Opinion
Docket No. 77352.
Decided February 4, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and A. George Best II, Assistant Prosecuting Attorney, for the people.
Richard H. Morgan, Jr., for defendant.
Defendant was originally charged with carrying a weapon in a motor vehicle, MCL 750.227; MSA 28.424, and possession of cocaine, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv). Defendant moved to have the evidence suppressed and, following an evidentiary hearing, the trial court granted defendant's motion. Defendant then moved to have the charges dismissed, which the court granted on the grounds that there was no longer any corpus of the crime. The prosecutor now appeals the trial court's order granting defendant's motion to suppress. We reverse, and reinstate the charges against defendant.
The facts leading up to defendant's arrest are as follows. A security guard on duty at the Merrill Drug Store witnessed two men arguing vehemently outside the front doors of the store. The security guard identified defendant as one of the men arguing. The second man, who acted very frightened, indicated that he wanted to enter the store but was not allowed in. Defendant then pushed the second man, entered a white foreign car and drove away. After defendant drove off, the second man told the security guard that defendant had a gun and was going to kill him. The man then ran off in the opposite direction from that taken by defendant. The security guard did not see the gun. He did, however, call the police, and informed the officers of what he saw and what the second man had told him. Approximately 15 minutes later, while talking to the officers, the security guard indicated that a white foreign car which was then driving by was the same car in which defendant had earlier driven away.
The officers followed defendant and pulled him over. Before defendant exited from his car, he reached over and placed something in the glove compartment. The officers patted defendant down looking for the gun and asked for defendant's license and car registration. Defendant was placed under arrest after he failed to produce a license or registration. While defendant was being patted down for weapons, the other officer opened the glove compartment and discovered a .32-caliber handgun. A full search of the car and of defendant's person later turned up cocaine, a large amount of cash and blank prescription pads.
Before we turn to the issue presented, it is necessary to state that this case does not involve a search incident to the lawful arrest of defendant for failing to possess either a license or registration. See, New York v Belton, 453 U.S. 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981); People v Cavitt, 86 Mich. App. 59; 272 N.W.2d 196 (1978). The officers in the instant case testified that they opened the glove compartment and looked around the front seat before knowing that defendant did not have his license. The officers clearly stated that they were looking for the gun defendant supposedly had and which they did not find while patting him down.
We believe that this case is governed by Michigan v Long, 463 U.S. 1032; 103 S Ct 3469; 77 L Ed 2d 1201 (1983). In Long, defendant was arrested and convicted of possession of marijuana. Two officers investigated after defendant's car swerved into a shallow ditch. The officers observed a knife on the floorboard of the driver's side of the car and subjected defendant to a protective frisk which revealed no weapons. One officer continued to examine the front seat of the car looking for possible weapons and noticed something protruding from under the armrest. The officer knelt in the vehicle, lifted the armrest and examined an open pouch which contained marijuana. Defendant was then arrested, and the interior of the car was searched. The officers decided to impound the vehicle, and one officer opened the trunk revealing approximately 75 pounds of marijuana.
The United States Supreme Court remanded for a determination of whether the inventory search of the trunk was permissible. Our Supreme Court recently answered this question in the negative, holding that the search of the trunk violated the requirements of South Dakota v Opperman, 428 U.S. 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976). People v Long (On Remand), 419 Mich. 636; 359 N.W.2d 194 (1984).
On appeal, this Court affirmed defendant's conviction, holding that the precautionary lifting of the armrest was constitutionally valid as a reasonable protective search. People v Long, 94 Mich. App. 338; 288 N.W.2d 629 (1979). Our Supreme Court reversed, holding that the search of the car's interior was not justified and that the marijuana in the trunk was the fruit of an illegal search. People v Long, 413 Mich. 461; 320 N.W.2d 866 (1982).
The United States Supreme Court reversed our Supreme Court, holding that the protective search of the passenger compartment was reasonable under the principles articulated in Terry v Ohio, 392 U.S. 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). In Terry, the Court held that when the officer has a reasonable belief "that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm". Id., p 24; see, also, Adams v Williams, 407 U.S. 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972). Relying on Terry and Williams, the Court in Long held:
"These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. * * * `[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' Id. [Terry], at 27, 20 L Ed 2d 889, 88 S Ct 1883, 44 Ohio Ops 2d 383. If a suspect is `dangerous,' he is no less dangerous simply because he is not arrested. If, while conducting a legitimate TERRY search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances." (Footnote omitted.) 463 U.S. ___; 103 S.Ct. 3480-3481; 77 L Ed 2d 1220.
We believe that, under the facts of this case, the officers possessed an articulable and objectively reasonable belief that defendant was potentially dangerous. At the time defendant was stopped, the police had a reasonable belief that defendant had a gun in his possession and had threatened the life of the person he was fighting with at the drug store. The officers reasonably relied on the information given to them by the store security guard who later testified at defendant's suppression hearing. See, Adams v Williams, supra. The officers witnessed defendant placing something in the glove compartment prior to exiting from the vehicle. The officers stopped defendant for questioning and searched the glove compartment based solely upon their belief that defendant had a dangerous weapon. See Michigan v Long, supra, fn 16, 463 US ___; 103 S Ct 3482; 77 L Ed 2d 1221.
We therefore reverse the trial court and reinstate the charges against defendant.
Reversed and remanded.