People v. Walker

58 Mich. App. 519 (1975) 228 N.W.2d 443

PEOPLE
v.
WALKER

Docket No. 19185.

Michigan Court of Appeals.

Decided February 12, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and Richard G. Bensinger, Assistant Appellate Counsel, for the people.

Joseph B. Szeremet, Assistant State Appellate Defender, for defendant.

Before: DANHOF, P.J., and McGREGOR and WALSH, JJ.

WALSH, J.

The defendant was found guilty by a jury of the offense of possession of heroin, contrary to MCLA 335.341(4)(a); MSA 18.1070 (41)(4)(a), and was sentenced to serve 2 to 4 years in prison. He appeals as of right and asserts four assignments of error. None requires reversal.

On November 26, 1972, at about 4:50 a.m. two police officers driving on Eight Mile Road in Oak Park observed the defendant slumped over the wheel of his car, which was parked with the motor running in a parking lot adjacent to a motel. The officers pulled into the lot, approached the vehicle and aroused the defendant, who appeared to be either unconscious or asleep. The officers questioned the defendant briefly about what he was doing there and also asked him to produce an operator's license.

The defendant was questioned further as to the identity of a white substance observed around his nostrils. In response defendant indicated that he had been snorting cocaine earlier in the day.

The officers then took the operator's license and utilized the LEIN (Law Enforcement Information Network) computer system to determine if there were any outstanding warrants for the defendant's arrest. The record check revealed an outstanding warrant for non-support and the defendant was arrested on that charge and immediately transported to the Oak Park police station.

During the course of the booking procedure at the police station the defendant was subjected to a routine inventory search prior to being placed in the cell block. As he was pulling his shirt over his head, one of the officers observed a shiny piece of tinfoil folded into the defendant's hair. The tinfoil was seized and opened up by one of the police officers and found to contain a white powder substance later identified as heroin. The amount was determined to be approximately 6.3 grains (.4 grams).

The defendant first contends that the initial police contact violated his Fourth Amendment rights and that any evidence obtained subsequent to the parking lot encounter, including the tinfoil packet found at the police station, should therefore have been rendered inadmissible. Mapp v Ohio, 367 U.S. 643; 81 S. Ct. 1684; 6 L. Ed. 2d 1081 (1961); People v LaGrange, 40 Mich. App. 342; 198 NW2d 736 (1972).

The defendant refers us to a long series of state and Federal decisions in support of his general contention that the behavior which aroused the police officer's suspicion did not warrant investigatory intrusion in the form of a record check which eventually revealed the existence of the non-support warrant for which he was arrested.

However, not every encounter between a law enforcement official and a private citizen is a "stop" for Fourth Amendment purposes. The law recognizes an important factual/constitutional distinction drawn between arrests based on probable cause and street investigations which may ultimately lead to arrests. See People v Rivers, 42 Mich. App. 561, 567; 202 NW2d 498 (1972).

With this distinction in mind we proceed to analyze the police activity in the instant case. After observing a human form slumped over the steering wheel of an automobile (which was parked in a hotel parking lot at 4:30 in the morning with the motor running) the officers' first step was to approach the vehicle and arouse the defendant. Next they asked him what he was doing there and for his operator's license. When, in response to police questioning, the defendant identified a white substance around his nostrils as cocaine, the officers took the defendant's driver's license and conducted a warrant check through the LEIN system.

The action taken by the police officers here is, for purposes of the Fourth Amendment, comparable to the momentary police-community contact approved in People v Rivers, supra. Quoting from United States v Lee, 271 A2d 566 (DC, 1970), the Court said:

"``Revealed here is the kind of momentary contact which is and must be recognized as necessary to a sound police-community relationship and its commensurate effective law enforcement.'" Rivers, supra, at pp 568-569.

The allegation made by defendant that the warrant check was utilized merely to gain some information on which to base an arrest is entirely meritless. A LEIN check is an unobtrusive investigative tool employed by the police to retrieve information regarding an individual's driving record and to determine whether there are any outstanding warrants for his arrest — all matters of public record. As such, a LEIN check does not involve an unlawful disregard for individual liberties.

The next contention made by the defendant is that the tinfoil packet found by the police officers was obtained as a result of an illegal search. It is well established that "information obtained by a police officer through the exercise of his senses as he observes articles being removed by a prisoner from his pockets and transferred to a receptacle for safekeeping is not information obtained as a result of a search". People v Henry Robinson, 388 Mich. 630, 632-633; 202 NW2d 288 (1972). See also People v Terrance Carter, 43 Mich. App. 735; 204 NW2d 703 (1972). But it is urged by the defendant that the opening of the tinfoil packet constituted a search for which a warrant was required.

Basic to every analysis of a search and seizure issue is the rule that warrantless searches are "per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions". Coolidge v New Hampshire, 403 U.S. 443, 454-455; 91 S. Ct. 2022, 2032; 29 L. Ed. 2d 564, 576 (1971). And where a custodial search is preceded by a lawful arrest, this intrusion is "not only an exception to the warrant requirement of the Fourth Amendment, but is also a ``reasonable' search under that Amendment". United States v Robinson, 414 U.S. 218, 235; 94 S. Ct. 467, 477; 38 L. Ed. 2d 427, 441 (1973).

In Michigan, contrary to many other jurisdictions,^[1] jailhouse inventory searches are viewed as incident to incarceration and not as incident to the arrest. See People v Dixon, 392 Mich. 691, 706-707; 222 NW2d 749 (1974). The distinction is not merely a semantic one. In the case at hand, for example, the removal of the tinfoil was done during the course of a "customary procedure" requiring the arrestee to remove and deposit his personal effects with custodial officials. See People v Henry Robinson, supra. Such a procedure, where the arrestee's belongings are properly inventoried and stored, is designed to prevent the introduction of weapons and contraband within the detention facility and is a protective measure for police and prisoner alike.

Such an examination and inventorying of an arrestee's personal effects which takes place at the police station and not at the scene of arrest — and at some time remote from the arrest — can hardly be justified under the traditional concept of being incident to the arrest. Here the legality of the seizure of the tinfoil packet rests upon a properly conducted custody search required for the safety of the prisoner and of law enforcement personnel.

The subsequent opening of the packet does not remove this particular search from the protective scope of the jailhouse-inventory exception to the warrant requirement. It would be naive and pointless to assume that law enforcement officials may store an arrestee's personal effects without first determining what it is they are inventorying.

It should be noted that in sustaining the validity of the instant search this Court is not unmindful of People v Trudeau, 385 Mich. 276; 187 NW2d 890 (1971), cert den 405 U.S. 965; 92 S. Ct. 1169; 31 L. Ed. 2d 240 (1972), and United States v Edwards, 415 U.S. 800; 94 S. Ct. 1234; 39 L. Ed. 2d 771 (1974), which were not cases involving an inventory search of the type at issue here. Nor does People v Dixon, supra, control here, since the defendant in that case was not lawfully in custody at the time of the search and since he had already been subjected to a weapons frisk at the scene of the arrest.

The defendant next asserts for the first time as error that the prosecution failed to prove possession of a usable amount of heroin and that his conviction should therefore be reversed on the authority of People v Harrington, 33 Mich. App. 548; 190 NW2d 343 (1971).^[2] Even if the issue were properly preserved for appellate review, the contention is unrealistic in light of this Court's pronouncements in People v Stewart, 52 Mich. App. 477; 217 NW2d 894 (1974), and People v Eugene Harris, 43 Mich. App. 531; 204 NW2d 549 (1972). It is sufficient to note that the defendant here was found to have been in possession of approximately 6.3 grains (.4 grams) of heroin, which is clearly a usable amount sufficient to sustain his conviction for possession.

Finally the defendant maintains that the trial judge's instruction to the jury that they find the defendant innocent of the offense charged before proceeding to the lesser included offenses was coercive, unduly restrictive and therefore reversible error. People v Ray, 43 Mich. App. 45; 204 NW2d 38 (1972), is cited in support of this contention.

The trial court instructed the jury as follows:

"So you will have these three charges to consider when you retire to your deliberations in the jury room. First, the charge — the initial charge — unlawful possession of narcotics. Second, attempted unlawful possession of narcotics. And third, use of narcotics."

* * *

"To repeat, there is one of four possible verdicts in this case. First, that the Defendant is guilty as charged of possession — unlawful possession — of narcotics. If not that, second, he may be guilty of the included offense of attempted unlawful possession of narcotics. If not that, the third included offense, he may be guilty of use of narcotics. And the fourth possible verdict, of course, is not guilty.

"I will repeat. You have one of four possible verdicts. I'll start with not guilty first, just not guilty. Number 2, guilty of the main charge, unlawful possession of narcotics. If you find him not guilty of that, consider the included offenses; attempted unlawful possession of narcotics or use of narcotics."

This language, unlike that used in Ray, did not require unanimous agreement on defendant's innocence of the offense charged before the lesser offenses could be considered and was therefore entirely proper. People v Robert Hall, 56 Mich. App. 10; 223 NW2d 340 (1974); People v James, 51 Mich. App. 777; 216 NW2d 473 (1974).

Affirmed.

NOTES

[1] See Annotation, Modern status of rule as to validity of nonconsensual search and seizure made without warrant after lawful arrest as affected by lapse of time between, or difference in places of, arrest and search, 19 ALR3d 727.

[2] Lv den, 385 Mich. 775 (1971).