If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 25, 2024
Plaintiff-Appellee,
v No. 357699
Oakland Circuit Court
CLAUDELL TURNER, LC No. 2021-276333-FH
Defendant-Appellant.
ON REMAND
Before: MARKEY, P.J., and SHAPIRO and PATEL, JJ.
MARKEY, P.J. (dissenting).
I once again disagree with this majority’s analysis and adopt and incorporate by reference
my earlier dissent. See People v Turner, 342 Mich App 581, 603-611; 995 NW2d 857 (2022),
vacated 511 Mich 992 (2023). I must, however, expand somewhat on my previous analysis and
reasoning.
The majority effectively concludes that Deputy Kevin Myers exceeded the bounds of a
permissible frisk to search for weapons under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d
889 (1968), by not limiting the search to a pat-down of defendant’s exterior clothing and by placing
his hands in defendant’s pocket and sweatpants as part of a purported general exploratory search
for evidence. I adamantly disagree.
A search for weapons is reasonable during a Terry stop when there is reason to believe that
a detainee is armed and dangerous. Johnson v VanderKooi, 509 Mich 524, 539-540; 983 NW2d
779 (2022). But Terry does not permit a generalized cursory search for weapons or a search for
evidence other than weapons. Id. at 540. “Terry strictly limits the permissible scope of a patdown
search to that reasonably designed to discover guns, knives, clubs, or other hidden instruments that
could be used to assault an officer.” People v Champion, 452 Mich 92, 99; 549 NW2d 849 (1996).
The search “must be limited to that which is necessary for the discovery of weapons which might
be used to harm the officer or others nearby, and may realistically be characterized as something
less than a ‘full’ search, even though it remains a serious intrusion.” Terry, 392 US at 26.
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With respect to the observance of “bulges” in a suspect’s clothing, the United States
Supreme Court in Pennsylvania v Mimms, 434 US 106, 111; 98 S Ct 330; 54 L Ed 2d 331 (1977),
found that a large “bulge in [his sport’s] jacket permitted [an] officer to conclude that Mimms was
armed and thus posed a serious and present danger to the safety of the officer.” The Court upheld
the officer’s actions in reaching under the jacket and into Mimms’s waistband and removing a gun
hidden there. Id. at 107, 112. In United States v Hill, 545 F2d 1191, 1192-1193 (CA 9, 1976), a
police officer observed a bulge in the defendant’s waistband that might have been a weapon, and
the officer raised the defendant’s shirt, discovering rolls of currency. The United States Court of
Appeals for the Ninth Circuit in ruling the search constitutional held:
We find that the lifting by the officer of [the defendant’s] shirt was not,
under the circumstances, overly intrusive. Terry . . . confines a self-protective
search for weapons to an intrusion reasonably designed to discover instruments of
assault. It precludes general exploratory searches. In the instant case the officer’s
investigation was wholly confined to the area of the bulge in question and was a
direct and specific inquiry. As such it did not transcend the permissible bounds
established by Terry. [Hill, 545 F2d at 1193.]
In this case, there is no dispute that Deputy Myers had the authority to frisk or pat-down
defendant for purposes of determining whether he had a weapon on his person. Deputy Myers
noticed a bulge or lump in the area of a pocket of defendant’s sweatpants, which he deemed
suspicious. The deputy did not know whether the bulge was a weapon or not; therefore, he reached
into the pocket and pulled it out, discovering that it was a stack or roll of cash as in Hill. With
respect to the second bulge, which was in the crotch area of defendant’s sweatpants, Deputy Myers
described it as having a “point,” and he believed that it could be the handle of a small caliber pistol
or handgun. The deputy reached into the sweatpants and felt “some type of hard plastic[.]” Deputy
Myers did testify that when he pulled defendant’s waistband forward, he could see that the object
was a scale when he reached in and removed it from defendant’s sweatpants. I conclude that the
two intrusions—into the pocket and crotch area of the sweatpants—were direct and specific to the
locations of the bulges and were reasonably designed to discover weapons. The intrusions were
necessary to assess whether defendant possessed instruments of assault. Contrary to the majority’s
conclusion, Deputy Myers patently did not engage in a general exploratory search for
incriminating evidence.
In People v Chapo, 283 Mich App 360, 366-367; 770 NW2d 68 (2009), this Court observed
as follows:
A police officer may make an arrest without a warrant if there is probable
cause to believe that a felony was committed by the defendant, or probable cause
to believe that the defendant committed a misdemeanor in the officer’s presence.
Probable cause is found when the facts and circumstances within an officer’s
knowledge are sufficient to warrant a reasonable person to believe that an offense
had been or is being committed. The standard is an objective one, applied without
regard to the intent or motive of the police officer. [Quotation marks and citations
omitted.]
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The exception to the warrant requirement for a search incident to a lawful arrest generally allows
a police officer to search and seize items found on a person during a lawful arrest. People v
Hughes, 506 Mich 512, 525; 958 NW2d 98 (2020). In this case, Deputy Myers’s partner
immediately observed the white powdery residue on the scale when it was lifted out of defendant’s
sweatpants. This then provided probable cause that defendant was engaged in felonious conduct
and justified an arrest and a search of defendant incident to the lawful arrest.
I recognize that the argument is that once Deputy Myers observed and identified the scale
upon pulling the waistband of defendant’s sweatpants away from his body, he had no authority to
retrieve the scale from defendant’s sweatpants because he supposedly knew that it was not a
weapon. Then, had the scale not been removed from his sweatpants, the deputy’s partner who
noticed the white powdery residue on the scale would have not seen the residue, thereby
eliminating the legal basis to continue the search of defendant’s person. I cannot, however, accept
such a parsed, unwieldy proposition that Deputy Myers was constitutionally prohibited from
simply lifting the digital scale out of defendant’s sweatpants for a brief moment in order to get a
full 360-degree view of the object to make sure that it fully and exclusively explained the pointy
bulge in defendant’s sweatpants and could not be used as a weapon. Moreover, in my view, the
evidence of the roll of cash, which amounted to $680, and the digital scale—even without
considering the white powdery residue—was sufficient to warrant a reasonable person to believe
that an offense had been or was being committed. I reach that conclusion because the digital scale,
a common tool of drug traffickers, was hidden in defendant’s sweatpants. This was not a scale
sitting in a place of business, a house, a garage, or even a vehicle; it was a scale deliberately hidden
in the crotch of defendant’s sweatpants! In sum, the majority crafts a bewildering, illogical and
impractical application of the law in this factual scenario that I conclude is incorrect.
I would affirm the trial court’s ruling denying defendant’s motion to suppress the evidence
and again dissent.
/s/ Jane E. Markey
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