Opinion
Docket No. 25189.
Decided April 27, 1976.
Appeal from Wayne, James N. Canham, J. Submitted March 12, 1976, at Detroit. (Docket No. 25189.) Decided April 27, 1976.
Mattie D. Sherman was charged with violations of the controlled substance act. These charges were dismissed at the preliminary examination on the basis of an illegal search. The charges were later reinstated by a circuit court order. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Ronald P. Weitzman, Assistant Prosecuting Attorney, for the people.
Benjamin Roth (Carl Ziemba, of Counsel), for defendant.
Before: M.F. CAVANAGH, P.J., and R.B. BURNS and QUINN, JJ.
Defendant appeals from a circuit court judgment which reinstated criminal charges against her. Those charges had been dismissed by the examining magistrate at the preliminary examination on the basis of illegal search.
The circuit court properly held that the search was legal, United States v Johnson, 154 US App DC 393; 475 F.2d 977 (1973). Armed with a proper search warrant authorizing a search for heroin, any other controlled substance, paraphernalia, and "if a police woman present may search woman described below if on premises; may search others present only if in a room where narcotics or paraphernalia in plain view", the police went to the premises named in the warrant. After entry, the police identified themselves to the two persons present, stated they had a warrant and explained it. The police then inquired who lived there, and defendant said that she did. When asked for identification, defendant stated that it was in her purse. The police handed her the purse and requested that she "dump the contents out". Defendant complied with the request and drugs were disclosed. Defendant was arrested and charged with violation of the controlled substance act, MCLA 335.341(4)(a); MSA 18.1070(41)(4)(a).
As stated in Johnson, supra, at 395:
"[F]rustration of the warrant's purpose should not be permitted where the facts reveal that to be the likely result were the purse not searched."
Affirmed.
R.B. BURNS, J., concurred.
I concur. Under the circumstances presented here, unlike United States v Johnson, 154 US App DC 393; 475 F.2d 977 (1973), the search of the purse was a search of defendant's person. However, the warrant in this case authorized both a search of the premises and of defendant's person. Were it not for the warrant's authorization of a search of defendant's person — defendant was the woman described and named in the warrant — the search of defendant's person would have exceeded the scope of a warrant to search premises only and the evidence uncovered as a result of such an illegal search would have had to have been suppressed. The fact that a police woman was not present does not render the warrant's authorization of a personal search inoperative.
Affirmed.