Opinion
Docket No. 76103.
Decided January 23, 1986.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Deputy Chief, Civil and Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
Wilfred C. Rice, for Michael A. Coger.
On January 31, 1980, a Detroit Recorder's Court judge, acting as magistrate, dismissed a charge of knowing and intentional possession of cocaine pending against the defendant on the ground that the defendant had been illegally approached by the arresting officers. The prosecutor's office filed a complaint for superintending control in the circuit court on May 15, 1980. An order of superintending control was granted, and in an opinion dated July 18, 1980, the circuit court reversed the magistrate's dismissal and remanded the case for further proceedings. At the continuation of the preliminary examination, the magistrate suppressed evidence obtained from the defendant's mouth, finding the search and seizure, conducted without a warrant, to be illegal. A second complaint for superintending control was filed, and again, in an opinion dated December 29, 1983, the circuit court reversed the magistrate's dismissal of the charge, finding no violation of defendant's constitutional rights. Defendant appeals as of right.
At the preliminary examination, Detroit Police Officer John Magnum testified that on January 11, 1980, he observed Lawrence Barnes, for whom he held an arrest warrant, exit from a double-parked black pickup truck and walk toward Cadillac Square in the City of Detroit. Magnum and his partner arrested Barnes, then approached defendant, the driver of the black pickup, for the purpose of obtaining his identity to include in a report of the arrest. Magnum displayed his badge and requested that defendant exit from the vehicle. Defendant responded by starting the ignition, and Magnum, fearful of being hit, pulled his revolver and ordered defendant out of the vehicle. Defendant complied, but as he did so, he struck Officer Magnum's temple with his forearm and placed a plastic bag containing coin envelopes into his mouth. Believing the bag to contain narcotics, Magnum told defendant not to swallow it because it could kill him.
Defendant was then transported to the police station where a warrant request was phoned in to search the defendant's mouth. Before the request was approved, Officer Magnum observed defendant becoming ill and acting as if he might lose consciousness. Defendant then fell to the floor, and Magnum held defendant's nose and placed his hand over defendant's mouth, forcing him to spit out the bag.
Defendant raises two issues on appeal, the first concerning the circuit court's initial order of superintending control which reversed the magistrate's dismissal due to an illegal approach of the defendant by the officers. We agree with the circuit court that the magistrate abused his discretion in dismissing the charges. Wayne County Prosecutor v Recorder's Court Judge, 101 Mich. App. 772, 774; 300 N.W.2d 516 (1980). As noted in People v Dembinski, 62 Mich. App. 583, 587; 233 N.W.2d 662 (1975), quoting Terry v Ohio, 392 U.S. 1, 34; 88 S Ct 1868; 20 L Ed 2d 889 (1968) (White, J., concurring):
"`There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstance, the person approached may not be detained or frisked but may refuse to cooperate and go on his way.'"
See also People v Shabaz, 424 Mich. 42; 378 N.W.2d 451 (1985). Thus, contrary to the belief of the magistrate, it was not illegal for the officer to approach defendant and request his identity, even if the extenuating circumstance of the arrest of defendant's passenger had not occurred.
Furthermore, Officer Magnum had an additional basis for approaching defendant and requesting his identification. The defendant was the driver of a vehicle which was double-parked in violation of a traffic ordinance. Thus, we conclude that the circuit court properly issued the initial order of superintending control.
Defendant also appeals from the circuit court's conclusion, pursuant to the second order of superintending control, that the magistrate abused his discretion in suppressing the evidence obtained from defendant's mouth. Again, however, we find no error. The facts presented here are substantially similar to those presented in People v Holloway, 416 Mich. 288; 330 N.W.2d 405 (1984). In Holloway, the defendant was pulled over to the side of the road by officers acting on an arrest warrant for traffic violations. Upon approaching the defendant, one of the officers noticed two open film cannisters containing a brown powdery residue between the defendant's legs, and observed defendant quietly chewing on some object. Knowing that such cannisters are commonly used to store narcotics, the officer ordered defendant to open his mouth. When he refused, defendant was arrested and handcuffed, after which the officer applied pressure to the sides of his jaws to force his mouth open. This procedure succeeded and nine chewed tinfoil packets containing heroin and cocaine were retrieved. 416 Mich. 294.
In finding the search and seizure without a warrant to be constitutional, the Supreme Court noted that:
"[T]he weight of authority is that the use of a reasonable amount of force by the government, in conjunction with the use of a reasonable method in executing the search, for the purpose of preventing the destruction of material evidence of a crime, is constitutionally permissible." 416 Mich. 299.
Referring specifically to the search conducted in the case before them, the Court concluded:
"The method and manner of the search were not unreasonable: defendant remained standing throughout; the search took a relatively brief time; defendant's blood supply and air passages were not restricted or cut off; defendant did not require hospitalization and did not appear to be injured as a result of the contact; and it appears that no more force was used than was reasonably necessary." 416 Mich. 302 -303.
The facts before us present an even more compelling basis for finding no violation of defendant's constitutional rights. The police officers were initially content to wait until a proper warrant authorizing a search of defendant's mouth was issued. This plan was aborted only after an apparent life-threatening situation arose. The defendant's right to be free from unreasonable searches and seizures was clearly outweighed by both his own and the state's interest in the preservation of human life. Viewing this search from the totality of the circumstances involved, its reasonableness cannot seriously be disputed, and thus no violation of defendant's constitutional rights occurred. Holloway, supra, p 302. The circuit court's issuance of an order of superintending control was proper.
Affirmed.