Opinion
SC 166794 COA 357699
10-11-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. CLAUDELL TURNER, Defendant-Appellee.
Oakland CC: 2021-276333-FH
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
On order of the Court, the application for leave to appeal the January 25, 2024 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
VIVIANO, J. (dissenting).
I dissent from the Court's decision to deny leave in this case and instead, for the reasons below, would reverse the Court of Appeals.
The Court of Appeals clearly erred by holding that the police officers in this case unlawfully seized a digital scale that was located in the crotch area of defendant's pants. No one disputes that the officers here were conducting a valid investigatory stop and patdown search for weapons under Terry v Ohio, 392 U.S. 1 (1968). See People v Champion, 452 Mich. 92, 98 (1996) (noting that under Terry, "[p]olice officers may make a valid investigatory stop if they possess 'reasonable suspicion' that crime is afoot."); id. at 99 ("An officer who makes a valid investigatory stop may perform a limited patdown search for weapons if the officer has reasonable suspicion that the individual stopped for questioning is armed and thus poses a danger to the officer.").
Therefore, the only issues in this case are whether the officer conducting the patdown search exceeded the permissible scope of a patdown search under Terry and, if not, whether the digital scale hidden in defendant's pants could lawfully be seized under the plain view doctrine.
Concerning the first issue, the permissible scope of a patdown search under Terry is limited "to that reasonably designed to discover guns, knives, clubs, or other hidden instruments that could be used to assault an officer." Id. at 99, citing Adams v Williams, 407 U.S. 143, 146 (1972). In this case, the officers received information that a person matching defendant's description was brandishing a pistol. The officers conducted a traffic stop when they saw defendant driving at a high rate of speed in a vehicle that also matched the description that they were given. As they approached, the officers observed defendant making furtive movements and asked him to exit the vehicle. As he did so, the officer observed a foreign bulge in the crotch area of defendant's pants that appeared to be the butt or handle of a small handgun. When patting down the exterior of defendant's pants, the officer felt a hard plastic object. Then, the officer pulled defendant's waistband out from his waist and observed a black digital scale.
The officers did not exceed the permissible scope of a Terry patdown search because they were given information that defendant had a weapon, they observed a foreign bulge that appeared to be a pistol in the crotch area of his pants, and the officer felt a hard plastic object when performing the patdown search. Under those circumstances, it was objectively reasonable for an officer to believe that the item could likely be a weapon. As a result, the officer could lawfully look inside defendant's clothes to determine whether the hard object was a dangerous weapon. See 4 LaFave, Search &Seizure (6th ed), § 9.6(c) (collecting cases holding that the presence of a hard object supports a further search under Terry to determine whether the object is a weapon); see also United States v Swann, 149 F.3d 271, 276 (CA 4, 1998) (upholding a search of the interior of clothing based on "[t]he location of the object in the sock, as well as its hard character and its shape").
Of course, if the officer feels an object that dispels the officer's initial concern that it might be a weapon or that does not otherwise support a reasonable suspicion that the object is a weapon, then no further intrusion is warranted. See generally Terry, 392 U.S. at 26, 29 (holding that a protective search is lawful when it is "necessary for the discovery of weapons which might be used to harm the officer or others nearby" and is "reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer"); see also Champion, 452 Mich. at 98-99.
The second issue is whether, after the officer lawfully looked inside defendant's pants and observed the digital scale, the officers could lawfully seize the scale. On this point, the Court of Appeals majority clearly erred, holding that the seizure was unlawful because Terry only justifies searches for weapons, not contraband. However, once the officer saw the scale that was hidden in defendant's crotch, he need not rely on Terry to justify seizing the scale. Under the plain view doctrine, a police officer may "seize, without a warrant, items in plain view if the officers are lawfully in a position from which they view the item, and if the item's incriminating character is immediately apparent." Champion, 452 Mich. at 101. The lawful observation of the scale and its location in defendant's crotch provided probable cause that defendant was committing a crime by possessing drug paraphernalia. See Pontiac Municipal Code, § 86-117(c)(2) (prohibiting the possession of drug paraphernalia); and § 86-117(a)(3) (defining "drug paraphernalia" to include "[a] weight scale . . . specifically designed for use in weighing or measuring a controlled substance"). Seizure of the scale was therefore lawful as evidence of that crime.The Court of Appeals majority's holding to the contrary suggests that officers must ignore contraband that is lawfully observed in plain view, even if that observation provides probable cause to arrest the suspect and seize the contraband. The Fourth Amendment does not require that outcome.
See MCL 764.15(1)(a) ("A peace officer, without a warrant, may arrest a person . . . [if an] ordinance violation is committed in the peace officer's presence."). It is a closer question whether the officer lawfully seized cash from defendant's pocket prior to the seizure of the scale because the officer testified that he had no idea what was in defendant's pocket. In any event, because the scale was lawfully seized, discovery and seizure of the cash would have been inevitable as part of a search incident to a lawful arrest. See People v Hughes, 506 Mich. 512, 525 (2020) (observing that "the 'search incident to a lawful arrest' exception to the warrant requirement . . . generally allows police to search and seize items (including closed containers) located on a person during a lawful arrest").
I respectfully dissent and would reverse the Court of Appeals.