PEOPLE
v.
CRUZ
Docket No. 94760.
Michigan Court of Appeals.
Decided July 6, 1987.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, for the people.
Fried, Saperstein, De Vine & Kohn, P.C. (by James C. Howarth), for defendant.
Before: D.E. HOLBROOK, JR., P.J., and SULLIVAN and M. WARSHAWSKY,[*] JJ.
PER CURIAM.
The people of the State of Michigan appeal by leave granted from the entry of an order suppressing evidence against defendant Daisy Cruz. We reverse.
Defendant was charged with possession with intent to deliver over 650 grams of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). After the preliminary examination, defendant moved for the suppression of evidence of the cocaine which was seized from the trunk of her car. The matter was submitted upon the following facts obtained at the examination:
On May 7, 1986, Henry C. Scott, a Detroit police officer, received information from an informant that a pregnant Hispanic woman named Daisy would arrive on that date at the Red Carpet Inn *240 on Southfield Road, Lincoln Park, in a black and gray Chevrolet, Michigan license number 905 RBF, carrying ten kilograms of cocaine. Scott testified that he had known the informant for about two years, during which time the informant had given him credible information on approximately ten to twelve occasions, the majority of which led to arrests and convictions. Scott informed his crew of this tip and set up surveillance of the motel.
After 4 P.M. on that date, officers conducting the surveillance observed defendant arrive at the motel in a car matching the description provided by the informant. Defendant went to the office, returned to her car approximately fifteen minutes later and parked the car. Defendant then removed a brown suitcase and a brown garbage bag from the trunk and entered the motel complex.
Defendant came back to the car after 7 P.M. that evening and, after returning the garbage bag to the trunk, drove away. Defendant was followed by the surveillance unit to an address on Northlawn in Detroit. Defendant parked the car, opened the trunk and removed two brick-sized objects in light brown wrapping from the garbage bag. Defendant took the "bricks" into the house and, about thirty minutes later, left the house empty-handed. Defendant then drove back to the motel.
At approximately 11:20 A.M. the following morning, defendant came out of the motel carrying the garbage bag. As defendant placed the bag into the trunk of her car, Sergeant Joseph Piersante drove by the vehicle and observed defendant arranging the bag in the trunk and stacking up bundles the size of bricks in light brown plastic wrappings. It is unclear whether the bricks were stacked and stored in the garbage bag itself or outside the bag.
Defendant then drove to a Big Boy Restaurant on Southfield Road, where she drove around the *241 parking lot twice, parked and went into the restaurant. Defendant left the restaurant fifteen minutes later with a male. As defendant drove off, the man followed her in his own car.
Based on his experience as a narcotics officer, Piersante believed defendant was transporting kilo bricks of cocaine and was about to enter into a narcotics transaction. Accordingly, defendant was pulled over on Southfield Road and was escorted from her car. A narcotics dog at the scene was taken to the car and became agitated as it approached the trunk. Police officer Gregory Woods, without a warrant, then opened the trunk, where he found a brown garbage bag which contained eight bricks wrapped in light brown plastic. The bricks were subsequently tested and determined to be cocaine.
As stated, the trial court, based upon such facts, granted the motion and suppressed evidence of the cocaine.
Generally, a search without a warrant is considered unreasonable per se under the Fourth Amendment and is invalid unless it falls within one of the few well-defined exceptions to the warrant requirement. People v Catania, 427 Mich. 447, 453; 398 NW2d 343 (1986). The burden of proof is upon the prosecution to establish that one such exception to the warrant requirement is applicable to the instant case. A ruling on a motion to suppress evidence will not be set aside unless it is clearly erroneous. A ruling is clearly erroneous when a reviewing court is firmly convinced a mistake has been made. People v Alfafara, 140 Mich. App. 551, 556; 364 NW2d 743 (1985).
On appeal, the people argue that the case is controlled by United States v Ross, 456 U.S. 798; 102 S. Ct. 2157; 72 L. Ed. 2d 572 (1982). In Ross, the United States Supreme Court held that, under the *242 automobile exception to the warrant requirement, an officer who has probable cause to believe that there is contraband somewhere in an automobile may search the entire vehicle, as well as any containers found therein. 456 U.S. 825. See also United States v Johns, 469 U.S. 478; 105 S. Ct. 881; 83 L. Ed. 2d 890 (1985).
On the other hand, defendant argues that the matter is properly controlled by United States v Chadwick, 433 U.S. 1; 97 S. Ct. 2476; 53 L. Ed. 2d 538 (1977), where police officers, with probable cause to believe that a footlocker contained contraband, seized and searched it without a warrant as soon as it had been placed in the trunk of an automobile. The Supreme Court held that the search of the footlocker was unreasonable and could not be legitimized by reasoning similar to that which justifies the "automobile exception" to the warrant requirement. 433 U.S. 11-12. Implicit in its holding though was the belief that the police had no probable cause to believe that the automobile, as opposed to the footlocker, contained contraband. See United States v Johns, supra.
In Ross, supra, the Court distinguished the case before it, where the focus was on the entire vehicle, from Chadwick by adopting the language of Chief Justice Burger's concurrence in Arkansas v Sanders, 442 U.S. 753; 99 S. Ct. 2586; 61 L. Ed. 2d 235 (1979), a case similar to Chadwick:
"[I]t was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband [in Sanders] The relationship between the automobile and the contraband was purely coincidental, as in Chadwick. The fact that the suitcase was resting in the trunk of the automobile at the time of respondent's arrest does not turn this into an `automobile' *243 exception case. The Court need say no more." 442 US 766-767. [456 U.S. 813.]
More recently, the Supreme Court relied on Ross in reversing an order which suppressed evidence found in a package situated in a pickup truck used by defendant and uncovered during a search without a warrant. In United States v Johns, supra, United States Customs officers, during a surveillance of a suspected drug smuggling operation, observed two pickup trucks travel to a remote airstrip near the Mexican border. There, the trucks were observed as they approached two successive airplanes which had landed. After a short time on the ground, each aircraft departed. Two of the officers then approached the trucks and ordered the suspects to come from behind the trucks and lie on the ground. These officers, now smelling the odor of marijuana, looked in the back of the trucks, where they observed packages wrapped in a manner which led them to believe that they contained smuggled marijuana. The suspects were consequently arrested and the trucks were taken to law enforcement headquarters, where officers, without a warrant, took samples of a substance that was later determined to be marijuana.
Rejecting the contention that Ross was inapplicable to the resolution of the case, the Court reasoned that the officers had probable cause to search the vehicles themselves once they detected the distinct odor of marijuana. Given this probable cause, the search of the package without a warrant was permissible:
Given their experience with drug smuggling cases, the officers no doubt suspected that the scent was emanating from the packages that they observed in the back of the pickup trucks. The officers, however, were unaware of the packages *244 until they approached the trucks, and contraband might well have been hidden elsewhere in the vehicles. We agree with the Court of Appeals, ... that the Customs officers had probable cause to believe that not only the packages but also the vehicles themselves contained contraband. [469 U.S. 482.]
Similarly, here, we conclude that at the time of the search the officers had probable cause to believe that the vehicle itself contained contraband. The officers had initially received information from a reliable informant that a petite, pregnant Hispanic female named Daisy, driving a black and gray four-door Chevrolet with a specific Michigan license plate, would arrive from Florida at the Red Carpet Inn with over ten kilograms of cocaine in her possession. This information cast suspicion on defendant and her automobile, not on any specific container.
As predicted, defendant, matching the physical description provided by the informant, timely arrived at the hotel in a Chevrolet matching the description given. At that point, still before the focus turned to the garbage bag, the police, in our opinion, had probable cause to search her car. We do not believe that such probable cause dissipated when, after observing defendant's suspicious behavior, it became apparent that defendant was dealing drugs from the garbage bag in the trunk of the car. It was still possible that contraband might well have been hidden elsewhere in the vehicle at the time of the search.
Under the circumstances of the case, we believe that the lower court's conclusion that officers had probable cause to search only the garbage bag was clearly erroneous. We therefore vacate the order of suppression and remand the matter for further proceedings not inconsistent with this opinion.
Reversed and remanded.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.