the warrant requirements of the state and
federal constitutions. People v Long, 413 Mich 461; 320
NW2d 866 (1982). Since the trunk search was made be-
cause of evidence found in the search of the car's interior,
the evidence found in the trunk was suppressed as ‘‘fruit of
the poisonous tree."" Wong Sun v US, 371 US 471 (1963).
SUMMARY OF ARGUMENT
The limited, narrowly-construed exceptions to the
Fourth Amendment's warrant requirement should not be
expanded. There is no sound reason of public policy that
would justify extending the rule of New York v Belton, 453
US 454 (1981) to protective searches. The reasons for
permitting an extensive post-arrest search of the vicinity of
a criminal defendant are not present in traffic stops or brief
detentions on less than probable cause.
Expansion of Terry v Ohio, 392 US 1 (1968) would
result in the scope of protective searches being broader
than searches made incident to arrest. Expansion of the
protective search rationale is not justified by the dangers of
police work. The privacy interest in automobiles 1s signific-
ant and the Fourth Amendment's protections of au-
tomobiles ought not to be abandoned, or further diluted.
No compelling circumstance made the warrantless
searches on less than probable cause necessary in this case.
They were not valid Terry searches because Long had not
given the deputies reason to believe that he was a danger to
them. He was cooperative and not belligerent, aggressive or
threatening in word or gesture.
A potentially dangerous, but ordinarily innocent, object
in the vicinity of investigating officers is not alone reason to
believe that a traffic violator nearby is dangerous. Many
objects that can be lawfully possessed and are ordinarily
present in automobiles could be used to injure investigating
4
officers. Extension of Terry to permit searches when those
objects are present would, as a practical matter, make
every traffic violator or Terry detainee in the vicinity of a
car, subject to a search of his automobile without probable
cause.
Cases cited by Petitioner and Amici in which protective
searches of automobiles were upheld are distinguishable,
either because the investigating officers in those cases had
ample reason to believe the parties they were investigating
were connected with a violent crime or because the defen-
dants had been observed in the act of concealing objects in
automobiles.
The “‘protective’’ search of Long’s car was a pretext for
a search for evidence. The deputies never testified they
were in fear of bodily harm from Long, or that he had done
anything to indicate that he presented a danger to them.
They ignored a hammer, a screwdriver and other objecis in
the car which could have been used to injure them, while
closely scrutinizing a billfold-sized leather object under an
armrest on the front seat. At the time of their search, both
deputies were between Long and the door. They would not
have permitted him to gain re-entry to the car.
The Michigan Supreme Court never reached the ques-
tion of whether the trunk search was a lawful inventory
search. Under Michigan law, other possible justifications
for the search could not have been raised in the Supreme
Court because they were not raised below. This case pre-
sents an inappropriate vehicle for the Court to determine
the issues raised here, but not reached below.
South Dakota v Opperman, 428 US 364 (1976) is inap-
posite. The Barry County Sheriffs Department had no
inventory search procedure. No written inventory was ever
prepared. The search was conducted in places other than
where valuables are usually stored. The inventorying officer
had an investigatory motive and the inventory was stopped
when contraband was found.
5
There was no need to impound the car or to inventory it
at the Sheriff's Department. Other arrangements could have
been made for its removal from the side of the roadway or
it could have been lawfully parked there. Absolutely safe
and secure storage facilities were available and there was
no reason to inventory the car because of risk of theft or
intrusion by vandals.
Certiorari was improvidently granted. The decision of
the Michigan Supreme Court rests on an adequate state law
ground. Michigan Courts have consistently imposed a
higher standard under the state constitutional provisions re-
lating to search and seizure than this Court has imposed
under the Fourth Amendment. The Court lacks jurisdiction
to hear the case.
ARGUMENT
I. THE “STOP AND FRISK’ EXCEPTION TO THE
WARRANT REQUIREMENT SHOULD NOT BE EX-
TENDED.
A. The “‘stop and frisk’’ exception to the warrant re-
quirement should not be extended as a matter of
general policy.
1. Exceptions to the warrant requirement are very
limited.
“(ijt is a cardinal principle that ‘searches conducted
outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the
Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.’ *’ Mincey v
Arizona, 437 US 385, 390 (1978), citing Katz v US, 389
US 347, 357 (1967).
“The exceptions [to the Warrant requirement] are ‘jeal-
ously and carefully drawn,’ and there must be ‘a show-
ing by those who seek exemption... that the exigen-
cies of the situation made that course imperative.’
6
‘(Tjhe burden is on those seeking the exemption to
show the need for it." ’ Coolidge v New Hampshire,
403 US 443, 455 (1971).
Narrow construction of exceptions to the Fourth
Amendment's warrant requirement is a fundamental princi-
ple of Fourth Amendment analysis. Arkansas v Sanders,
442 US 753, 759-760 (1979); Vale v Louisiana, 399 US 30,
34 (1970); Jones v US, 357 US 493, 499 (1958).
One of the most narrowly construed exceptions to the
warrant requirement has been the ‘“‘stop and frisk’’ excep-
tion of Terry v Ohio, 392 US 1 (1968).
Dunaway v New York, 442 US 200, 210 (1979) stressed
the limited holding of Terry:
‘‘Because Terry involved an exception to the general
rule requiring probable cause, this Court has been care-
ful to maintain its narrow scope.”
Ybarra v Illinois, 444 US 85, 93 (1979) said:
“The Terry case created an exception to the require-
ment or probable cause, an exception whose ‘narrow
scope’ this court ‘has been careful to maintain.” ”
2. Terry searches are limited in scope.
Dunaway v New York, 442 US 200, 210 (1979) said that
Terry:
“defined a special category of Fourth Arsendment ‘sei-
zures’ so substantially less intrusive than arrests that the
general rule requiring probable cause to make Fourth
Amendment ‘seizures’ reasonable could be replaced by
a balancing test.”
See also Michigan v Summers, 452 US 692, 697-698 (1981).
‘Nothing in Terry can be understood to allow a
generalized ‘cursory search for weapons’ or, indcecd,
7
any search whatever for anything but weapons.”’ Ybarra
v Illinois, 444 US 85, 93-94 (1979).
Against this background, Petitioner and Amici urge ex-
pansion of the Terry exception to permit police officers to
make searches similar in scope to searches incident to
arrest permissible under New York v Belton, 453 US 454
(198 1).
3. The Belton rationale does not apply to Terry
searches
The presence of this case before the Court is another
example of ‘‘the ‘tendency of a principle to expand itself to
the limit of its logic’—and perhaps beyond.’’ US v Borelli,
336 F2d 376, 380 (2d Cir. 1964), cert den 379 US 960 (1965)
(quoting Cardozo, Nature of Judicial Process, p. 51). Al-
though a search incident to arrest serves different purposes
than a Terry search, the Court is now urged to extend
Belton to stops on less than probable cause.
A search incident to arrest serves two purposes: (1) “‘to
remove any weapons that [the arrestee] might seek to use in
order to resist arrest or effect his escape’’ and (2) “to
prevent the concealment or destruction of evidence.’’ New
York v Belton, 453 US at 457.
A Terry search “‘is not justified by any need to prevent
the disappearance or destruction of evidence of crime.”
Terry v Ohio, 392 US 1, 29 (1968). Terry does not allow
‘any search whatever for anything but weapons."’ Ybarra v
Illinois, 444 US 85, 93 (1979).
In many cases an officer who has probable cause to
make a custodial arrest will also have probable cause to
believe that evidence of crime will be in a vehicle recently
occupied by the defendant. A search for that evidence
would be proper under US v Ross, 102 S Ct 2157 (1982). By
definition, probable cause is lacking where Terry is the only
justification for a warrantless search.
The need for an intense search of an arrestee for
weapons may be justification for the adoption in Belton of
what Justice Brennan correctly characterized as a fiction,
i.e.:
“that the interior of a car is always within the im-
mediate control of an arrestee who has recently been in
the car." New York v Belton, 453 US 454, 466 (1981).
(Brennan, dissenting)
The Terry search fills a different need:
“The need is only to find implements which could
readily be grasped by the suspect during the brief face-
to-face encounter, not to uncover items which are clev-
erly concealed and which could be brought out only
with considerable delay and difficulty." 3 W. LaFave,
Search and Seizure §9.4, p. 127 (1978).
A principal reason advanced for expanding Jerry to
permit car searches is that detainees will be permitted to
return to their cars after the police have determined that no
criminal activity is afoot or after a traffic citation has been
issued. The lack of motive for escape or injury to the
officer makes the hypothetical danger presented by a re-
leased Terry detainee or traffic violator seem unlikely.
“{I}f a person is stopped for running a stop sign, it
hardly seems plausible to suggest that after he is tic-
keted and returns to his car he will then seize a gun and
try to overtake the police car and shoot the officers.
And even if the stop concerned a suspicion of more
serious conduct, such as because some of the occupants
in the car were seen following a pedestrian, it does not
seem likely that the suspects would have any motive to
fire on the police if they are released from custody after
those suspicions were not confirmed...'’ 3 W.
LaFave, Search and Seizure §9.4, p. 137 (1978).
Application of the logic of New York v Belton, 453 US
454 (1981) would bring a certain summetry and simplicity to
9
search and seizure law. It is a symmetry not compelled by
the logic of the Court's decisions.
“Viewing similar facts from entirely different perspec-
tives need not lead to identical results."’ Robbins v
California, 453 US 420, 430 (1981). (Powell, concurring)
Extension of Belton to Terry searches would ignore the
absence in this case of the considerations supporting the
Belton rule while greatly restricting the privacy interests of
citizens under the Fourth Amendment.
The Court should not bring the hindquarters of the
camel into the tent simply because it let the animal get its
nose under the flap in Terry.
4. Expansion of Terry will yield anomolous results.
Extension of Terry to permit warrantless searches of
places detainees may go to after they are released would
yield anomolous results.
If the police can search a car of a suspected traffic
offender because the offender is to return to it, why should
they not also be permitted to search the house of a pedest-
rian detained under Terry on his front doorstep. After his
release, the detainee might walk through the front doorway
and obtain a pistol concealed inside the house. The statis-
tics cited to the Court by Amicus show that a significant
number of officers killed in the line of duty are shot
answering domestic disturbance calls.
If Officer McFadden had questioned Defendant Terry on
the sidewalk in front of a bar, ought he not to have been
permitted to search the bar for weapons on the theory that
Terry might go there and obtain a weapon from a compat-
riot if he was released?
If the Terry search is expanded as Petitioner urges, then
police will be able to undertake searches broader than those
permissible as searches incident to arrest. Police cannot
search the home of an arrestee taken into custody on his
10
front doorstep. Vale v Louisiana, 399 US 30, 35 (1970). The
scope of a search incident to arrest made in a house cannot
extend to the defendant's car in a driveway next to the
house. Coolidge vy New Hampshire, 403 US 443 (1971).
Ybarra v Illinois, 444 US 85, 91 (1979) held that police
cannot search occupants of a bar in the course of executing
a search warrant on the premises. Presumably they could
not search all occupants of a bar if they executed an arrest
warrant in the bar or on the sidewalk outside it.
Terry authorizes the search of a person, not the places
he has been or the places he might go to. If the Court yields
to the urgings of Petitioner and Amici to expand the excep-
tion of the warrant requirement formulated in Terry, then
the Court will have found ‘‘an exception that would swal-
low the general rule.’’ Michigan v Summers, 452 US 692,
697 (1981).
5. The dangers of police work do not justify judicial
repeal of the Fourth Amendment.
Petitioner and Amici effectively argue that police work
remains as hazardous an occupation as it has always been.
They cite distressing statistics demonstrating the hazards
peace officers face in their contacts with the public, includ-
ing their contacts with traffic law violators. However, it is
one thing to decline ‘‘to accept the argument that traffic
violations necessarily involve less danger to officers than
other types of confrontations,’’ Pennsylvania vy Mimms, 434
US 106, 110 (1977). It is quite another thing to accept the
argument that Fourth Amendment protections should be
further diluted because investigation of traffic violations
involves risk.
It has not been demonstrated that traffic stops are more
hazardous than other contacts with the public. After all,
saying that 30 percent of police shootings involve suspects
in automobiles is another way of saying that 70 percent of
police shootings involve suspects not in automobiles. With-
out knowing what percentage of police contacts with the
N
public involve traffic stops, it is impossible to say from the
statistics presented whether traffic stops are more or less
dangerous than other contacis.
Even if the decision in this case were one of legislative
judgment rather than constitutional interpretation, it seems
unlikely that the rule urged by Petitioner and Amici would
significantly reduce the risk to police officers investigating
traffic offenses. Thousands of traffic stops are made daily.
Amicus acknowledges that “there is no way officers can
— in advance which suspects are likely to be danger-
* Brief of Gulf & Great Plains Legal Foundation, p. 9.
Tho Gonaer to tho 90 percent of pellen efllcars billed in Ge
line of duty approaching automobiles will not be lessened
by authorizing warrantless searches of unoccupied cars of
suspects who have left their cars and identified themselves
to the police.
6. There is a significant privacy interest in au-
tomobiles.
It is suggested that a ‘diminished expectation of pri-
vacy”’ in automobiles is reason to justify their warrantless
search on less than probable cause. The suggestion seems
contrary to the holding of Almeida-Sanchez v US, 413 US
266, 269 (1973):
‘*(that] the Carroll [v United States, 267 US 132 (1925)}
doctrine does not declare a field day for the police in
searching automobiles. Automobile or no automobile,
there must be probable cause for the search.”
Delaware v Prouse, 440 US 648, 663 (1979) rejected the
notion that Fourth Amendment protections should be fewer
for citizens in automobiles than for others, saying:
“As Terry v Ohio, supra, recognized, people are not
shorn of all Fourth Amendment protection when they
step from their homes or to the public sidewalks. Nor
are they shorn of those interests when they step from
the sidewalks into their automobiles.”
12
“The word automobile is not a talisman in whose pre-
sence the Fourth Amendment fades away and disap-
pears."’ Coolidge v New Hampshire, 403 US 443, 462
(1971).
US v Ross, 102 S Ct 2157, 2172 (1982) refused to draw a
distinction between *‘worthy’’ and “‘unworthy”’ containers.
The Court should resist the notion that the private contents
of motor vehicles are less worthy of protection than other
“effects’’ protected by the Fourth Amendment.
The diminished expectation of privacy in automobiles
arises because the ‘‘configuration, use and regulation of
automobiles’’ make them less likely to be “‘private’’ than
other properties. Arkansas v Sanders, 442 US 753, 761
(1979).
The Court has noted that a car travels ‘‘public
thoroughfares where both its occupants and its contents are
in plain view.’ Cardwell v Lewis, 417 US 583, 590 (1974)
(plurality opinion) (emphasis added). There are extensive
regulations governing the condition and manner in which
motor vehicles can be operated on public streets. Cady v
Dombrowski, 413 US 433, 441 (1973). Automobiles periodi-
cally undergo official inspection and are occasionally taken
into police custody. South Dakota v Opperman, 428 US
364, 368 (1976). In short, cars are sometimes not “‘private.”’
However:
“It hardly follows that from the fact that the police may
examine the license plates and headlights of a person's
car that he has a reduced expectation of privacy in the
glove compartment or in the trunk of his car.’ Kamisar,
Y., Recent Developments in Constitutional-Criminal
Procedure, Michigan Institution of Continuing Legal
Education, p. 9 (1982).
Reduced to its basics, the argument of Petitioner and
Amici is that the Court has authorized so many exceptions
to the warrant requirement regarding automobiles that creat-
ing one more won't hurt.
13
In his dissent in Terry v Ohio, 312 US 1, 39 (1968),
Justice Douglas warned of the ‘powerful hydraulic pres-
sures which “bear heavily on the Court to water down
constitutional guarantees."’ Those pressures are evidently
still at work.
7. An automobile search is a serious intrusion on
personal privacy.
The Government suggests an additional exception to the
warrant requirement is reasonable because, in its view,
rummaging through Long's personal effects was a less seri-
ous intrusion upon his Fourth Amendment rights than pat-
ting him down for weapons. There are two things wrong
with the Government's analysis. First, no one asked Long
which intrusion he regarded as more serious. Secondly,
exceptions to the warrant requirement are not made based
on the intrusiveness of the search authorized. They are
made based on the need for the search in view of the
exigencies involved. Coolidge vy New Hampshire, 403 US
443, 479 (1971).
in Terry v Ohio, 392 US 1 (1968), the Court was at
pains to point out that an invasion of privacy the police
regard as trivial is often a matter of great indignity to the
citizen intruded upon. The Government stands Terry on its
head by arguing that because, in its view, the intrusion on
Long's Fourth Amendment right “‘to be secure in. . . [his]
effects’’ was less onerous than its invasion of his right “‘to
be secure in [his] person,”’ he has no cause to complain.
Terry did not set up a system for grading invasions of
Fourth Amendment rights. It did not authorize trivial or
even ‘‘moderate’’ violations of the consitution. Terry an-
nounced a limited exception to the warrant requirement,
saying:
‘A search for weapons in the absence of probable cause
to arrest, however, must, like amy other search, be
strictly circumscribed by the exigencies which justify its
initiation."’ Terry v Ohio, 392 US 1, 25-26 (1968).
14
As will be discussed more fully below, there were no
exigencies involved in this traffic stop which necessitated
the search conducted.
The unsupported assumption that citizens will be hap-
pier about police searches of their personal effects than
police searches of their persons is not a basis for further
expanding the limited exception to the warrant requirement
announced in Terry.
B. This case presents no reason for extension of the
“stop and frisk’’ exception to the warrant require-
ment to automobiles near detainees.
1. Frisking Long was not justified under Terry.
“The constitutional validity of a warrantless search is
pre-eminently the sort of question which can only be
decided in the concrete factual context of the individual
case."’ Sibron v New York, 392 US 40, 59 (1968).
There are no facts in this case which justify the search
of Long or the car he was driving. Although the deputies
found an object which might have been used as a weapon,
they never testified that they thought Long was dangerous.
Before a Terry search may be made, there must be
specific articulable facts to show not only that a detained
citizen may be armed, but that he presents a danger to the
police. 3 W. LaFave, Search and Seizure, §9.4, p. 114 n.17.
“The police officer is not entitled to seize and search
every person whom he sees on the street or of whom he
makes inquiries. Before he places a hand on the person
of a citizen in search of anything, he must have con-
stitutionally adequate, reasonable grounds for doing so.
In the case of a self-protective search for weapons, he
must be able to point to particular facts from which he
has reasonably inferred that the individual was armed
and dangerous."’ Sibron v New York, 392 US 40, 64
(1968).
15
Long was cooperative at all times (24a, 120a). He never
threatened the officers, either in word or gesture. He had
not given the officers any cause to draw their weapons or to
take F'm to the squad car (34a). He produced his license
when asked (Ila, 47a-48a, 79a). When told to stop and put
his hands on the car, he complied (12a, 3la, 80a, 110a-
Illa). After he was told he was under arrest, Long gave the
deputies the key to the car when asked (15a, 39a). Even
after the knife was discovered in the car, the most serious
offense the deputies wanted to investigate was speeding
(30a-31a). The frisk of Long showed that he was unarmed
(29a). The knife found in the car was closed when Deputy
Lewis picked it up (49a, 80a, 110a-I1la). Long was behind
the rear wheel of the car with both deputies between him
and the door after the knife was found (102a-1!04a). Al-
though Petitioner and Amici have suggested that Long
might have been charged with a laundry list of offenses, he
was not charged with driving under the influence, public
intoxication, reckless driving or any other offense. He was
arrested for possession of marijuana and he was given an
appearance ticket for speeding (42a, 43a, 97a).
One of the deputies did testify that he was ‘‘concerned”’
about Long (34a). Police officers are trained to be cautious
and concerned about everyone they come in contact with.
Brief of Amicus Gulf & Great Plains Legal Foundation, p.
9. When being questioned about his degree of concern,
Deputy Howell testified: **1 didn’t completely ignore him.”
(34a) He assumed that Deputy Lewis was near Long (102a).
The deputies felt it was unnecessary to handcuff Long
immediately upon his arrest. That was not done until after
he had given them the key they had asked for and the
marijuana in the trunk had been found (20a).
A number of factors have been mentioned as possible
justifications for a search of the car. The traffic stop was
made in a relatively unpopulated rural area. It was night-
time. Long had been speeding. He had been involved in an
accident. He acted like someone who had been in an
16
accident, i.e. confused and disoriented. He may have been
intoxicated. His response to questions was slow. There was
an object in plain view in the car he had left (a knife) which
was lawful for him to possess but which might have been
used in a way to injure the officer.
Many of these factors are involved in a great many
traffic stops. There is nothing unusual about them and
nothing to suggest any particular danger to the officer. The
United States admits that most of them would not support a
search of the car. Brief of Solicitor General, p. 12.
It would be hard to find a part of Barry County not
rural and isolated. There is no reason to believe that
Michiganders become more prone to violence after the sun
goes down. Violations of traffic laws and accidents are
common. They are not usually crimes associated with vio-
lence or the use of dangerous weapons. Driving under the
influence of intoxicating liquor or drugs is, unfortunately,
an everyday occurrence. (The deputies never seriously re-
garded Long as a drunk suspect. He was not given dexter-
ity or sobriety tests or charged with drunk driving. There
was no testimony showing that he looked intoxicated, i.e.
that his eyes were bloodshot, his speech was slurred, etc.
His confused behavior was as easily attributable to the fact
that he had just been in an accident as it was to anything
elsc.)
Since Long was cooperative, never threatened the de-
puties, and never made any effort or movement which
suggested to them that he was going to hurt them, the only
factor of significance to the automobile search is the pre-
sence of the closed buck knife in the car. That was the
reason given for the search (12a).
2. The presence of a potentially dangerous, but legal,
object in a car does not justify a Terry search.
If the presence of potentially dangerous objects near a
motorist detained on a traffic violation is justification for a
Terry search of his car, then every motorist stopped on the
17
highways of this nation will be subject to search. Nearly
anything that can be transported in a car—and even the car
itself—can be used to inflict harm.
People use cars to transport their personal effects, the
tools of their trades, sporting equipment and a wide variety
of objects that could be used as weapons. Coincidentally,
Deputy Howell had a pocket knife the night of Long's
arrest (16a, 86a). The car Long was driving had screwdriv-
ers, hammers and other legal but potentially dangerous
objects in it which Deputy Howell ignored in his search
(26a, 92a, 121a).
The buck knife in this case was legal. See MCLA
750.227; MSA 28.424; People v Iverson, 34 MichApp 519
(1971). Ones like it are popular and used for many lawful
purposes. Norman, G., Blue-Chip Blades, Esquire, August,
1980, at 40; Petzel, D., Once Again, I * XL, Mechanic's
Illustrated, March, 1981, at 140; Murphy, B., A Buster of a
Folding Knife, Mechanic's lilustrated, November, 1980, at
86; Knife Know-How, Mother Earth News, July/August,
1981, at 152.
The most commonplace items have been found to be
deadly or dangerous weapons. State v Belfiglio, 134 SW 508
(Mo. 1911) (Steel screwdriver). Fox v State, 556 P2d 1281,
1284 (Ok. 1976) (hammer). People v Russell, 139 P2d 661,
663 (Cal. Ct. App. 1943) (fingernail file). State v Lawson,
227 SW2d 642, 644 (Mo. 1950) (rock). People v Shaffran,
243 Mich 527; NW 716 (1928) (stone). Johnson v State, 409
NE2d 699, 701 (Ind. Ct. App. 1980) (scissors). State v
Pustamonte, 593 P2d 659 (Ariz. 1979) (scissors). Bowers v
People, 617 P2d 560, 563 (Colo. 1980) (bottle). State v
Leak, 306 So2d 737, 739 (La. 1975) (socket wrench handle).
People v Spagnola, 260 NE2d 20, 28 (ill. App. Ct. 1970)
(billiard cue).
A flashlight, a broomstock, a cigarette lighter and a
booted foot have all been found to be dangerous weapons in
Michigan. People v Buford, 69 MichApp 27, 30; 244 NW2d
351 (1976).
In People v Goolsby, 284 Mich 375; 279 NW 867 (1938),
the Defendant was stopped for a traffic offense. He got out
of his car, returned to it and used the car to assault the
officer. He was convicted of assault with a dangerous
weapon.
Terry represented a significant departure from traditional
Fourth Amendment analysis. Dunaway v New York, 442
US 200, 209-210 (1979). It was announced as a limited
exception to the warrant requirement. It has repeatedly
been referred to as an exception narrow in scope. If it is
expanded to permit searches of motor vehicles of persons
detained for traffic violations because i.e car, or the legal
objects it contains, might be used to injure the officer, then
there will be more exception than rule. Each of the
thousands of people detained daily in this country for traffic
violations will be subject to search, not incident to any
arrest or based upon probable cause. The presence of a
potentially dangerous object in the vicinity of a traffic
offender cannot justify a warrantless search. There must
also be a specific articulable reason to believe that the
detainee is dangerous.
3. Cases which have permitted protective searches of
automobiles are distinguishable.
Petitioner, Amici and the dissenters in the Michigan
Supreme Court have cited cases in which courts have
upheld warrantless searches of automobiles as protective
searches permitted under Terry v Ohio, 392 US 1 (1968).
The facts presented in those cases differ markedly from the
situation that presented itself to Deputies Howell and
Lewis.
When Deputies Howell and Lewis searched Long, they
had no reason to believe that he had been involved in an
on-going, violent feud of some kind. Cf. US v Rainone, 586
F2d 1132 (7th Cir. 1978), cert den 430 US 980 (1979), US v
Powless, 546 F2d 792 (8th Cir.), cert den 430 US 910 (1977);
contra Louisiana v Greenwald, 369 So2d 1317 (1979). They
19
had no reason to believe that Long was wanted on an
outstanding warrant or in connection with a murder investi-
gation. Cf. State v Gilchrist, 299 NW2d 913 (Minn. 1981);
US v Powless, supra. They had no reason to believe that
Long might have been planning, or had recently partici-
pated in, a robbery. Cf. Brown v State, 358 So2d 596 (Fla.
Dist. Ct. App., 1978); Uptegraft v State, 621 P2d 5 (Ala.
1980); US v Thomas, 314 A2d 464 (DC, 1974). They had no
reason to suspect that he had been involved in a recent
shooting. Cf. Williams v State, 310 A2d 593 (Md. Ct. Spec.
App., 1973); Maine v Darling, 393 A2d 530 (1978).
Long had not been observed making any furtive ges-
tures as if he were concealing something when the officers
approached. Cf. Brown v State, supra; Commonwealth v
Almeida, 366 NE2d 756 (Mass. 1977); State v Brown, 389
A2d 507 (NJ Super. Ct. Law Div., 1978); US v Green, 456
F2d 620 (DC 1972); US v Thomas, 314 A2d 464 (DC, 1974);
contra Louisiana v Greenwald, supra.
Long's case is more like Canal Zone v Bender, 573 F2d
1329 (Sth Cir. 1978); City of Portland v Poindexter, 590 P2d
781 (Or. Ct. App. 1979); Tyler v US, 302 A2d 748 (OC,
1973); and State v Gannaway, 191 NW2d 555 (Minn., 1971).
In each of those cases, courts have refused to permit a
search of a traffic offender's car, where the only crime the
officers suspected the defendani may be associated with
was a traffic offense, even where the defendant was nerv-
ous or upset.
As a matter of Michigan law, Deputies Howell and
Lewis could not have searched the car Long was driving
simply because he was stopped for a traffic offense. People
v Zeigler, 358 Mich 355; 100 NW2d 456 (1960); People v
Nelson Pitts, 40 MichApp 567, 571-572; 199 NW2d 271, lv
den 388 Mich 791 (1972); People v Lee, 371 Mich 563, 124
NW2d 736 (1963); People v Ridgeway, 74 MichApp 306, 312,
253 NW2d 743, lv den 401 Mich 831 (1977); People v 7th
District Judge, 55 MichApp 471, 476, 222 NW2d 778 (1974).
20
The evidence against Long could only be admitted if the
search of his car was justifiable under Terry. The articulable
facts supporting a reasonable belief that Long was danger-
ous are missing in this case and, therefore, the evidence
found in the search of his car was properly suppressed.
4. The search for weapons was a pretext.
In Sibron v New York, 396 US 40, 46 (1968), the Court
refused to uphold the search of a detainee that resulted in
the discovery of heroine because the officer did not ‘‘seri-
ously suggest that he was in fear of bodily harm and that he
searched Sibron in self-protection to find weapons.’’ The
arresting officer was so little concerned about weapons that
he did not pat down Sibron. Id at 65. Cf. US v Rainone,
586 F2d 1132, 1138 (7th Cir. 1978), which distinguished
Canal Zone v Bender, 573 F2d 1329 (Sth Cir. 1978), by
noting that the investigating officers were so unconcerned
about safety that they did not pat down the defendants
before searching their car.
Deputies Howell and Lewis never seriously suggested
that they were in fear of bodily harm from Long. He was
cooperative at all times. He had made no threats. He did
what he was told. Even after the knife was discovered, the
deputies considered his detention a traffic stop (31a).
The deputies ignored tools, including a hammer and
screwdriver, in their “‘search for weapons,’’ concentrating
instead on a barely-visible leather object under an armrest
on the front seat (121a). Common sense should have indi-
cated to the deputies that neither the knife nor other items
in plain view in the car were contraband:
“Contraband goods rarely are strewn across the trunk
or floor of a car; since by their very nature such goods
must be withheld from public view...’ US v Ross,
102 S Ct 2157, 2170 (1982).
The ostensible reason for searching the car ‘‘for
weapons’ was to permit Long to get in it to find the
21
registration (35a), although after finding the knife the de-
puties may not have let Long back into the car under any
circumstances (54a, 12la). There is also testimony that the
car’s papers may have been the first thing the deputies
found in looking through the car (Sila). They also believed
that the registration was probabiy in the glove compartment
where they could have easily obtained it without searching
the car by asking Long where it was (40a-41la).
In light of the fact that they thought Long might be
‘under the influence of something’’ (25a) and that he acted
like someone who might have ‘open intoxicants in the
car,”’ it seems more likely that their search was prompted
by a desire to find contraband than it was to protect
themselves.
Il. THE SEARCH OF THE TRUNK WAS NOT A
BONA FIDE INVENTORY SEARCH.
A. The propriety of the trunk search involves control-
ling issues of state law.
The Michigan Supreme Court never reached the ques-
tion of whether the trunk search was a lawful inventory
search. It never considered whether it was lawful as a
search incident to arrest or as a probable cause search since
neither of those grounds had been advanced by the prosecu-
tion, and Michigan law precludes consideration of issues
not raised in the lower courts. Dwelley v Tom McDonnell,
Inc, 334 Mich 229, 233; 54 NW2d 217 (1952); Ford v
Howard, 59 MichApp 548, 551; 229 NW2d 841 (1975). Even
if it is assumed that US v Ross, 102 S Ct 2157 (1982),
should apply retroactively to cases in which the issue has
not been preserved on appeal, the appropriate course for
this Court to take, if it decides to consider the trunk search,
would be to remand the issue to the Michigan Supreme
Court for consideration of applicable state law.
If the Michigan Supreme Court had reached the merits
of the trunk search, its decision would have been governed
22
by controlling state precedent. Arrest for a traffic offense
would not, under Michigan law, have justified searching the
Defendant or impounding his car, particularly without first
- 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); lv den 406 Mich 945 (1979).
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, 25 MichApp 376,
379; 181 NW2d 578 (1970).
Even if the deputies had probable cause to believe that
Long had committed 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.
Peopie v Lolley, 113 MichApp 567; 317 NW2d 342, lv den
413 Mich 919 (1982).
A custodial arrest of Long for speeding would not have
been appropriate under Michigan law. See MCLA 257.727;
MSA 9.2427. 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 im-
pounding the car under Michigan law.
B. The trunk search was not an inventory search.
The deputies testified that they had an investigatory
motive for searching the trunk and that they had no stan-
dard procedure for inventories. Deputy Howell testified at
the Preliminary Examination as follows (15a-17a):
“A. ...At this time I took my pocket knife and
reached in and unlatched the latch.
23
Why did you do that?
It was unusual circumstances to me. Also we check
the vehicle to make sure there is nothing, you know,
that’s valuable.
And you do that in limited circumstances where
there is no other person to drive the vehicle away?
Yes, sir.
Is that standard policy?
. It’s my policy, yes.
The Court: What's your policy? I kind of missed that
when a truck went by.
Mr. Howell: Yes, sir, we don’t—I think what the pro-
secutor is getting at is an inventory search. We do not
have an inventory search.
The Court: Alright so you opened the trunk?
Mr. Howell: Personally, well I can’t speak for the other
officers, myself I check the vehicle to make sure there’s
nothing of value in there that can be later claimed...
The Court: Alright, fine, but why did you open the
trunk?
Mr. Howell: Number one, because I already found
marijuana, suspected marijuana in the interior of the
car, there may have been more in the trunk. Secondly, I
checked them for valuables. I do.”’
A primary reason for Deputy Howell's search of the
car, including the trunk, was to discovery additional con-
traband. Howell testified that after arresting Defendant for
possession of the marijuana discovered in the interior of the
car, he ‘‘checked the interior of the vehicle for further
contraband”’ (85a) and that he ‘‘searched the car for any
more suspected narcotics ...”’ (14a).
> ©
>O> ©
In deciding whether a search is an ‘‘inventory’’ search,
motivation for the inspection is a significant factor. Search-
ing a vehicle for contraband is not an inventory search.
People v Martin, 368 NYS2d 342, 348 (NY App. Div.,
1975).
24
Where, as here, no written list of the items inventoried
is made, the process of inventorying stops when contraband
is found (19a-20a), the search is conducted in places other
than where valuables are usually stored (i.e., the glove
compartment), no standard procedure is followed and the
investigating officer testifies that the search was undertaken
to find contraband, there can be no finding of an ‘‘inven-
tory’ search. State v McDaniel, 383 A2d 1174, 1180 (NJ
Sup. Ct. App. Div., 1978).
The District Court, the Circuit Court and the Court of
Appeals upheld the search of the trunk as an “inventory
search.”’ All three Courts relied on South Dakota v Opper-
man, 428 US 364 (1976).
The reliance on Opperman was misplaced. In Opper-
man, id at 376, a plurality of the Court held that the
inventory search of an automobile ‘‘following standard
police procedures’’ was not “‘unreasonable’’ within the
meaning of the Constitution. The Court carefully em-
phasized that the search was conducted in accordance with
standard procedures, using a standard form and departmen-
tal routine. The Court referred to *‘standard’’ procedures at
least five times in its opinion.
Opperman reviewed Cady v Dombrowski, 413 US 433
(1973) saying:
‘The Court carefully noted that the protective search
was carried out in accordance with standard procedures
in the local police department, . . . a factor tending to
insure that the instrusion would be limited in scope to
the extent necessary to carry out the cartaking func-
tion.’ (Emphasis in original) South Dakota vy Opper-
man, 428 US at 374-375.
There was no suggestion that “this standard proce-
dure ... was a pretext concealing an investigatory police
motive.’’ Id at 376.
25
In this case, there were no guarantees that Deputy
Howell's intrusion would be limited in scope. He had an
investigatory motive. He was not bound or guided by any
departmental policy. He made no written report of his
actions. He could not describe the things he had supposedly
inventoried for his own protection against claims of theft
(26a). He sought no approval or authority for his actions.
There was nothing ‘‘standard’’ about his procedure.
The rationale of ‘‘inventory searches’ was discussed in
US v Chadwick, 433 US 1 (1977). The Court said that in
some automobile seizures, a warrantless search is permissi-
ble because:
“Absolutely secure storage facilities may not be availa-
ble, and the size and inherent mobility of a vehicle
makes it susceptible to theft or intrusion by vandals.”
(Citations omitted) Id at 13 n. 7.
In this case, ‘‘absolutely secure’ storage facilities were
available. The care was secured in the basement of the
Sheriff's garage (53a, 87a-88a, 116a-117a). The arresting
officers were so certain that the car was safe from theft or
intrusion by vandals that they left the 75 pounds of
marijuana they had discovered in the trunk of the car (53a,
87a-88a, 116a-117a). Cf. State v McDougal, 228 NW2d 671,
678 (Wis. 1975).
Unlike Opperman, this Defendant was available to ar-
range to have the car transported. Nearly two hours went
by while the deputies and the Defendant waited at the scene
of their encounter for a tow truck to arrive (84a-85a). In
that time, alternative arrangements could have been tried or
the deputies could have sought a warrant.
C. A lawful inventory can only follow a lawful im-
poundment.
Many courts have held inventory searches to be a
violation of constitutional rights when alternatives to im-
poundment are available or when the police fail to investi-
gate alternatives.
26
State v Hardman, 567 P2d 238, 240 (Wash. Ct. App.,
1977), held that the state must prove that no alternatives to
impoundment exist before an inventory search will be up-
held.
In State v Bales, 552 P2d 688, 690 (Wash. Ct. App.,
1976), the Court said:
*‘Impoundment of a citizen's vehicle following his or her
arrest on a traffic charge is inappropriate when reasona-
ble alternatives to impoundment exist.”’
State v Slockbower, 397 A2d 1050, 1053 (NJ, 1979),
summarized cases from ‘‘a substantial and growing minority
of jurisdictions’’ holding that impoundment and inventory-
ing are impermissible procedures absent:
“a factual showing of substantial police need, in the
light of the consitutional regard for the privacy interests
of automobiles’ drivers . . .”
David Long was never asked if he wanted the car towed
away by a wrecker of his choosing, or if he knew of
someone who could be called to take the car away. He was
not given the option of parking the car next to the roadway
or in an appropriate nearby place. The car was not evidence
and no Michigan statute authorized its impoundment. In-
stead, nearly two hours went by while all concerned waited
for the tow truck and the vehicle was impounded.
The trunk search was not a valid inventory search.
Il. THE DECISION BELOW IS SUPPORTED BY AN
ADEQUATE STATE GROUND.
The Court should dismiss the Writ of Certiorari as
improvidently granted. The decision of the Michigan Sup-
reme Court is based on state law. Even if the Court should
determine that the Michigan Supreme Court's interpretation
of federal law was incorrect, its decision in this case would
amount to well-considered dictum. Cf. South Dakota v
27
Opperman, 428 US 364 (1976); State v Opperman, 247
NW2¢ 673 (SD, 1976) (after remand).
[Where the judgment of a state court rests upon two
grounds, one of which is federal and the other non-
federal in character, our jurisdiction fails if the non-
federal ground is independent of the federal ground and
adequate to support the judgment.’ Fox Film Corp v
Muller, 296 US 207, 210 (1935).
The Michigan Supreme Court expressly grounded its
decision on both the state and federal constitutions. See
People v Long, 413 Mich 461, 471 n.4, 473; 320 NW2d 866,
869 n.4, 870 (1982). People v Secrest, 413 Mich 521, 525;
321 NW2d 368 (1982), noted differences in wording between
the state and federal constitutional provisions regarding
searches and seizures. The Court said:
‘As a result, we have imposed a higher standard under
the state provision than the federal when the item seized
is not one within the proviso of the third sentence of art
1, $11."
The proviso of the third sentence of Article 1, §11 of the
Michigan Constitution prohibits application of the exclusio-
nary rule to, among other things:
“Any narcotic drug. . . seized by a peace officer out-
side the curtilage of any dwelling house...”
This case does not come within that proviso since
marijuana is not a narcotic drug under Michigan law.
MCLA 333.7107; MSA 14.15(7107).
It is true, but unremarkable, that the Michigan Supreme
Court looked to federal case authority in its analysis of the
state constitutional question. It does so traditionally. See
People v Secrest, supra, et 525. However, unlike the situa-
tion presented to this Court in Delaware v Prouse, 44 US
648, 651-653 (1979), the state constitution has not been
interpreted as coextensive with the federal constitution.
Examples of the greater protection afforded to citizens 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 v Illinois, 359 US 121 (1959).
The automatic standing rule of Jones v US, 362 US 257
(1960), repudiated in US v Salvucci, 448 US 83 (1980), has
apparently not been abandoned in Michigan. See People v
Nabers, 103 MichApp 354, 375; 303 NW2d 205, 214, rev'd
on other grounds, 411 Mich 1046; 309 NW2d 187 (1981) and
People v Smith, 118 MichApp 366, 373, 377; 325 NW2d 429
(1982).
In People v Wallach, 110 MichApp 37, 70-71 n.8; 318
NW2d 387 (1981), the Court said:
“Michigan consitutional law in many ways provides
more stringent standards to safeguard the rights of the
individual accused than do our sister states and the
federal system.”
See also People v Chernowas, 111 MichApp 1, 4; 314
NW2d 505 (1981).
29
There is no reason to believe that the Michigan Supreme
Court:
“felt compelled by what it understood to be federal
constitutional considerations to construe... its own
law in the manner it did."’ Delaware v Prouse, 440 US
648, 653 (1979).
At the very least, the question of the applicability of
state law is uncertain enough that the Court should remand
for clarification as to the ground upon which the judgment
rested. Cf. California v Krivda, 409 US 33, 35 (1972).
CONCLUSION
No exigent circumstance justified the warrantless search
of Long or his car. The only rationale advanced for these
searches was the protective search rationale of Terry v
Ohio, 392 US 1 (1968). The presence of an item in the car,
not contraband, that could be used to hurt the officers did
not justify a search of the car absent an objective basis for
believing that the Defendant presented a danger to the
officers. The officers’ actions and testimony show they did
not regard Long as a danger.
Further extension of Terry's exception to the warrant
requirement is not justified as a matter of policy or on the
facts of this case. The Michigan Supreme Court's decision
should be affirmed.
Because the Michigan Supreme Court did not reach any
other issue in the case, it presents an inappropriate vehicle
for this Court’s determination of any issue other than
whether the scope of Terry should be expanded.
30
The Court lacks jurisdiction because the Michigan Sup-
reme Court's decision was based on an adequate state
ground. The Court should either remand for a clarification
of the basis of the Michigan Supreme Court's decision or
dismiss the Writ of Certiorari as improvidently granted.
Respectfully submitted,
James H. Geary
Lrtie & Geary
Business Address:
107 West Michigan-Suite 301
Kalamazoo, Michigan 49007
Telephone: (616) 344-1575
Counsel of Record for Respondent
Joseph J. Jerkins
Viacnos, Jerkins 4 Hurey
Business Address:
729 Academy Street
Kalamazoo, Michigan 49007
Telephone: (616) 381-6646
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.