                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    August 8, 2017
                Plaintiff-Appellee,                                 9:00 a.m.

v                                                                   No. 327881
                                                                    Jackson Circuit Court
LARRY GERALD MEAD,                                                  LC No. 14-004482-FH

                Defendant-Appellant.


                                         ON REMAND

Before: TALBOT, C.J., and O’CONNELL and K. F. KELLY, JJ.

O’CONNELL, J.

       This case addressing defendant Larry Gerald Mead’s Fourth Amendment right against
unreasonable searches returns to us on remand from the Michigan Supreme Court. Mead appeals
as of right his conviction, following a jury trial, of possessing methamphetamine, MCL
333.7403(2)(b)(i), as a fourth-offense habitual offender, MCL 769.12. The trial court sentenced
him to serve 2 to 10 years’ imprisonment. In our prior opinion, we concluded that Mead, a
passenger in a vehicle, lacked standing to challenge the search of a container in the vehicle under
People v LaBelle, 478 Mich 891; 732 NW2d 114 (2007), and affirmed Mead’s conviction.1
However, the Michigan Supreme Court vacated our judgment and remanded for us to consider:

         (1) whether [the Michigan Supreme Court’s] peremptory order in People v
         LaBelle, 478 Mich 891 (2007), is distinguishable; (2) whether the record
         demonstrates that the police officer reasonably believed that the driver had
         common authority over the backpack in order for the driver’s consent to justify
         the search, see Illinois v Rodriguez, 497 US 177, 181, 183-189; 110 S Ct 2793;
         111 L Ed 2d 148 (1990); and (3) whether there are any other grounds upon which
         the search may be justified.[2]



1
 People v Mead, unpublished opinion per curiam of the Court of Appeals, issued September 13,
2016 (Docket No. 327881).
2
    People v Mead, 500 Mich 967; 892 NW2d 379 (2017).


                                                -1-
On remand, we address all three issues, conclude that issue one controls, and affirm.

                                I. FACTUAL BACKGROUND

        On the night of May 29, 2014, Rachel Taylor was driving a vehicle, and Mead rode in the
front passenger seat. Officer Richard Burkart testified that he stopped the vehicle for an expired
license plate. Officer Burkart stated that Mead had a backpack on his lap. According to Officer
Burkart, Taylor consented to a search of the vehicle, Officer Burkart asked Taylor and Mead to
exit the vehicle, and Mead left the backpack “on the front passenger floorboard.” When Officer
Burkart searched the vehicle, he opened the backpack and found methamphetamine. Mead
admitted that the backpack belonged to him, but moved to suppress the evidence found in the
backpack. The trial court denied his motion.

                                    II. PEOPLE V LABELLE

       We conclude the Michigan Supreme Court’s order in LaBelle, 478 Mich at 891-892, is
not distinguishable from the present case, and therefore, we are required to affirm both
defendant’s conviction and sentence.

        The defendant in LaBelle was a passenger in a motor vehicle. Id. The vehicle’s driver
violated MCL 257.652(1), and the police stopped the vehicle. Id. The Michigan Supreme Court
concluded that the stop was objectively lawful. Id. After the stop, the driver consented to a
search of the vehicle. See id. Police then searched an unlocked backpack that the defendant left
in the “passenger compartment of the vehicle.” See id. The defendant moved to suppress
evidence of the contents of the backpack. See id. However, the Supreme Court concluded that
“[t]he search of the backpack was valid,” explaining that “[b]ecause the stop of the vehicle was
legal, the defendant, a passenger, lacked standing to challenge the subsequent search of the
vehicle.” Id. Further, “[a]uthority to search the entire passenger compartment of the vehicle
includes any unlocked containers located therein, including the backpack in this case.” Id.

        We cannot distinguish Mead’s case from the Supreme Court’s order in LaBelle. Mead
was a passenger in a motor vehicle driven by Taylor. Officer Burkart stopped the vehicle. Mead
has not challenged the validity of the stop. After the stop, Taylor consented to a search of the
vehicle. Officer Burkart then searched an unlocked backpack in the vehicle’s passenger
compartment. Therefore, under LaBelle, Mead lacked standing to challenge the search, and
Officer Burkart had authority to search the backpack. LaBelle is binding on this Court. People v
Giovannini, 271 Mich App 409, 414; 722 NW2d 237 (2006). Because Mead lacks standing to
challenge the search, any challenge to the search must fail. See People v Earl, 297 Mich App
104, 107; 822 NW2d 271 (2012), aff’d 495 Mich 33 (2014).

                  III. REASONABLE BELIEF OF COMMON AUTHORITY

        Notwithstanding the fact that existing Michigan law provides that a passenger in a motor
vehicle does not have standing to contest the search of a third party’s vehicle, the Supreme Court
has directed us to address whether the record in the present case demonstrates that Officer
Burkart reasonably believed that Taylor had common authority over the backpack in order for
her consent to justify the search and directed our attention to Rodriguez, 497 US at 181, 183-189.


                                               -2-
        The Rodriguez Court did not address warrantless searches, pursuant to consent, of
containers in automobiles. Rather, it addressed “[w]hether a warrantless entry [to an apartment]
is valid when based upon the consent of a third party whom the police, at the time of the entry,
reasonably believe to possess common authority over the premises, but who in fact does not”
possess common authority. Id. at 179. In doing so, the Court ruled that the Fourth Amendment
prohibition against warrantless entry to another’s home does not apply when the police obtained
“voluntary consent” from either “the individual whose property is searched,” “a third party who
possesses common authority over the premises,” or a third party who an officer reasonably
believes possesses common authority over the premises. Id. at 181-189. Common authority
exists amongst persons with “ ‘mutual use of the property by persons generally having joint
access or control for most purposes.’ ” Id. at 181, quoting United States v Matlock, 415 US 164,
171 n 7; 94 S Ct 988; 39 L Ed 242 (1974). An officer reasonably believes that a third party
possesses common authority over a premises if “the facts available to the officer at the moment”
would “warrant a man of reasonable caution in the belief that the consenting party had authority
over the premises.” Id. at 188 (quotations and citations omitted).

        Multiple federal circuit courts and other state courts have applied Rodriguez’s common
authority framework to evaluate a third party’s consent to search a container inside a vehicle.
See State v Harding, 282 P3d 31, 34-41; 697 Utah Adv Rep 54; 2011 UT 78 (2011) (collecting
cases). Those foreign courts have determined that officers violate persons’ Fourth Amendment
rights when searching a bag in a car when officers could not have a reasonable belief that a third
party had common authority to consent to the search. Id. In citing case law from all of these
courts, the Supreme Court of Utah determined that courts evaluate the reasonableness of an
officer’s actions by analyzing several factors, such as the type of container searched, any
identifying material on the outside of the container, the container’s location, the number of
containers, the number of passengers, and the passengers’ conduct. Id. at 38-39.

         If Rodriguez and its extension to searches of containers in automobiles as applied in
foreign courts were the law in Michigan, an argument that Officer Burkart lacked a reasonable
belief that Taylor had common authority over the backpack would have some merit. A backpack
is a container used to store personal items, which suggests individual, rather than common,
ownership. See Harding, 282 P3d at 38. The relationship between Mead and Taylor suggests
that Taylor would not have authority over Mead’s personal items. Mead testified that he met
Taylor the night of the search. Taylor stated on a video of the traffic stop that Mead was in her
car because she was dropping Mead off on her way to another destination. Officer Burkart
testified that Mead had the backpack on his lap with his arms resting on either side at the time of
the stop. The video shows that Officer Burkart searched the backpack while it was placed in the
passenger side of the vehicle. Officer Burkart testified that he believed the backpack belonged to
Mead.

       However, in Michigan, Rodriguez’s common authority framework does not apply to
warrantless searches of containers in automobiles. Case law from foreign courts is not binding.
Great Lakes Society v Georgetown Charter Twp, 281 Mich App 396, 414; 761 NW2d 371
(2008). No Michigan Court has successfully applied Rodriguez’s common authority framework
to warrantless searches, pursuant to consent, of containers in automobiles. To the contrary, this
Court attempted to apply the framework to the search of the backpack in People v LaBelle, 273
Mich App 214, 221-226; 729 NW2d 525 (2006), rev’d 478 Mich 891 (2007), and concluded that

                                                -3-
the deputy had no consent to search the backpack because it was not reasonable for the deputy to
believe that the driver had common authority over the backpack. But the Michigan Supreme
Court reversed the judgment, reasoned that “[a]uthority to search the entire passenger
compartment of the vehicle includes any unlocked containers located therein,” and concluded
that “[t]he search of the backpack was valid.” Labelle, 478 Mich at 891-892.

        Police officers in Michigan are trained to follow Michigan law. For example, state
statutes allow the Michigan Commission on Law Enforcement Standards (MCOLES) to institute
and publicize training standards for law enforcement officers. See MCL 28.621; MCL 28.611.
The book Michigan Criminal Law & Procedure: A Manual for Michigan Police Officers
(Kendall Hunt publishing company, 3rd edition, 2009), addresses “search and seizure” “law most
commonly applied by police officers in Michigan” as required by MCOLES.3 The manual cites
the Michigan Supreme Court’s order in Labelle when discussing the scope of a warrantless
search of a container pursuant to consent. Manual, ch 23, p 343. Specifically, the manual states
that a search’s scope “turns on whether it is objectively reasonable for the officer to believe that
the scope of the consent permits the officer to open a particular closed container” and that the
Labelle “court held that when police have authority to search the entire passenger compartment
of a vehicle, that authority extends to any unlocked containers within the vehicle.” Id.

       Thus, because Mead lacks standing to challenge the validity of the search and because
current Michigan law does not apply Rodriguez’s common authority framework to warrantless
searches of containers in automobiles, we decline to apply Rodriguez’s common authority
framework to this case.

                     IV. OTHER GROUNDS JUSTIFYING THE SEARCH

         Finally, the Michigan Supreme Court directed us to consider whether other grounds
justified the search of the backpack. We conclude that, under the facts of this case as presented
to this panel, no other grounds justified the search.

        Both the United States and Michigan constitutions “guarantee the right of persons to be
secure against unreasonable searches and seizures.” People v Hyde, 285 Mich App 428, 438;
775 NW2d 833 (2009) (quotations and citations omitted); See US Const, Am IV; Const 1963, art
1, § 11. “Searches and seizures conducted without a warrant are unreasonable per se, subject to
several specifically established and well-delineated exceptions.” People v Brown, 279 Mich App
116, 131; 755 NW2d 664 (2008) (quotations and citations omitted). A discussion of relevant
exceptions follows.

        A warrantless search of abandoned property does not violate the Fourth Amendment.
People v Rasmussen, 191 Mich App 721, 725; 478 NW2d 752 (1991). Fourth Amendment
protections apply only when a person has an expectation of privacy in the searched property.


3
      Michigan    State   Police,     Criminal   Law     and      Procedure    Manual
<http://www.michigan.gov/msp/0,4643,7-123-3493_57129-140963--,00.html> (accessed July
20, 2017).


                                                -4-
See id. By definition, a person lacks an expectation of privacy in abandoned property. Id. A
person had abandoned property when “he voluntarily discarded, left behind, or otherwise
relinquished his interest in the property so that he could no longer retain a reasonable expectation
of privacy in the property at the time of the search.” Id. at 726-727. For example, a person
abandons a bag when he discards it while running from the police. People v Lewis, 199 Mich
App 556, 557-560; 502 NW2d 363 (1993).

        Mead demonstrated a possessory interest in the backpack by holding it on his lap while in
the vehicle. He did not abandon the backpack by leaving it inside the vehicle because leaving a
bag inside the vehicle in which you are riding does not equate to discarding, leaving behind, or
relinquishing ownership in the item.

        A police officer may conduct a protective or Terry search of the passenger compartment
of a vehicle without a warrant “if the police officer possesses a reasonable belief based on
‘specific and articulable facts which, taken together with the rational inferences from those facts,
reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may
gain immediate control of weapons,” “limited to those areas in which a weapon may be placed or
hidden.” Michigan v Long, 463 US 1032, 1049; 103 S Ct 3469; 77 L Ed 2d 1201 (1983),
quoting Terry v Ohio, 392 US 1, 21; 88 S Ct 1868; 20 L Ed 2d 889 (1968). When evaluating the
validity of a search, the “ ‘issue is whether a reasonably prudent man in the circumstances would
be warranted in the belief that his safety or that of others was in danger.’ ” Id. at 1050, quoting
Terry, 392 US at 27.

       The protective or Terry search exception does not apply here. At no point did Officer
Burkart testify that he had a reasonable belief that Taylor or Mead could gain immediate control
of a weapon inside the vehicle or testify that he believed his safety or the safety of others was in
danger, and the prosecution did not cite this exception as a basis for the search.

        An officer may conduct a search incident to arrest without a warrant “whenever there is
probable cause to arrest.” People v Nguyen, 305 Mich App 740, 756; 854 NW2d 223 (2014). To
have probable cause for an arrest, the investigating officers “must possess information
demonstrating” “ ‘a probability or substantial chance’ ” “that an offense has occurred and that
the defendant has committed it.” Id. at 751-752, quoting People v Lyon, 227 Mich App 599,
611; 577 NW2d 124 (1998). An officer “ ‘may search a vehicle incident to a recent occupant’s
arrest only if the arrestee is within reaching distance of the passenger compartment at the time of
the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.’ ”
People v Tavernier, 295 Mich App 582, 584; 815 NW2d 154 (2012), quoting Arizona v Gant,
556 US 332, 351; 129 S Ct 1710; 173 L Ed 2d 485 (2009). “[T]here is no reason to believe that
evidence relevant to the crime of arrest would be found in the vehicle” when police are
addressing “civil infractions” or a person “driving without a valid license.” Id. at 586.
“[J]ustifying the arrest by the search and at the same time the search by the arrest, just will not
do.” Smith v Ohio, 494 US 541, 543; 110 S Ct 1288; 108 L Ed 2d 464 (1990) (quotations,
alterations, and citation omitted). For example, a “search of a container cannot be justified as
being incident to an arrest if probable cause for the contemporaneous arrest was provided by the
fruits of that search.” People v Champion, 452 Mich 92, 116-117; 549 NW2d 849 (1996).



                                                -5-
        In this case, Officer Burkart did not search the backpack incident to the arrest of Mead or
Taylor. Officer Burkart stopped the vehicle due to an expired license plate. It is unclear how the
vehicle could contain evidence of an expired license plate. Officer Burkart repeatedly testified
that he had no intent to arrest Taylor for the infraction. Additionally, Officer Burkart testified
that Mead and Taylor admitted to using narcotics. But he did not testify that drug use was the
basis for the stop of the vehicle, that either admitted to possessing drugs that night, that either
admitted using drugs that night, or that either exhibited signs of being under the influence of
narcotics. Upon viewing the video of the traffic stop, it does not appear that Taylor or Mead are
within reaching distance of the backpack or passenger compartment of the vehicle at the time of
the search. Therefore, Officer Burkart lacked probable cause for a lawful arrest as is required to
permit a search incident to arrest.

        Police may also search a vehicle or a container within a vehicle without a warrant if they
have probable cause that the vehicle or container “ ‘contains articles that the officers are entitled
to seize.’ ” People v Garvin, 235 Mich App 90, 101; 597 NW2d 194 (1999), quoting People v
Armendarez, 188 Mich App 61, 71-72; 468 NW2d 893 (1991); See also People v Bullock, 440
Mich 15, 24; 485 NW2d 866 (1992). Probable cause exists if the totality of the circumstances
demonstrates “a substantial basis for concluding that a search would uncover evidence of
wrongdoing” and “a fair probability that contraband or evidence of a crime will be found in a
particular place.” Garvin, 235 Mich App at 102 (quotations, alterations, and citations omitted).

        The record in Mead’s case does not contain evidence that Officer Burkart had probable
cause to search the backpack in the automobile. Again, Officer Burkart testified that Mead and
Taylor admitted to using narcotics. But he did not testify that drug use was the basis for the stop
of the vehicle, that either admitted to possessing or using drugs that night, that he believed the
backpack would contain narcotics, or that either exhibited signs of being under the influence of
narcotics. And again, the prosecution did not cite this exception as a basis for the search.

         An inventory search is a “well-defined exception to the warrant requirement of the Fourth
Amendment.” Colorado v Bertine, 479 US 367, 371; 107 S Ct 738; 93 L Ed 2d 739 (1987).
“[A]n inventory search must not be a ruse for a general rummaging in order to discover
incriminating evidence.” Florida v Wells, 495 US 1, 4; 110 S Ct 1632; 109 L Ed 2d 1 (1990);
See also People v Poole, 199 Mich App 261, 266; 501 NW2d 265 (1993). Rather, the search
“protect[s] an owner’s property while it is in the custody of the police, to insure against claims of
lost, stolen, or vandalized property” and “guard[s] the police from danger.” Bertine, 479 US at
372. The search must be conducted reasonably, id. at 374, in good faith, id., and pursuant to
standardized police procedures “designed to produce an inventory,” including procedures that
“regulate the opening of containers found during inventory searches,” Wells, 495 US at 4; see
also Poole, 199 Mich App at 266.

        The record lacks evidence as to whether Officer Burkart’s search of the backpack fell
within the scope of a proper inventory search. Officer Burkart testified that he searches vehicles
to “check for valuables or any damage to the vehicle, anything that may be in there” whenever he
“tow[s] or impound[s] a vehicle.” However, Officer Burkart offered no further explanation of
police department policies, did not explain department policy for the search of a container, and
did not explain how his search complied with department policy. Therefore, we lack evidence to
determine that he conducted a proper inventory search.

                                                -6-
       “The inevitable-discovery rule permits the admission of evidence obtained in violation of
the Fourth Amendment if the prosecution establishes by a preponderance of the evidence that the
information inevitably would have been discovered through lawful means.” People v Mahdi,
317 Mich App 446, 469; 894 NW2d 732 (2016).

        The inevitable discovery exception does not apply here. On appeal, the prosecution only
argues that Taylor consented to the search and that Mead lacked standing to contest the search.
The prosecution is correct. Even assuming that the search violated Mead’s Fourth Amendment
rights, the prosecution advanced no other argument that the police inevitably would have
discovered the contents of the backpack. We conclude that no other grounds justified the search.

       We affirm.

                                                           /s/ Peter D. O’Connell
                                                           /s/ Michael J. Talbot
                                                           /s/ Kirsten Frank Kelly




                                              -7-
