People v. Robertson , 81 Mich. App. 446 ( 1978 )

81 Mich. App. 446 (1978) 265 N.W.2d 365

PEOPLE
v
ROBERTSON

Docket No. 77-102.

Michigan Court of Appeals.

Decided February 22, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Research, Training and Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

John C. Mouradian, for defendant.

Before: BEASLEY, P.J., and D.E. HOLBROOK, JR. and M.J. KELLY, JJ.

M.J. KELLY, J.

Plaintiff appeals from a trial court order granting defendant's motion to suppress evidence and dismiss the proceedings.

Defendant was charged with carrying a pistol in a motor vehicle, contrary to MCLA 750.227; MSA 28.424. The evidence presented below at the preliminary examination revealed circumstances under which a limited protective search was allowable.

The arresting officer testified that on September 29, 1976, at approximately 2 a.m., he and his partner were conducting a routine scout car patrol in the area of John R. and Erskine in the City of Detroit. He observed a green Maverick, in which defendant was a passenger, double-parked on Erskine. The occupant of the Maverick appeared to be talking to two black males in a blue Thunderbird. The officer turned his patrol car around to investigate. Upon seeing the patrol car, apparently the driver of the Maverick made a U-turn on Erskine and sped away. The officer pursued the Maverick at a speed of 45-50 miles-per-hour in a 25 mile-per-hour zone, finally pulling the car over. The driver of the car was unable to produce a driver's license or car registration, whereupon she was arrested for driving without a license.

Defendant was seated in the right rear passenger's seat. As the driver exited the vehicle, the officer observed defendant take a dark-colored object from the right waistband of his pants. Defendant placed the object in a hole, approximately four inches in diameter, where a radio speaker had once been installed. The officer then ordered defendant and a front seat passenger out of the car. He then proceeded to conduct a search of the car, limited to the area of the rear seat where he had observed defendant drop the object. The only object found in the hole was a .32-caliber blue steel automatic, which defendant did not have a permit to carry. The pistol and a live round of ammunition were taken as evidence.

The trial court order suppressing the pistol will be affirmed by this Court unless we find the trial court to be clearly erroneous in granting defendant's motion. People v Terrell, 77 Mich. App. 676, 679; 259 NW2d 187 (1977). We hold that the trial court ruling was clearly erroneous. Under the circumstances the only sensible thing for a police officer was to determine if the object dropped in the well hole was a weapon that could be used against him or illegal contraband. A furtive gesture in removing from the waistband and secreting a dark colored object, in a high crime area, in the early hours of the morning, after a lawful stop, should not result in suppression of a loaded pistol.

Furthermore, the defendant and his companions rapidly departed from the scene where they were first observed by the police, apparently upon seeing the police turn around and come in their direction. Cf. People v Nelson Pitts, 40 Mich. App. 567, 576; 199 NW2d 271 (1972), lv den, 388 Mich. 791 (1972), People v Evans, 3 Mich. App. 1; 141 NW2d 668 (1966). This apparently evasive action, coupled with the furtive actions of defendant, is sufficient evidence to justify the limited protective search. Certainly, the facts and circumstances involved more than a mere furtive gesture on the part of defendant. See generally People v Terrell, supra, People v Hall, 40 Mich. App. 329, 337; 198 NW2d 762 (1972), Pennsylvania v Mimms, 434 U.S. 106; 98 S. Ct. 330; 54 L. Ed. 2d 331 (1977).

The order to suppress the evidence is reversed and the proceedings against the defendant are reinstated.

Reversed.

BEASLEY, P.J., concurred.

D.E. HOLBROOK, JR., J. (dissenting).

In granting defendant's motion to suppress, the trial judge noted that the preliminary examination transcript revealed no testimony by the police officer that he had any idea what the "dark colored object" was nor any testimony that the officer feared for his safety. Under these circumstances there was no probable cause for a warrantless automobile search and the evidence should be suppressed.

To justify a warrantless automobile search, there must be probable cause to believe that a felony has been or is being committed. People v Kuntze, 371 Mich. 419; 124 NW2d 269 (1963), People v Strong, 77 Mich. App. 281, 284; 258 NW2d 205 (1977), People v Iverson, 34 Mich. App. 519, 526; 191 NW2d 745 (1971). To sustain a warrantless search, the burden is on the people to show the police acted with probable cause and in response to exigent circumstances, thus bringing the search under one of the specific exceptions to the warrant requirement. People v White, 392 Mich. 404, 410; 221 NW2d 357 (1974), People v Strong, supra at 285.

The fact that the driver committed several traffic violations is totally irrelevant to a determination of whether the officer had probable cause to search the automobile. People v Ridgeway, 74 Mich. App. 306, 312; 253 NW2d 743 (1977), People v Strong, supra at 285. The lawfulness of the traffic stop is not a factor in determining whether there was probable cause to search. People v Nelson Pitts, 40 Mich. App. 567, 571-572; 199 NW2d 271 (1972), lv den 388 Mich. 791 (1972).

The only possible basis for the search, therefore, is the fact that the defendant dropped an unidentified dark colored object into a hole in the backseat area. Such a mere "furtive gesture" does not create probable cause to search an automobile. People v Pitts, supra at 576. In the instant case, as in Pitts, the officer had no reason to believe the occupants of the auto possessed any contraband. The defendant could have been hiding any number of things from the police. As in Pitts, the officer here had to infer that the defendant's actions were evasive and the officer had to infer the dark colored object was contraband. At most, the officer had a mere suspicion and mere suspicion is not probable cause. People v Pitts, supra at 579. Furtive gestures which raise a mere suspicion, without some additional specific knowledge on the part of the officer, are insufficient to justify the warrantless search. People v Terrell, 77 Mich. App. 676, 680; 259 NW2d 187 (1977).

As noted above, the testimony of the police officer at the preliminary examination reveals he did not know what the object was. Further there was no testimony that the officer feared for his safety, so the search cannot be characterized, as the majority has done, as a "protective" search. If anything the placing of the pistol into a hole in the side of the car placed the officer in less danger than had the defendant kept the pistol in his waistband. I am aware of the potential dangers facing police officers in even routine traffic stops, Pennsylvania v Mimms, 434 U.S. 106; 98 S. Ct. 330; 54 L. Ed. 2d 331 (1977), but here the record is barren as to any fears which would justify an immediate protective search of the auto.

I would affirm the trial court's suppression of the illegally seized evidence.