PEOPLE OF MI V CHARLES JOHNSON JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 17, 2006
Plaintiff-Appellee,
v
No. 257985
Oakland Circuit Court
LC No. 04-196729-FH
CHARLES JOHNSON, JR.,
Defendant-Appellant.
Before: Murray, P.J., and Jansen and Kelly, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions for possession with intent to
deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), and possession with intent to
deliver marijuana, MCL 333.7401(2)(d)(iii). Defendant was sentenced, as a second habitual
offender, MCL 769.10, to 1 ½ to 30 years’ imprisonment for his possession with intent to deliver
less than 50 grams of cocaine conviction, and one to six years’ imprisonment for his possession
with intent to deliver marijuana conviction. We affirm.
On appeal, defendant argues that the trial court erred when it denied his motion to
suppress evidence because the stop and subsequent search of defendant and the vehicle he was
driving violated his Fourth Amendment right to be free from unreasonable seizures and searches.
We disagree.
In evaluating a motion to suppress, this Court reviews a trial court’s factual findings for
clear error. People v VanTubbergen, 249 Mich App 354, 359-360; 642 NW2d 368 (2002).
Regard should be given to the special opportunity of the trial court to judge the credibility of the
witnesses who appeared before it. MCR 2.613(C). “To the extent that a trial court's ruling on a
motion to suppress involves an interpretation of the law or the application of a constitutional
standard to uncontested facts, our review is de novo.” People v Attebury, 463 Mich 662, 668;
624 NW2d 912 (2001).
Both the state and federal constitutions guarantee protection against unreasonable
searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. Neither the state nor federal
constitution forbids all searches and seizures, but only unreasonable ones. People v Rice, 192
Mich App 512, 517; 482 NW2d 192 (1992). A person has been “seized” under the Fourth
Amendment when a police officer has restrained the person’s individual freedom. People v
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Chambers, 195 Mich App 118, 121; 489 NW2d 168 (1992), citing Terry v Ohio, 392 US 1, 16;
88 S Ct 1868; 20 L Ed 2d 889 (1968).
The protection against unreasonable searches and seizures does not prevent police
officers from making a “valid investigatory stop if they possess ‘reasonable suspicion’ that crime
is afoot.” People v Champion, 452 Mich 92, 98; 549 NW2d 849 (1996).
Reasonable suspicion entails something more than an inchoate or unparticularized
suspicion or ‘hunch,’ but less than the level of suspicion required for probable
cause. A valid investigatory stop must be justified at its inception and must be
reasonably related in scope to the circumstances that justified interference by the
police with a person’s security. Justification must be based on an objective
manifestation that the person stopped was or was about to be engaged in criminal
activity as judged by those versed in the field of law enforcement when viewed
under the totality of the circumstances. The detaining officer must have had a
particularized and objective basis for the suspicion of criminal activity. [Id. at 98
99 (internal citations omitted).]
In determining whether reasonable suspicion exists, “circumstances must be viewed ‘as
understood and interpreted by law enforcement officers, not legal scholars.’. . . In analyzing the
totality of the circumstances, the law enforcement officers are permitted, if not required, to
consider ‘the modes or patterns of operation of certain kinds of lawbreakers.’” People v Oliver,
464 Mich 184, 192, 196; 627 NW2d 297 (2001), quoting People v Nelson, 443 Mich 626, 632,
636; 505 NW2d 266 (1993).
Here, defendant was stopped by the police because he was speeding and was not wearing
his seatbelt. He was then detained, and a search of his body and car ensued. This Court must
evaluate the initial stop, search of defendant’s body, and subsequent search of defendant’s car in
order to determine whether the police conduct fell within an exception to the warrant
requirement for each action. People v Kazmierczak, 461 Mich 411, 420; 605 NW2d 667 (2000).
First, the initial stop of defendant was unquestionably constitutional. Police may stop,
question, and detain a person who violates traffic laws while driving. People v Lewis, 251 Mich
App 58, 70; 649 NW2d 792 (2002). At the evidentiary hearing, Officer Wood testified that he
had developed the ability to accurately estimate the speed at which an automobile is traveling
from the nine years of experience and training he has had as a patrol officer. He further testified
that he estimated the Contour defendant was driving was traveling about 50 miles per hour in a
35 mile per hour zone. Wood also testified that when he caught up to the vehicle, he observed
that neither defendant nor the passengers were wearing safety belts.
Although defendant and Clifton Manns gave testimony which conflicted with Officer
Wood, this Court must give regard to the special opportunity of the trial court to judge the
credibility of the witnesses who appeared before it. MCR 2.613(C). The trial court stated in its
opinion and order denying defendant’s motion to suppress that it “finds that Officer Wood was
credible.” According to Wood, he observed defendant commit two traffic violations. The trial
court found this testimony to be credible. Therefore, the initial stop of defendant was in
conformity with the Fourth Amendment. Lewis, supra at 70.
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Second, police had reasonable suspicion to further detain and frisk defendant after
initially being pulled over. A police officer may perform a limited pat down search for weapons
if the officer has a reasonable suspicion that the individual is armed, and thus poses a danger to
the officer or to other persons. People v Custer, 465 Mich 319, 328; 630 NW2d 870 (2001),
citing Terry, supra at 30-31. Wood testified, at the evidentiary hearing, describing the events as
follows:
Q. Now, explain for the Court, please, in as best detail as you can, the reason
why you determine you’re going to remove [defendant] from the car and pat
him down?
A. For officer safety.
Q. What about your officer safety cause [sic] you to bring this man out of the car
and subject him to a pat down?
A. The fact when I pulled up next to the vehicle, he was attempting to retrieve or
conceal something which I thought may have been a weapon, which I
observed. And then once the vehicle was stopped, they still disregarded my
orders to keep their hands where I could see them and stop moving about the
vehicle.
Q. In your tanning [sic] and experience, have you encountered similar situations
in the past, both practically in the street and in the training room?
A. Yes, I have.
Q. And in your practical experience, has this sort of activity resulted in the
seizure of weapons?
A. Yes, it has.
Wood testified that he took into consideration defendant’s actions of moving up and down,
reaching towards his groin area, and his experience and training in forming a reasonable
suspicion that defendant may have been armed. Wood may consider “the modes or patterns of
operation of certain kinds of lawbreakers” when he is forming reasonable suspicion. Oliver,
supra at 192. Therefore, Wood’s pat down of defendant was based on a reasonable suspicion
that he may have possessed weapons. Thus, the search was constitutional.
Third, under the plain feel exception to the warrant requirement, the seizure of the
Superglue container was constitutional. In Champion, our Supreme Court adopted the plain feel
exception to the warrant requirement as it was articulated by the United States Supreme Court in
Minnesota v Dickerson, 508 US 366, 375-376; 113 S Ct 2130; 124 L Ed 2d 334 (1993).
If a police officer lawfully pats down a suspect’s outer clothing and feels an
object whose contour or mass makes its identity immediately apparent, there has
been no invasion of the suspect’s privacy beyond that already authorized by the
officer’s search for weapons . . . . [T]he Fourth Amendment’s requirement that
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the officer have probable cause to believe that the item is contraband before
seizing it ensures against excessively speculative seizures. [Champion, supra at
104, quoting Dickerson, supra at 375-376.]
Wood testified as follows, describing how he found the Superglue container:
At the point I began to run my hand down the front of his body, I had him kind of
spread his legs and face sideways. I did not have his hands up on the car. I just
began to ran [sic] my hand down the front of him. As I ran it down the front part
of his pants, his groinal [sic] area, I felt a hard object in the front of his pants.
At this point in time, Wood asked defendant, “What’s that?” Defendant responded that it was
“dope.” Defendant was then placed under arrest and the object was seized. Given defendant’s
response to Wood’s question, that the object contained “dope,” paired with his behavior in the
car and Wood’s experience as an officer, Wood had probable cause to believe that the container
contained contraband and to arrest defendant. Champion, supra at 104. Thus, Wood’s seizure of
the container from defendant’s person was constitutional under the plain feel exception to the
warrant requirement.
Finally, the search of the vehicle subsequent to defendant’s arrest was constitutional.
This Court has held that a defendant does not have standing to challenge the search of a vehicle
when he does not assert a proprietary or possessory interest in it. People v Armendarez, 188
Mich App 61, 71; 468 NW2d 893 (1991). Here, defendant was not a party to the rental
agreement, and thus, was not an authorized user of the vehicle; therefore, he does not have
standing to contest the search of the vehicle.
Even if defendant did have standing, the search was constitutional pursuant to the search
incident to a lawful arrest exception to the warrant requirement. People v Eaton, 241 Mich App
459, 463; 617 NW2d 363 (2000), citing Chimel v California, 395 US 752, 763; 89 S Ct 2034; 23
L Ed 2d 685 (1969). When conducting a search incident to a lawful arrest, the police may search
the arrestee and the area within his immediate control. Eaton, supra at 463. This includes the
search of the passenger compartment of an automobile occupied by the arrestee as a
contemporaneous incident of that arrest. Id., citing New York v Belton, 453 US 454, 460; 101 S
Ct 2860; 69 L Ed 2d 768 (1981). The officer may also examine the contents of any containers
found within the passenger compartment. Belton, supra at 460. Wood’s search of defendant was
lawful, and Wood had probable cause to believe defendant was in possession of crack cocaine.
Therefore, defendant was lawfully arrested, and the search of the passenger compartment of the
vehicle, and any containers therein, was lawful.1
1
The search of the vehicle was also constitutional pursuant to the automobile exception to the
warrant requirement. Pennsylvania v Labron, 518 US 938, 940; 116 S Ct 2485; 135 L Ed 2d
1031 (1996). Under the automobile exception to the warrant requirement, Wood and Main were
permitted to search the vehicle so long as probable cause existed to believe it contained
contraband. Id. Considering Wood confiscated what he believed to be crack cocaine from
(continued…)
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Affirmed.
/s/ Christopher M. Murray
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
(…continued)
defendant’s person, and that he had observed each of the occupants of the car moving their hands
around inside of the car, probable cause existed to search the car for drugs.
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