Opinion
Docket No. 78-3910.
Decided November 5, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.
Colista, Green, Green Adams (by Richard C. Kaufman), for defendant.
Defendant was charged with possession of 20 purple tablets containing phencyclidine in violation of the Controlled Substances Act, MCL 335.341(4)(b); MSA 18.1070(41)(4)(b).
After preliminary examination, defendant was bound over for trial on the charge. Defendant filed a written motion to suppress the evidence and to quash the information, which was granted after oral argument.
The prosecution appeals, and the matter is before this Court on grant of the application for delayed appeal.
The facts are that on June 10, 1977, at approximately 8 p.m., two officers, driving a marked patrol vehicle, observed an automobile approaching from the opposite direction. The approaching vehicle had a damaged windshield, with cracks apparently obscuring the driver's vision. The vehicle was pulled over for this traffic ordinance violation.
Upon approaching the vehicle, one of the officers observed two half quart beer cans lying on the floor of the car, one in front of the passenger and one in front of defendant driver. Each can was open. The officer asked the men to hand him the cans, which they did. He discovered the cans were half full of beer and ordered the occupants out of the vehicle and placed them under arrest for transporting open intoxicants in a vehicle.
After conducting a pat-down search for weapons, the officer felt an object in defendant's right front pocket. He removed the object, which was a plastic container labeled "Vanquish". The officer found some 20 purple capsules within it. Knowing that Vanquish capsules are white, the officer placed defendant under arrest and delivered the capsules to the narcotics laboratory where they were determined to be phencyclidine, a schedule 3 controlled substance, MCL 335.318(1)(b); MSA 18.1070(18)(1)(b), the possession of which constitutes a 2-year felony by virtue of the above-cited statute.
As indicated, the trial judge granted defendant's motion to suppress the evidence and quash the information, finding the officer's action to constitute an unreasonable search and seizure. We disagree and reverse.
The facts in the instant case disclose a search incident to a full custodial arrest for a traffic offense. The right to search incident to a lawful arrest is within the bounds of the Fourth Amendment. The search conducted in the instant matter was a valid exercise of that right. See People v Garcia, 81 Mich. App. 260, 273-278; 265 N.W.2d 115 (1978), (J.H. GILLIS, J. dissenting), People v Cavitt, 86 Mich. App. 59, 62-63; 272 N.W.2d 196 (1978), (BASHARA, J., dissenting).
Reversed and remanded for trial.
R.M. RANSOM, J., concurred.
I respectfully dissent.
I accept the correctness of the recitals of fact contained in the majority opinion.
In reviewing a trial court's order to suppress evidence and dismiss the charges, this Court applies a "clearly erroneous" standard. A finding is "clearly erroneous" when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been made.
People v Goss, 89 Mich. 598; 280 N.W.2d 608 (1979), People v Ulrich, 83 Mich. App. 19; 268 N.W.2d 269 (1978), People v Robertson, 81 Mich. App. 446; 265 N.W.2d 365 (1978), People v Terrell, 77 Mich. App. 676; 259 N.W.2d 187 (1977).
People v Goss, supra, People v Hummel, 19 Mich. App. 266, 270; 172 N.W.2d 550 (1969).
In this case, I do not find the trial court's analysis and findings in conflict with the decisions of this Court in People v Garcia, People v Cavitt, or People v Strong. While recognizing that, like the three cited cases, this is also a close case, I would not find the trial court's decision clearly erroneous. Consequently, I would affirm.
81 Mich. App. 260; 265 N.W.2d 115 (1978).
86 Mich. App. 59; 272 N.W.2d 196 (1979).
77 Mich. App. 281; 258 N.W.2d 205 (1977).