People v. Cavitt

272 N.W.2d 196, 86 Mich. App. 59, 1978 Mich. App. LEXIS 2559

• Court: Michigan Court of Appeals
• Decided: September 21, 1978
• Docket: Docket 77-1775
• Status: Published

Opinions

Per Curiam.

The prosecution appeals from a pretrial order suppressing evidence seized from the person of the defendant and quashing the information charging defendant with possession of a controlled substance, methamphetamine. MCL 335.341(4)(b); MSA 18.1070(41)(4)(b). We affirm.

During the evening of September 9, 1976, two uniformed Detroit police officers were patrolling the area near the Greyhound bus terminal on foot. One of the officers noticed an individual, later identified as the defendant, park an automobile in a no-standing zone near the terminal. The officer wrote out a parking ticket but did not place it on the windshield. The officers waited for defendant to return so that the ticket could be "personally served”.

When defendant returned to the car he could not produce either a driver’s license or the registration for the automobile. He was then placed under arrest for driving without an operator’s permit in his possession. MCL 257.311; MSA 9.2011. After the arrest for this traffic offense, one of the officers conducted a pat down search "for offensive weapons”. No weapon was found, but the officer did feel two pill bottles which contained the drugs upon which this prosecution is based.

The motion to suppress was decided on the basis of the preliminary exam transcript. The officer testified at that hearing that he was searching for offensive weapons when the drugs were discovered. On cross-examination regarding the objects in defendant’s pocket and sock, the officer testified:

"Q Would you describe that container?

"A A prescription container.

"Q Was it circular?

"A Circular.

"Q About how tall?

"A Maybe two, three inches.

"Q About how wide?

"A Maybe a half inch diameter.

"Q And what weapon did you think that was?

"A I had no idea.”

The trial court granted the motion to suppress because it felt the officer could not have believed that the pill container felt like a weapon. The court relied upon People v Dixon, 392 Mich 691; 222 NW2d 749 (1974), in ruling that since there was no reason to suspect that defendant was armed, the search should not have occurred until defendant was given the opportunity to post bail under the interim bail statute.

Dixon is not strictly applicable to these facts since the discovery of narcotics in that case occurred during a search at the station house. An earlier search at the scene had revealed that defendant was not armed. The court analyzed the problem as an inventory rather than an incident to an arrest search. However, the rationale of Dixon does apply to this case.

In People v Garcia, 81 Mich App 260; 265 NW2d 115 (1978), the panel was faced with a problem factually similar to that presented here. After an extended analysis, the majority concluded that when a person is arrested for a minor motor vehicle offense and a pat down search does not give the officer reason to believe that the person is armed with a weapon that can be turned against him, no further search may occur until the individual is taken before a magistrate or given the opportunity to post bail.

We agree with the analysis and holding of Garcia. The trial court properly suppressed the drugs taken from the defendant in this case as the product of an unreasonable search and seizure. Since there was no reason to believe that defendant was armed with an offensive weapon, the officer acted unreasonably in seizing the pill containers.

Affirmed.