PEOPLE OF MI V ERIC LEE BRANDENBURG
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 21, 1997
Plaintiff-Appellee,
v
No. 192358
Oakland Circuit Court
LC No. 95-138551 FH
ERIC LEE BRANDENBURG,
Defendant-Appellant.
Before: Jansen, P.J., and Fitzgerald and Young, JJ.
MEMORANDUM.
Defendant appeals by right from his bench trial conviction of possession with intent to deliver
marijuana, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c), which resulted in an enhanced sentence
based on defendant’s status as a second drug offender. The “trial” was a pro forma exercise,
apparently designed to substitute for a conditional guilty plea so that defendant could preserve his right
on appeal to contest the admissibility of evidence against him on Fourth and Fifth Amendment grounds.
Defendant contends that the discovery and seizure of marijuana from his person was the
product of an illegal search and seizure. However, he does not contest but that the initial patdown of his
person was permissible under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), as a
protective frisk for weapons. Immediately before the arresting officer, identified as an officer by display
of his badge and the wearing of a hat with “Police” in large, bright yellow letters, reached him,
defendant was seen reaching his hand into the crotch of his pants. When defendant was slow to exit the
vehicle despite instructions given at gunpoint, the officer’s concern for the safety of himself and his
colleagues was expectedly heightened.
In conducting a patdown of defendant’s person, the officer immediately and first checked the
groin area, where he detected a plastic bag containing what felt like stems and leaves. Inasmuch as the
officer, from prior contact or surveillance with or of defendant, had ample basis for suspecting defendant
of drug dealing, and considering the totality of all the other circumstances, including that defendant was
not wearing clothing lacking pockets or other more normal storage areas, the officer could properly
conclude that he had detected contraband, which is admissible under the so called “plain feel” exception
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to the Fourth Amendment warrant requirement. People v Champion, 452 Mich 92, 111-113; 549
NW2d 849 (1996).
That the officer nonetheless asked defendant to identify the object before seizing it does not
negate this finding. First, the officer’s subjective intentions and motivations are irrelevant; the question is
whether the objective facts known to the officer would have justified him in seizing the object stored in
defendant’s groin under the plain feel exception. People v Arterberry, 431 Mich 381, 384; 429
NW2d 574 (1988); Whren v United States, 517 US ___; 116 S Ct 1769; 135 L Ed 2d 89, 97-98
(1996). Second, the question simply offered defendant an opportunity to avoid the indignity of having a
police officer shove his hand into defendant’s crotch, had defendant been able to offer a credible,
innocent explanation to negate the conclusions about the object that the officer had already drawn.
Granting arguendo that defendant’s reply to the officer’s question, “It’s marijuana,” was the
product of custodial interrogation and that Miranda warnings were required, the statement itself played
no role in defendant’s conviction. The trial court made no mention of the statement in adjudicating
defendant guilty, and given the laboratory analysis establishing that the substance was indeed marijuana
and the evidence other than the statement establishing defendant’s possession and intent with respect to
the contraband, admission into evidence of the statement as part of the stipulated evidence at trial was
harmless beyond a reasonable doubt. People v Jones, 134 Mich App 371, 373; 350 NW2d 885
(1984).
Affirmed.
/s/ Kathleen Jansen
/s/ E. Thomas Fitzgerald
/s/ Robert P. Young, Jr.
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