Opinion
No. 104865.
November 15, 1996.
Leave to Appeal Denied November 15, 1996:
reported below: 213 Mich. App. 494.
I would grant leave to appeal to consider the claim of ineffective assistance of counsel.
I
The police received a tip that two black men were selling drugs in front of Detroit's Greyhound station. One was identified as wearing a green denim outfit; no description was given of the other man. When police arrived they saw defendant sitting next to a man dressed in green. The men were inside the terminal (the tip said they were in front) and no suspicious activity was going on.
The officers approached the defendant and the man in green, who had both gotten up and were attempting to walk past the officers. The police asked to speak to each of the men. As defendant got up to walk over to the officer, he put a brown carry-on bag he had been carrying underneath his seat.
The officers questioned the men separately, with defendant admitting being with the man in green while the man in green claimed to be alone. The officers took the men out to the front of the bus depot and asked each separately if he was buying or selling or doing anything with drugs. The defendant denied selling cocaine but admitted to having a marijuana "bud" in his sock. He was arrested, and the officer searched the brown carry-on bag, finding approximately 124 grams of cocaine in the bag.
The defendant moved in the Court of Appeals for a remand for a Ginther hearing, arguing that his trial counsel should have filed a motion to suppress. The remand was granted, but the judge found counsel was not ineffective. The Court of Appeals affirmed.
People v Ginther, 390 Mich. 436 (1973).
II
The defendant contends that his counsel was ineffective in failing to file a motion to suppress. Defendant contends that the initial questioning was not based on reasonable suspicion. The police had an unconfirmed anonymous tip about drug selling at the bus station, but did not observe selling when they arrived. The police did not undertake surveillance for conduct in conformity with a profile or otherwise check to determine if the defendant, or the man in green, was doing anything consistent with drug selling.
Defendant also contends that the officers' admission that defendant was not free to leave while they were "investigating" requires a finding of custodial interrogation. He further contends that a reasonable person would not have felt free to leave after the officers asked him for identification and required him to empty his pockets when he said he had none on him. Without Miranda warnings, his confession to possessing a marijuana "bud" was illegally obtained and the search of the bag was fruit of the poisonous tree.
Miranda v Arizona, 384 U.S. 436 (1966).
Finally the defendant contends that the search of the bag was not a valid search incident to arrest. The defendant was out of reach of the bag at the time of the arrest for marijuana possession, and the officers could not have feared he would grab a weapon out of the bag or destroy any evidence in it. The bag was not within his reach or immediate control, as required by Chimel v California, 395 U.S. 752 (1969). The officers retrieved the bag and brought it within defendant's reach; this was improper circumvention of search-incident doctrine.
I concur in the statement of Justice LEVIN.
Reconsideration denied January 31, 1997.