People v. Grainger , 117 Mich. App. 740 ( 1982 )

Per Curiam.

Defendant was convicted of carrying a concealed weapon contrary to MCL 750.227; MSA 28.424, at a jury trial held October 6 to 12, 1978, in Wayne County Circuit Court. He was sentenced on November 13, 1978, to two years probation. Defendant appeals by right upon denial of his motion for a new trial.

On April 4, 1978, at approximately 10 p.m., defendant approached the ticket counter of Delta Airlines at Detroit Metropolitan airport. Defendant informed the customer service agent that he had a reservation in the name of David Sims. The agent obtained defendant’s ticket, a one-way ticket to Miami, Florida. Defendant paid for the ticket with cash. It was close to boarding time.

While at the ticket counter defendant checked a briefcase which had a warning sticker. The agent asked defendant if the sticker was a restricted article sticker which had to be cleared through air freight, but the defendant replied it was not. The agent read the sticker which stated, "These premises protected by automatic alarm system from Northern Electric”. The agent then alerted her supervisor, Bob Tolstyka, that the defendant fit the FAA hijacker profile. Mr. Tolstyka explained to defendant that he fell within the guidelines of federal regulations and that it was required that he check defendant’s identity. Defendant could not produce any identification. Mr. Tolstyka then told the defendant that his briefcase would have to be searched. Since the briefcase was small Mr. Tolstyka said it could be put through the x-ray machine at the security checkpoint.

The defendant did not respond in any way but accompanied Mr. Tolstyka to the security checkpoint where Linda Duchesne, a Pinkerton security agent, was operating the machine. The briefcase was passed through the machine. The machine indicated the outline of what appeared to be a gun. Ms. Duchesne pulled the bag out of the machine and went to open it. However, defendant said that it was locked and that he would open it for her. Ms. Duchesne called a police officer over and told him there was a gun in the briefcase. The officer instructed defendant to open the briefcase, and the defendant refused, stating the briefcase was not his but belonged to a friend. Defendant refused to identify himself or the friend to whom the briefcase belonged. The officer x-rayed the bag and saw an outline of a gun. He called the security office and was told to bring the defendant and the briefcase to the office. His supervisor asked the defendant for his name and requested that he open the case. Defendant refused and was placed under arrest. Defendant was read his rights and the briefcase was opened. The briefcase was found to contain a .25 caliber automatic and a wallet with identification in the name of Peter Grant Grainger. The gun was loaded. There was also a gun permit in the briefcase.

Defendant claims that the trial judge erred by denying his motion to suppress the gun seized from his locked, checked luggage because defendant’s briefcase was unconstitutionally seized and searched.

The people maintain that the search and seizure were permissible for two reasons: 1) the defendant has no standing because he denied owning the briefcase so he had no reasonable expectation of privacy; and 2) defendant’s behavior and statements constituted a voluntary consent to the search of his briefcase.

At the suppression hearing held prior to trial, the trial judge found that the evidence should not be suppressed because the defendant had no expectation of privacy in the briefcase since he twice denied that it was his briefcase. Further, the trial judge found that the defendant impliedly consented to the search because he had an opportunity not to take the flight and not to have the briefcase searched, but instead proceeded to the concourse area where the checkpoint was located. Also, the trial judge stated that, considering the circumstances surrounding the search, he believed that the officer acted reasonably. This Court will not reverse a trial judge’s ruling on a suppression motion unless that ruling is found to be clearly erroneous. People v Young, 89 Mich App 753; 282 NW2d 211 (1979), lv den 407 Mich 877 (1979), People v Ulrich, 83 Mich App 19; 268 NW2d 269 (1978).

In United States v Henry, 615 F2d 1223 (CA 9, 1980), the court stated that an x-ray scan is clearly a search and is therefore subject to the requirements of the Fourth Amendment because the x-ray scan system is used as part of a screening system required by the federal government. In Henry, the defendant attempted to check his briefcase, but because he was wearing an ill-fitting wig and a couple of sets of clothing and appeared to be nervous, he was told that the airline had closed the luggage acceptance for that flight and he would have to take the bag to the gate where it could be loaded as checked luggage. At the security checkpoint, the security agent ran the briefcase through the scanner twice. She asked the defendant to open it, but the defendant stated that he did not have a key to open it. Subsequent events led to the opening of the case. With regard to the first x-ray scan, the court found that the scan was a reasonable procedure and that the defendant impliedly consented to it. The court noted that the defendant had not been ordered or compelled to produce the briefcase for the initial scan but was free to take the briefcase and leave the airport or to board without taking or checking the briefcase rather than submit it to the x-ray scan. Further, the court noted that the initial use of the x-ray scan produced no evidence, although it led to the later discovery of evidence, and the x-ray was used only to determine whether a further physical search was indicated.

Henry is factually distinguishable from the case at bar in that the defendant in Henry physically carried the briefcase to the checkpoint himself. In the case at bar the actual carrying was done by Mr. Tolstyka. Nonetheless, defendant herein made no objection and, after accompanying Mr. Tolstyka to the machine where the briefcase was x-rayed, he offered to open the briefcase for Ms. Duchesne. These facts indicate that the initial x-ray scan was done with defendant’s implied consent.

At this point, however, the police officer arrived. The defendant refused to open the briefcase for him, stating that the bag was not his but belonged to a friend of his. The people contend that under these facts the defendant lacks standing to challenge the subsequent search.

The proper test for determining whether a defendant has standing to dispute a search and seizure is whether he has a legitimate expectation of privacy in the searched area. Rakas v Illinois, 439 US 128; 99 S Ct 421; 58 L Ed 2d 387 (1978), People v Wagner, 104 Mich App 169; 304 NW2d 517 (1981).

The trial judge did not err in finding that the defendant had no legitimate expectation of privacy in the briefcase. Defendant disclaimed ownership and therefore had abandoned it. In United States v Canady, 615 F2d 694 (CA 5, 1980), the defendant attempted to take a suitcase on board the plane with him but was asked at two different security checkpoints if his suitcase could be searched. The defendant consented, but when two cylindrical packages wrapped in tape were found, the defendant denied owning the suitcase. When the packages were opened, heroin was found. The court found that a defendant has no legitimate expectation of privacy in an abandoned or unclaimed suitcase. The court based its decision on United States v Colbert, 474 F2d 174 (CA 5, 1973) (en banc), and United States v Anderson, 500 F2d 1311 (CA 5, 1974).

In Colbert, as the police approached two defendants, the defendants set the briefcases they were carrying on the sidewalk and denied that they owned the briefcases. The defendants began to walk away from the officers, leaving the briefcases on the sidewalk. The court found that the defendants had abandoned their briefcases and therefore had no standing to challenge the search.

In Anderson, the defendant was arrested in an airport after having checked certain bags. The police recovered the bags, and the defendant claimed ownership of one of the bags but disclaimed ownership of the other. The bags were searched without a warrant and a pistol and other incriminatory evidence were found in the unclaimed bag. The court found that the pistol and the other evidence were admissible because the defendant had abandoned the bag. Thus, the defendant had no expectation of privacy and lacked standing to challenge the search of the unclaimed suitcase.

In the present case, Duchesne and the police officer testified that the defendant twice denied that the briefcase was his. The defendant told them that it belonged to a friend. To the contrary, the defendant testified at the suppression hearing that he never claimed that the bag was not his. Presented with this conflicting evidence, the trial judge chose to believe Duchesne and the police officer, finding their testimony more credible than the defendant’s. The trial judge is in the best position to judge the credibility of the witnesses. Under these circumstances the trial judge’s finding that the defendant had no legitimate expectation of privacy in the briefcase was not clearly erroneous. Accordingly, the trial judge did not err in denying defendant’s motion to suppress the evidence.

Defendant next claims that his statements to the police officer denying ownership of the briefcase should not have been admitted in evidence because he had not been advised of his Miranda¹ rights. Defendant claims he was sufficiently in custody and the focus of suspicion to require a warning and waiver of his Miranda rights at this point.

We find that, even assuming defendant was in custody, his statement need not have been denied admission because the statements were not the product of interrogation. In People v Benjamin, 101 Mich App 637, 647-648; 300 NW2d 661 (1980), the Court discussed "interrogation”:

"In Rhode Island v Innis, 446 US 291; 100 S Ct 1682; 64 L Ed 2d 297 (1980), the United States Supreme Court addressed the question of what constitutes 'interrogation’ under Miranda. After noting that not all statements obtained by police after a person has been taken into custody are considered products of 'interrogation’ and that volunteered statements of any kind are not barred by the Fifth or Fourteenth Amendments, the Court indicated that 'interrogation’, as contemplated in Miranda, must reflect a measure of compulsion above and beyond that inherent in custody itself. The Court continued:

" 'We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police oflicers that they should have known were reasonably likely to elicit an incriminating response.’ 100 S Ct 1689-1690. (Footnotes omitted; emphasis in original.)”

In a footnote, the Court stated that Innis, supra, also indicated that whether the police officer was aware of any unusual susceptibility of the defendant to any particular form of persuasion, whether by word or deed or that the officer perceived the defendant to be unusually disoriented or upset at the time are factors that may affect the determination as to whether a police practice constitutes interrogation under Miranda.

Defendant’s responses in the case at bar were not the product of custodial interrogation. The defendant was asked to open his briefcase. He responded that the briefcase did not belong to him. It is not apparent from the record that Officer Sumeracki knew or should have known that he was likely to elicit an incriminating response from the defendant. It is customary in an airport setting to ask a person to open his or her suitcase after a suspicious item is detected by the x-ray scanner. The defendant’s response, that the briefcase did not belong to him, appears to be a voluntary, unsolicited statement to the police officer’s request to open the briefcase and thus was admissible in evidence.

Defendant next claims that the prosecutor should not have been allowed to argue the validity of defendant’s concealed weapons permit to the jury. We agree.

At trial, the prosecutor was allowed to introduce evidence for the purpose of establishing that defendant’s concealed weapons permit had been revoked prior to the date of the offense. Testimony showed that a letter was sent by the Oakland County Concealed Weapons Licensing Board to the address listed on defendant’s permit application giving defendant notice to appear at a permit revocation hearing. The notice stated that failure to appear would result in automatic revocation of the permit. Defendant did not appear and his license was revoked as of September 13, 1977. The notice of hearing was later returned as undeliverable. By further testimony the prosecutor attempted to imply that defendant resided at the address but refused delivery of the notice.

On April 24, 1978, defendant filed suit against the licensing board concerning the revocation of his concealed weapons permit. A hearing was held at which the licensing board was represented by corporation counsel and the issue was argued.

On September 29, 1978, an order signed by the circuit court judge was entered. Defendant’s permit was thereby restored nunc pro tunc to September 13, 1977. The order further stated that the licensing board’s revocation of defendant’s permit on September 13, 1977, was set aside and held for naught, apparently due to lack of proper notice to defendant.

At the trial of the case at bar the jury was instructed that it was to determine whether defendant’s license was revoked at the time of the offense, as contended by the prosecutor, or whether it was valid and in full force, as argued by defendant. With respect to the Oakland County Circuit Court order the jury was instructed as follows:

"I instruct you that you may determine based on Oakland County Circuit Judge Robert Templin’s order of September 29, 1978, Exhibit #16, that the defendant’s gun permit was never revoked.”

We find that it was error for the judge to submit to the jury the question of the validity of the license. The prior circuit court order had already determined that the permit was not revoked. The jury could not otherwise determine the issue.

The doctrine of collateral estoppel precludes relitigation of an issue in a subsequent suit involving the same parties based upon a different cause of action. Topps-Toeller, Inc v Lansing, 47 Mich App 720, 727; 209 NW2d 843 (1973). Although the prior circuit court case involved the licensing board, whereas the present case involves the Wayne County Prosecutor, these parties are sufficiently identical for purposes of application of collateral estoppel. Each is a creature of the same sovereign, the State of Michigan. See People v Watt, 115 Mich App 172; 320 NW2d 333 (1982).

The error requires reversal and a new trial in this case. Two theories of guilt were submitted to the jury: (1) that defendant had a invalid permit, and (2) that defendant had a valid permit but was carrying the gun in violation of certain license restrictions. The first theory, we have held, should not have been submitted to the jury.

The second theory, that defendant had a valid permit but was carrying the gun in violation of the license restrictions, was proper grounds for conviction of defendant. The permit authorized carrying the gun "for business, bank and home, hunting and target”. Defendant contended that he was going to Florida on a business trip and the license allowed him to carry the gun for business purposes. The testimony of defendant’s employer supported his claim. He testified that he sent defendant to Florida to attend a business meeting in his place. However, other evidence established that defendant purchased a one-way ticket, traveled under an assumed name, paid for the ticket with cash, and denied ownership of the briefcase. These facts could indicate that the defendant was not traveling to Florida for business purposes.

Evidence further established that, although the gun permit allowed defendant to use the gun for the purpose of carying large amounts of money from his place of business to the bank or his home, defendant had not been asked by his employer to carry a large amount of money to Florida. Therefore, even if the jury believed that defendant was going to Florida on business, it could have found that the gun was being carried outside the confines of the license restrictions, since large amounts of money were not involved in the trip. Sufficient evidence was adduced to convict defendant under the prosecution’s second theory.

Where one of two alternative theories of guilt is legally insufficient to support a conviction, and where it is impossible to tell upon which theory the jury relied, the defendant is entitled to a .reversal of his conviction and a new trial. People v Olsson, 56 Mich App 500, 505; 224 NW2d 691 (1974). Such is the case here. The second theory would support a conviction, the first would not. We cannot tell upon which theory the jury relied.

Accordingly, defendant’s conviction is reversed and the case is remanded for a new trial in accordance with this opinion.

1 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).