People v. Rosales

281 N.W.2d 126, 406 Mich. 624, 1979 Mich. LEXIS 383

• Court: Michigan Supreme Court
• Decided: July 25, 1979
• Docket: Docket 62398
• Status: Published

Opinions

Per Curiam.

The question before us is how far the permissible stop-and-frisk of Terry v Ohio¹ extends in an automobile context. When the record does not show that the search was prompted by the officer’s fear of violence while pursuing his investigation, Terry v Ohio does not provide authority to validate the search without a warrant.

I

At roll call for his shift on June 10, 1976, Saginaw police officer Herzberg was told that a young black man, who had been arrested for the armed robbery of "after hours” drinking establishments in Saginaw, had escaped from the hospital where he apparently was receiving treatment. The individual was described only as being 5 feet 8 inches tall with a dark complexion.

Later that same morning (approximately 6:30 a.m.) Herzberg noticed a van parked in a prohibited zone by the entrance to a building. Herzberg testified that he knew that an "after hours” drinking establishment was being run in this building. Herzberg noted that the defendant was seated in the driver’s seat of the van and a young black man² was in the passenger seat.

He circled the block and pulled behind and to the side of the van. He decided to investigate further and radioed other officers of his intention to do so. His approach to the van went unnoticed by the occupants. As the officer approached the van, the defendant bent slightly forward, leaning to the right, and "* * * you could see that something was going on in the middle section of where his body was”.

Herzberg asked the defendant to identify himself and to step out of the van. The defendant did get out of the van and Herzberg told him to go back and stand by a backup unit which had by then arrived. Herzberg then looked inside the van and saw a "lump” where two pieces of carpeting came together.³ He lifted the carpeting and found a pistol.

The defendant was charged with carrying a pistol in an automobile.⁴

II

The defendant filed a motion to suppress the weapon seized; he alleged its seizure was the product of an illegal search. At the hearing on the motion, Herzberg explained his action as follows:

"Q. Well, why were you going to check the van?

"A Because of the circumstances of being parked in front of the after-hours joint, the movements that he had made and the male Negro subject in the van with him.

"Q. All right. What did you do then?

"A. After he had made his movements and stepped from the van, in my own mind, I was sure there was something there.

"Q. What did you think was there?

’A. A gun.

”Q. And why did you think that there was a gun there?

'A. As far as I could see, that’s all it could have been.

”Q. What factors did you base your belief that you— or your feeling that there was a weapon inside of the van at that time? What were the factors?

’A. It would be the simple fact that they were parked illegally in front of the after-hours joint, blocking, a clear obstruction in and out, and the movements that he made and the information that we had regarding these places that were being robbed.

”Q. All right, and what did you do when you looked inside the van? What did you find?

”A. I could see the carpeting was separated ahd there was a lump there, where the two pieces of carpeting had come together. One would be underneath and the other would overlap. The hump was pushed up.

"Q. Could you see the hump before you did ahything with the carpet?

"A. Yes.

”Q. What did you do after that?

’A. I lifted the piece of carpeting up and looked underneath it.

”Q. What did you find?

’A. A pistol.

”Q. Was it unloaded?

'A. No.

”Q. Was it ready to fire?

’A. Yes.

”Q. What did you do after you found the weapon?

’A. The weapon, when I found it, had the hammer cocked. Simply by depressing the trigger it would have fired so I dropped the clip out and racked the chamber. There was a live round in the chamber.”

In denying the motion, the trial judge Said in part:

"* * * it would appear that the evidence in this case clearly warrants the police action. He was acting on information which made him suspicious of the vehicle being parked at the place that it was, with the companion that the defendant had with him.

"This, combined with the defendant’s own motions in apparently trying to hide something, caused the officer very properly to take the steps he did to search the vehicle and to disarm the defendant.”

The Court of Appeals affirmed.⁵

Ill

Terry v Ohio permits a protective search of the person during an investigatory stop in order to militate against unnecessary risks to police officers performing their duties. Further detention oí* Search must be based on consent Or probable cause.⁶ The people do not suggest there was consent or probable cause in this case. While the police must be free to investigate without fear of violence,⁷ there is nothing in thié récord to suggest that Herzberg searched the van for that purpose.⁸

In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgments of the Court of Appeals and the circuit court and remand the case to the Saginaw Circuit Court for entry of an order consistent with this opinion.

Kavanagh, Levin, Ryan, arid Blair Moody, Jr., JJ., concurred.

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

2 The black man in the van was not in fact the one sought.

3 Contrast Pennsylvania v Mimms, 434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977), where the police noticed the "bulge” on defendant’s person once he emerged from a vehicle.

4 MCL 750.227; MSA 28.424.

5 87 Mich App 185; 274 NW2d 13 (1978).

6 See United States v Brignoni-Ponce, 422 US 873, 882; 95 S Ct 2574; 45 L Ed 2d 607 (1975), and United States v Ortiz, 422 US 891, 896; 95 S Ct 2585; 45 L Ed 2d 623 (1975). Contrast People v Damaska, 404 Mich 391; 273 NW2d 58 (1978), Where We found probable cause for the police to proceed with a vehicle search after an investigatory stop.

7 See Adams v Williams, 407 US 143, 146; 92 S Ct 1921; 32 L Ed 2d 612 (1972).

8 We need not decide, consequently, whether the Terry protective search may extend from the person to the vehicle a person has exited. See, e.g., Government of the Canal Zone v Bender, 573 F2d 1329 (CA 5, 1978), limiting Terry under similar circumstances.