PEOPLE
v.
MARSHALL
Docket No. 7,351.
Michigan Court of Appeals.
Decided July 28, 1970.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Odell Marshall, in propria persona.
Before: R.B. BURNS, P.J., and LEVIN and CHURCHILL,[*] JJ.
LEVIN, J.
The defendant, Odell Marshall, appeals his conviction of possession of marijuana. MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123).
The marijuana was found in a briefcase in the trunk of an automobile in which Marshall was a passenger. His motion to suppress this evidence was denied. The trial judge found the search reasonable and, in any event, valid because of the proviso to the search and seizure section of the Michigan Constitution (Const 1963, art 1, § 11) which excepts narcotics and certain dangerous weapons seized outside the curtilage of a dwelling from the exclusionary *379 rule making illegally-seized evidence inadmissible at trial. We reverse.
Marshall and his companions were stopped by police officers when the automobile in which they were riding ran a stop sign. The automobile was licensed in Ohio. The driver had an Ohio driver's license with him but could not produce a certificate of registration for the vehicle. He said it belonged to his brother, Marshall's father. (This was verified some time later.)
At the hearing one of the officers testified that they thought the car was stolen and informed its occupants that they were being arrested for auto theft. Marshall and his companions were patted down for offensive weapons; none were found. The officer said that they asked that the trunk be opened and then the briefcase, whereupon the marijuana was found.
We have concluded that the police did not have probable cause to arrest the occupants of the automobile. Merely because the driver of an automobile cannot produce evidence of its registration does not, standing by itself, provide a basis for a reasonable belief that it is stolen. Although the law requires a registration certificate to be carried in Michigan-licensed vehicles and a failure to do so is a misdemeanor,[1] and authorizes nonresidents to operate foreign-registered vehicles on a like condition,[2] non-compliance by honest citizens occurs with such frequency that it is not reasonable to believe an automobile to be stolen from that alone.
It appears from our research, which has been confined to cases decided in the last few years, that inability to produce a registration certificate has been held to provide a reasonable basis for believing *380 an automobile to be stolen in cases where there were other factors which in cumulative effect justified that conclusion, e.g., inability to identify the owner of the vehicle,[3] contradictory or improbable exculpatory statements[4] and noncompliance as well with other registration or licensing requirements.[5]
Since the officers did not have probable cause to arrest for auto theft, the search of the trunk cannot be justified as an incident to an arrest on that charge. Even if, in appraising the validity of the search of the trunk, we treat this case as if[6] the driver had been arrested for the motor vehicle violation or nonpossession of a registration certificate, that would not validate the search. The police do not have the right to make a general search of an automobile as an incident to an arrest for a traffic offense. There are no fruits of a traffic offense to be found in the trunk of an automobile.[7]
When the trunk was opened and the briefcase was seen, an officer inquired who owned it. The officer who testified said the driver told them that it belonged to Marshall. Clearly the search of the briefcase *381 was directed at Marshall, who was then under arrest, and he has standing to complain.[8]
The officer said that the driver opened the trunk at the request of the police. And, after he told them that the briefcase belonged to Marshall, at their request Marshall opened the briefcase. This testimony was denied by the driver who said that the police opened both the trunk and the briefcase. The trial judge did not decide that factual dispute.
Under the circumstance that both Marshall and the driver were under arrest before the trunk was opened, the burden on the people to show that consent to search was freely and voluntarily given is particularly heavy.
"Non-resistance to the orders or suggestions of the police is not infrequent in such a situation; true consent, free of fear or pressure, is not so readily to be found." Judd v. United States (1951), 89 App DC 64 (190 F2d 649, 651).
It is not claimed that Marshall and the driver were advised, in connection with the requests that the trunk and briefcase be opened, that they were under no obligation to comply.[9] A "request" without such advice made by a police officer to persons who are under arrest and who are standing on a street corner in the dark of night, is properly understood by reasonable men as a polite order.
There is no reason to believe that Marshall, who the jury found knew that the briefcase contained marijuana, would have voluntarily exposed it to the view of the police.[10] The opening of the trunk and *382 the briefcase, whether by or at the request of police officers was, under the circumstances, nonconsensual; manifestly, Marshall and the driver were acting at the direction of the officers, whatever form of words were used.[11]
Moreover, even after the briefcase was opened, it was not apparent that it contained marijuana. There were three packages in the briefcase wrapped in heavy tan or brown paper. The officer who testified said that the other officer tore this wrapping off, revealing the marijuana.
The proviso to the search and seizure section of the Michigan Constitution excepting searches and seizures of weapons and narcotics outside the curtilage of a dwelling has been declared violative of the Federal Constitution.[12]
Marshall's conviction is reversed and he is remanded to the custody of the Wayne County sheriff for a new trial at which the seized marijuana may not be offered in evidence.
All concurred.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] MCLA § 257.255 (Stat Ann 1968 Rev § 9.1955).
[2] MCLA § 257.243 (Stat Ann 1968 Rev § 9.1943).
[3] People v. Ceccone (1968), 260 Cal App 2d 886 (67 Cal Rptr 499); People v. James (1969), 1 Cal App 3d 645 (81 Cal Rptr 845, 846); Commonwealth v. Dussell (1969), 214 Pa Sup 1 (248 A2d 857, 859); People v. Mermuys (1969), 2 Cal App 3d 1083 (82 Cal Rptr 902, 904); Sewell v. United States (CA 8, 1969), 406 F2d 1289.
[4] People v. Ceccone, supra; Taylor v. State (Tex, 1967), 421 SW 2d 403, cert den 393 US 916 (89 S Ct 241, 21 L Ed 2d 201); Coykendall v. State (Fla, 1970), 230 So 2d 702, 703; People v. Mermuys, supra.
[5] Absence of a driver's license: People v. Ceccone, supra; Taylor v. State, supra; People v. James, supra; People v. Mermuys, supra; Sewell v. United States, supra; defective license plates, inspection certificates and other identifying marks: People v. James, supra; Coykendall v. State, supra; State v. Hock (1969), 54 NJ 526 (257 A2d 699, 701).
[6] See People v. McDonald (1968), 13 Mich App 226, 235; State v. Nolan (1966), 69 Wash 2d 961 (421 P2d 679); Coykendall v. State, supra.
[7] See People v. Gonzales (1959), 356 Mich 247; People v. James, supra.
[8] Jones v. United States (1960), 362 US 257 (80 S Ct 725, 4 L Ed 2d 697); People v. Gonzales, supra, p 257; People v. Sims and Perry (1970), 23 Mich App 194.
[9] See People v. Smith (1969), 19 Mich App 359, and cases cited in notes 13, 14, 20.
[10] See People v. Shaw (1968), 9 Mich App 558, 565, affirmed 383 Mich 69; People v. Stepps (1968), 31 App Div 2d 59 (296 NYS2d 729); Higgins v. United States (1954), 93 App DC 340 (209 F2d 819).
[11] See People v. Zeigler (1960), 358 Mich 355, 363-365; People v. Kaigler (1962), 368 Mich 281, 294 (per T.M. KAVANAGH, J., three other justices concurring, the other justices reaching the same result by different reasoning and signing separate opinions); Judd v. United States (1951), 89 App DC 64, (190 F2d 649, 651); Ray v. United States (CA5, 1936), 84 F2d 654; Commonwealth v. Harris (1968), 429 Pa 215 (239 A2d 290). Cf. People v. Smith, supra.
[12] People v. Pennington (1970), 383 Mich 611. Similarly, see People v. Andrews (1970), 21 Mich App 731; Lucas v. Michigan (CA 6, 1970), 420 F2d 259.