People v. Chapman , 142 Mich. App. 179 ( 1984 )

Per Curiam.

Defendant was charged with two counts of possession of a controlled substance, MCL 333.7403(2)(b); MSA 14.15(7403)(2)(b). The lower court suppressed the evidence and dismissed the charges. The prosecution now appeals by leave granted.

At the preliminary examination, the arresting officer testified that he stopped the defendant’s vehicle because the windshield was cracked. The officer then learned that defendant was wanted on an outstanding traffic warrant and that his license had been suspended. The officer placed defendant under arrest and patted him down. During the search, the officer discovered a vial on the left waistband-hip area of defendant’s trousers. The officer seized the vial which turned out to be a pill bottle with a prescription on it in defendant’s name. The officer could not see into the vial, so he opened it up and discovered that it contained a controlled substance. Based on this testimony, the magistrate determined that the police officer should have obtained a warrant before opening the pill bottle and therefore suppressed the evidence. The prosecutor appealed to the Recorder’s Court of Detroit, which affirmed the magistrate’s determination. The prosecutor sought leave to appeal to this Court, but leave was denied. The prosecutor then sought leave to appeal to the Supreme Court, which, in lieu of granting leave to appeal, remanded the case to the Court of Appeals for consideration as on leave granted, 419 Mich 903 (1984).

On appeal, the prosecutor argues that, since the magistrate applied federal law, the Recorder’s Court erred in considering a mixture of federal and state law. Even assuming that the prosecutor is correct in asserting that the magistrate based her decision on federal law and that the Recorder’s Court based its decision on a mixture of federal and state law, the prosecution misplaces its reliance on Michigan v Long, 459 US 904; 103 S Ct 3469; 77 L Ed 2d 1201 (1983). The portion of Long, supra, that the prosecution relies on was solely concerned with the jurisdiction of the United States Supreme Court’s review of a state decision. In Long, the U. S. Supreme Court did not hold that the law applied by a lower state court is binding upon and controls the scope of review by a higher state court. The Recorder’s Court therefore properly considered People v Dixon, 392 Mich 691; 222 NW2d 749 (1974). In Dixon, the Supreme Court held that when a defendant is entitled to immediate bond under the interim bail statute, MCL 780.581; MSA 28.872(1), police officers do not have the right to conduct an inventory search pursuant to taking the defendant into custody. The officer may however search for a weapon and, if the officer uncovers obvious contraband during the search, he may seize it. The pills in the instant case were in a bottle labeled with a prescription. The officer could not see into the pill bottle to determine whether it contained contraband. This was not obvious contraband and the officer should not have searched into the bottle. If the officer could have seen into the pill bottle without opening it and noticed that the bottle contained contraband, the officer could seize it. People v Moore, 391 Mich 426; 216 NW2d 770 (1974). This was not the situation in the instant case. The lower courts did not err.

Affirmed.