People v. Massey

Michael J.

Kelly, P.J. This Court originally visited this case in a published opinion, 215 Mich App 639; 546 NW2d 711 (1996). The Supreme Court remanded the case to this Court on August 30, 1996, “for reconsideration in light of People v Champion, 452 Mich 92 [549 NW2d 849] (1996).” 453 Mich 872.

We have distinguished the facts in this case from the facts underlying the Supreme Court’s decision in Champion and again reverse.

For the applicable facts see our opinion at 215 Mich App 639.

In People v Champion, supra, the Michigan Supreme Court interpreted the plain feel doctrine. The Court stated that the permissible scope of a patdown search under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), is strictly limited “to that reasonably designed to discover guns, knives, clubs, or other hidden instruments that could be used to assault an officer.” Id., p 99. The plain feel exception to the warrant requirement allows “the seizure without a warrant of an object felt during a legitimate patdown search for weapons when the identity of the object is immediately apparent and the officer has probable cause to believe that the object is contraband.” Id.., pp 99-101 (emphasis in original). The degree of certainty required for plain feel seizures is probable cause. Id., p 108.

In applying the doctrine to the facts of that case, the Court concluded from the totality of the circumstances that the officer had probable cause to believe that a pill bottle tucked inside the defendant’s garment near the groin contained contraband. Id., p 111. The Court found that the following facts supported its conclusion:

(1) The defendant got out of his car and walked away upon seeing the patrol car and uniformed officers, (2) Officer Todd recognized defendant and knew of his previous drug and weapons convictions, (3) the officers were in a high drug crime area, (4) the defendant had his hands tucked inside the front of his sweatpants while walking away from the officers and refused to take his hands out of his sweatpants after being repeatedly asked to do so, and (5) Officer Todd, having had twenty years experience as a police officer, was aware that contraband, and in particular controlled substances, were often carried in the type of pill bottle that he felt on defendant’s person [Id., pp 111-112.]

The Court then concluded:

We cannot imagine that any reasonable person in Officer Todd’s position, given all of the above circumstances, could have concluded that Mr. Champion was carrying prescription medication, or any other legitimate item, in the pill bottle in his groin region. [Id., p 112.]

Here, the facts are significantly different from those in Champion. In Champion, the defendant had gotten out of his car and was walking away when the police caught up to him. Here, the defendant was seated in the passenger side of the car when the police approached it. Indeed, another individual had gotten out of the car and walked into the party store on whose parking lot the car was parked. Defendant made no attempt to follow this other individual. In contrast to Champion, there is no evidence that defendant fled from the police.

In Champion, the officer knew that the defendant had previous drug and weapon convictions. Here, the officer recognized defendant as a schoolmate of his brother, but did not mention any prior drug or weapon convictions.

In Champion, the officers were in a high drug crime area. Here, the officers undertook a routine traffic stop in the area of Patton and Joy Roads in Detroit. There was no testimony regarding whether there was a lot of crime in the area. The driver did not pull over instantly but proceeded into a party store parking lot.

In Champion, the defendant had his hands tucked inside his sweatpants and refused to take his hands out despite being repeatedly asked to do so. Here, there is no evidence of any suspicious behavior by defendant or any evidence of a refusal to cooperate with the police.

In Champion, the officer was aware that contraband was often carried in the type of pill bottle that he felt when he conducted a patdown search of the defendant. That Court held that no reasonable person could have concluded that the defendant was carrying a legitimate item in a pill bottle in his groin region. The Court relied heavily on the fact that the pill bottle had been found in the defendant’s groin area:

We emphasize that courts applying the plain feel exception must appreciate the totality of the circumstances in the given case. [Minnesota v Dickerson, 508 US 366; 113 S Ct 2130; 124 L Ed 2d 334 (1993)] requires an in-depth examination of probable cause. We therefore caution that our holding is limited to the facts before us. For instance, if the pill bottle in Mr. Champion’s possession had been found in his jacket pocket, or if Mr. Champion had not had his hands inside his sweatpants and he had no pockets in which to carry a pill bottle, the result may have been different. [Id., pp 112-113 (emphasis supplied).]

Here, the contraband was found not hidden in defendant’s inner garments, but in the pocket of his jacket. Initially, the officer was not certain of the identity of the lumpy item. He testified:

Q. I’ll get to that next. Okay. All right. But when you patted him down you didn’t know what was in his pocket, did you?

A. I had no idea.

Q. Okay, you had no idea?

A. Right.

Q. Until you took it out of his pocket, correct?

A. When I touched it, I had some idea what it was.

Q. But you didn’t know?

A. I wasn’t sure, right.

Q. So, you had to take it out of his pocket to know what it was, correct?

A. Yes.

The facts in this case are similar to those in Dickerson, swpra, upon which the Champion Court relied. In Dickerson, the Court applied the plain feel doctrine but held that probable cause was not established by the permissible Terry search. The officers had stopped the defendant after he had made seemingly evasive actions upon seeing the police. A patdown search did not reveal any weapons, but did disclose a small lump in the defendant’s jacket. The United States Supreme Court relied on the Minnesota Supreme Court’s finding that “the officer determined that the lump was contraband only after ‘squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket’ — a pocket which the officer already knew contained no weapon.” 508 US 378. Here, on the basis of the totality of the circumstances, the officer did not have probable cause to believe that defendant had contraband until after he pulled the object from defendant’s jacket pocket. Unlike in Champion, here a reasonable person could have concluded that defendant was carrying a lawful item in his jacket pocket.

To revisit the analogy drawn by our brother in his original dissent between a pill bottle and a holster strapped to a suspect’s leg, presumably under his trousers, we believe that a reasonable frisk or a patdown would determine whether such a holster was empty or contained a weapon. We believe that neither the pill bottle analogy nor the holster analogy can be stretched to cover the lump in defendant’s jacket. Had it been in his groin we would probably be persuaded otherwise.

The seizure of the brown paper bag was constitutionally impermissible and evidence of its contents must be suppressed.

Reversed.

Wahls, J., concurred.