People v. Sinistaj , 184 Mich. App. 191 ( 1990 )

184 Mich. App. 191 (1990) 457 N.W.2d 36

PEOPLE
v.
SINISTAJ

Docket No. 109816.

Michigan Court of Appeals.

Decided February 13, 1990.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Richard Thompson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Divison, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.

Colista, Adams, Dettmer & Palmer, P.C. (by Robert W. Palmer and F. Philip Colista), for defendant.

Before: REILLY, P.J., and CYNAR and T.M. BURNS,^[*] JJ.

PER CURIAM.

Defendant appeals as of right his convictions for possession with intent to deliver between 50 and 225 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii), and carrying a pistol in a vehicle, MCL 750.227; MSA 28.424. He was sentenced to terms of ten to twenty years on the cocaine possession conviction and three to five years on the weapon charge, these sentences to run concurrently. Defendant challenges the admission of evidence obtained through an allegedly unlawful search and seizure, the trial court's denial of his request for an adjournment, and the sentence imposed. We affirm.

At about 2:15 A.M. on March 30, 1986, Farmington Hills police officer Brad Schwartz received a call that a suspicious white car with two occupants had been sitting in an apartment complex parking lot for some time. Officer Ed Wozniak, who was riding with an auxiliary officer, also received the call. Schwartz arrived at the apartment complex a second or two before Wozniak, who drove up behind him. Schwartz parked within about twenty feet of the white car and started to leave his own semi-marked vehicle. Almost simultaneously, the passenger got out of the suspect car and, in a frantic and nervous manner, asked Officer Schwartz what he wanted. The passenger took one hand out of his pocket, clenched his fist and quickly put it back in his pocket. Concerned that he might have a weapon, Schwartz asked the passenger several times to take his hand out of his pocket, but he refused. The officer grabbed the passenger's hand and forced it open, revealing a packet of white powder. Schwartz and Wozniak then arrested the passenger for possession of cocaine.

While this was taking place, defendant sat motionless in the driver's seat of the white car, with both hands on the steering wheel. Through the open passenger door, the officer saw an open beer can and an open bottle of cognac on the floor of the front seat. Officer Wozniak decided to arrest defendant for having open intoxicants in his car. When he patted down defendant, Wozniak found a telephone pager clipped to defendant's belt, a small vial of suspected cocaine and $2,715 in cash. While Wozniak was arresting defendant, Schwartz found under the driver's seat a fully loaded revolver, a loose round of ammunition and a brown paper bag containing drug paraphernalia. After placing defendant in his patrol car, Wozniak removed the keys from the ignition, opened the trunk of the car and noticed a cardboard panel slightly ajar. Behind the panel was a tape-covered brown box containing 106.52 grams of cocaine and a package of baking soda.

Defendant contends that the evidence found on his person and in his car when he was arrested was inadmissible at the preliminary examination and at trial as the fruit of an unlawful search and seizure by the police. First, he argues that the police officers' actions in arriving at the apartment parking lot and approaching defendant's vehicle constituted an investigatory stop, for which they had no reasonable articulable suspicion of ongoing criminal activity.

A seizure which triggers the protections of the Fourth Amendment occurs when, under the circumstances, a reasonable person would have believed that he was not free to leave. United States v Mendenhall, 446 U.S. 544; 100 S. Ct. 1870; 64 L. Ed. 2d 497 (1980); People v Shabaz, 424 Mich. 42, 66; 378 NW2d 451 (1985), cert dis 478 U.S. 1017; 106 S. Ct. 3326; 92 L. Ed. 2d 733 (1986). However, not all encounters between police and citizens rise to the level of a seizure requiring constitutional justification. Terry v Ohio, 392 U.S. 1, 19, n 16; 88 S Ct 1868; 20 L. Ed. 2d 889 (1968). In Florida v Royer, 460 U.S. 491, 497; 103 S. Ct. 1319; 75 L. Ed. 2d 229 (1983), Justice White wrote in a plurality opinion:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.... Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.

Earlier, in Mendenhall, supra at 554, also in a plurality opinion, the Supreme Court offered examples of circumstances which might constitute a seizure, even where the person made no attempt to leave:

[T]he threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

More recently, in Immigration & Naturalization Service v Delgado, 466 U.S. 210, 216; 104 S. Ct. 1758; 80 L. Ed. 2d 247 (1984), the Court explained:

Although we have yet to rule directly on whether mere questioning of an individual by a police official, without more, can amount to a seizure under the Fourth Amendment ... [it] is apparent ... that police questioning, by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.... Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment.

Interpreting Terry, supra, and its progeny, this Court in People v Daniels, 160 Mich. App. 614, 619; 408 NW2d 398 (1987), stated:

Thus, it appears that for Terry purposes a police approach for questioning on the street amounts to a consensual encounter, not a Terry stop, unless there exist intimidating circumstances leading the person to reasonably believe he was not free to leave or the person rebuffs the police officer by refusing to answer and walking away. It is in the latter situations that justification for a Terry stop must be present before the police may detain the person.

We conclude that no investigatory stop had occurred at the point where Officer Schwartz had pulled within twenty feet of the suspect car and was leaving his vehicle. Officer Wozniak's patrol car was behind Schwartz's. According to Officer Schwartz, he had not used the overhead lights of his semi-marked car and did not have his gun drawn. Before Schwartz had any opportunity to speak or question the occupants of the car, defendant's passenger created, by his actions, a reasonable articulable suspicion of criminal activity, at least by the passenger. The initial actions of the police officers were not so intimidating as to lead defendant to reasonably believe he was not free to leave or rebuff the officers by refusing to answer any questions and drive away. Daniels, supra. Absent an investigatory stop prior to the passenger's suspicious movements, the officers were not required to show that they had a reasonable articulable suspicion of criminal activity by defendant.

Defendant further argues that the search of his person was unlawful, because it was not incident to a lawful arrest. First, he contends the officers never testified that there were alcoholic beverages in the open beer can and cognac bottle. Officer Wozniak testified on several occasions that there were open intoxicants in the vehicle in plain view. We can only conclude at this juncture that the officer meant what he said.

Defendant also claims that his arrest pursuant to MCL 436.34a; MSA 18.1005(1) was unlawful, because the statute's prohibition against open containers of alcoholic beverages is limited to vehicles on state highways. Defendant argues that, because his vehicle was not on a public highway, he could not be arrested under that statute.

MCL 764.15(1)(a); MSA 28.874(1)(a) authorizes a peace officer to arrest a person without a warrant when an ordinance violation is committed in the peace officer's presence. Farmington Hills Ordinances, § 80.310 states:

Transportation of Liquor in Passenger Compartment of Vehicle; Restrictions; Exceptions. A person shall not transport or possess any alcoholic liquor in a container which is open, uncapped or upon which the seal is broken, within the passenger compartment of a vehicle in a public place. If the vehicle does not have a trunk or compartment separate from the passenger compartment, a container which is open, uncapped or upon which the seal is broken shall be encased or enclosed.

Because defendant's vehicle was parked in a public place, his arrest pursuant to § 80.310 was lawful. Once defendant was lawfully arrested, Officer Wozniak was free to search him incident to that arrest. United States v Robinson, 414 U.S. 218; 94 S. Ct. 467; 38 L. Ed. 2d 427 (1973); People v Chapman, 425 Mich. 245, 250; 387 NW2d 835 (1986). Moreover, once defendant and his passenger were arrested, the police officers were empowered to conduct a search without a warrant of the entire passenger department of defendant's car and any containers found in the compartment. New York v Belton, 453 U.S. 454, 458-460; 101 S. Ct. 2860; 69 L. Ed. 2d 268 (1981); People v Ragland, 149 Mich. App. 277, 281; 385 NW2d 772 (1986); People v Waddell, 132 Mich. App. 171, 172-173; 347 NW2d 13 (1984). Therefore, the evidence obtained from defendant's person and from the passenger compartment of his vehicle was seized pursuant to a lawful search.

In his final Fourth Amendment challenge to the admissibility of evidence, defendant claims that the search of the trunk was not a valid inventory search and was beyond the scope of a search incident to his arrest. We agree. The search of the trunk was not a valid inventory search, because the officers' purpose was to unearth contraband rather than inventory the vehicle's contents, because the officers failed to follow established departmental procedures for an inventory search, and because their removal of the panel from inside the trunk went far beyond the scope of those procedures. See Colorado v Bertine, 479 U.S. 367, 371; 107 S. Ct. 738; 93 L. Ed. 2d 739 (1985); People v Long (On Remand), 419 Mich. 636, 648; 359 NW2d 194 (1984); People v Russell, 174 Mich. App. 357, 363; 435 NW2d 487 (1989). Moreover, the search of the trunk was not properly within the scope of a search incident to defendant's or his passenger's lawful arrest. See Belton, supra at 460, n 4.

However, the search of the trunk of defendant's car was proper under the automobile exception to the requirement of a search warrant. As recognized by the Supreme Court in United States v Ross, 456 U.S. 798, 825; 102 S. Ct. 2157; 72 L. Ed. 2d 572 (1982), a police officer who has probable cause to believe there is contraband somewhere in an automobile may search the entire vehicle and any containers found therein without first obtaining a warrant. See also People v Cruz, 161 Mich. App. 238, 241-242; 409 NW2d 797 (1987), lv den 430 Mich. 855 (1988). "Probable cause exists when the facts and circumstances warrant a person of reasonable prudence to believe that evidence of a crime or contraband sought is in a stated place." People v Harmelin, 176 Mich. App. 524, 534; 440 NW2d 75 (1989), citing People v Goins, 164 Mich. App. 559, 560; 417 NW2d 499 (1987), lv den 430 Mich. 870 (1988).

When we consider all of the facts and circumstances known to the officers at the time of the search, we are convinced that they warranted a person of reasonable prudence to believe that contraband was hidden somewhere in the vehicle. Defendant and his passenger had been parked in the apartment complex parking lot for some time and under such circumstances as to prompt a citizen to report their suspicious activities to the police. When the officers arrived to investigate the report, defendant's passenger nervously left the car and attempted to conceal the small amount of cocaine he had in his hand. Inside the vehicle, the officers found a fully loaded revolver and drug paraphernalia. When searched, defendant had a telephone pager, a small vial of cocaine with attached silver spoon, and over $2,700 in cash on his person. As the trial court concluded, these facts, in totality, established probable cause to believe that defendant's vehicle contained more contraband. See Harmelin, supra. Because the evidence obtained from defendant's person and car was seized pursuant to a lawful search, it was admissible and properly considered by the magistrate in binding defendant over and by the jury in finding him guilty.

Defendant also contends that the trial court abused its discretion in denying him an adjournment of trial in order to obtain new counsel. A trial court's decision whether to grant or deny a requested continuance is discretionary and will not be reversed absent an abuse of discretion. People v Wilson, 397 Mich. 76, 80; 243 NW2d 257 (1976); People v Sekoian, 169 Mich. App. 609, 613; 426 NW2d 412 (1988), lv den 431 Mich. 870 (1988). In determining whether a trial court has abused its discretion in denying a criminal defendant's request for a continuance, we consider whether: (1) the defendant was asserting a constitutional right; (2) he had a legitimate reason for asserting that right; (3) he was not negligent in asserting it; (4) prior adjournments of trial were not at his request; and (5) on appeal, he has demonstrated prejudice resulting from the trial court's abuse of discretion. Wilson, supra; People v Charles O Williams, 386 Mich. 565, 578; 194 NW2d 337 (1972).

Here, defendant was asserting his constitutional right to counsel of his own choosing. See Charles O Williams, supra at 575; People v Krysztopaniec, 170 Mich. App. 588, 598; 429 NW2d 828 (1988), lv den 432 Mich. 873 (1989). The request for a continuance was based on the alleged breakdown of the attorney-client relationship, which stemmed, at least in part, from defense counsel's lack of success on the suppression motion. However, the trial court considered the motion to be a dilatory tactic by defendant, because it was made on the day of trial. The only basis for his request apparent from the record was the trial court's denial of his suppression motion, and the record indicates that defendant had other reasons for his unhappiness with his attorney well before the date set for trial. As he explained to the court, "Oh, I've been trying to fire him before — or — I mean, for certain reasons I was unhappy." In addition, while defense counsel asserted that they had made no previous requests for adjournments, the trial court's recollection was that there had been several adjournments. The court also noted that the case was the oldest on the docket.

From a consideration of these factors as a whole, we cannot say that the trial court abused its discretion. Moreover, defendant has not asserted any prejudice resulting from the trial court's denial of the requested continuance. Under these circumstances, defendant is not entitled to relief on this claim of error.

Finally, defendant argues that the trial court should have sentenced him pursuant to amended MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii), which became effective on March 30, 1988, after defendant committed the crime and before he was sentenced. The amended statute reduced the minimum term of imprisonment from ten years to five years.

We find no merit to defendant's argument. Generally, a criminal defendant is sentenced according to the statute in force at the time he committed the crime. People v Osteen, 46 Mich. App. 409, 413; 208 NW2d 198 (1973), lv den 390 Mich. 760 (1973); People v Poole, 7 Mich. App. 237, 243; 151 NW2d 365 (1967). An amendment to a criminal statute which concerns sentences or punishment is not retroactive. Osteen, supra; Poole, supra. The Legislature's failure to expressly provide otherwise in amending § 7403(2)(a)(iii) validates defendant's sentence under the version of the statute in effect at the time he committed the crime. See People v Jackson, 179 Mich. App. 344, 351; 445 NW2d 513 (1989). But see People v Schultz, 172 Mich. App. 674; 432 NW2d 742 (1988), lv gtd 432 Mich. 892 (1989).

Affirmed.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.