                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      May 19, 2016
               Plaintiff-Appellee,

v                                                                     No. 326388
                                                                      Wayne Circuit Court
ANTHONY LAMONT JOHNSON,                                               LC No. 14-006308-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and METER and BECKERING, JJ.

PER CURIAM.

        Defendant, Anthony Johnson, appeals as of right his jury convictions of possession with
intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), and possession of less
than 25 grams of heroin, MCL 333.7403(2)(a)(v). The trial court sentenced defendant as an
habitual offender, second offense, to five years’ probation, with the first year to be served in jail.
We affirm.

        Detroit Police officers responding to a complaint of narcotics activity near the
intersection of Monica and Elmhurst streets in Detroit observed an elderly man approach a
parked Cadillac, in which defendant was sitting in the driver’s seat. According to the officers,
the elderly man’s unkempt appearance, sunken eyes, and demeanor were typical of a drug user.
The man came within an arm’s reach of the Cadillac’s driver’s side door, and he appeared to be
saying something to defendant. When the man saw the police vehicle, he changed his direction
and quickly walked away from the Cadillac and out of sight, not stopping despite an officer’s
request to do so. Officer David Kline, one of the responding officers, believed that the man was
trying to evade contact with the officers. Thereafter, Kline observed defendant putting his hands
up near the vehicle’s headliner, where the interior of the car’s roof met the windshield. It
appeared to Kline that defendant was “sticking something up in the liner.” Kline saw part of a
clear plastic bag sticking out from the headliner. Kline ordered defendant to exit the Cadillac.
Kline detained defendant while Officer Jesse Wilson inspected the headliner. Wilson removed
two clear plastic sandwich bags from the headliner, one containing 231 small Ziploc bags of


1
 Wilson testified at the suppression hearing that there were 43 small Ziploc bags of cocaine;
however, trial testimony revealed that there were only 23 such bags.


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suspected crack cocaine, the other containing chunks of suspected heroin. Laboratory analysis
confirmed that the substances were cocaine and heroin. Defendant also had on his person $745
in cash.

        Defendant moved to suppress the evidence seized from his Cadillac. Following an
evidentiary hearing, the trial court concluded that based on the totality of the circumstances, the
officers had sufficient probable cause to justify searching the vehicle without a warrant. At trial,
defendant testified that he purchased the Cadillac a week earlier, and he denied having
knowledge that drugs were concealed in the headliner.

       Defendant argues on appeal that the trial court erred in denying his motion to suppress.
We review de novo the trial court’s ultimate decision on a motion to suppress evidence, and we
review the court’s findings of fact for clear error. People v Barbarich, 291 Mich App 468, 471;
807 NW2d 56 (2011).

        The Fourth Amendment of the United States Constitution and the Michigan Constitution
both protect persons from unreasonable searches and seizures. US Const, Am IV; Const 1963,
art 1, § 11; Barbarich, 291 Mich App at 472. “The Michigan Constitution is construed to
provide the same protection as that provided by the Fourth Amendment absent a compelling
reason to do otherwise.” Barbarich, 291 Mich App at 472 n 1. “[S]everal categories of
permissible warrantless searches and seizures are well established in Fourth Amendment
jurisprudence,” but “[e]ach of these exceptions . . . requires reasonableness and probable cause.”
Id. at 472-473. “[T]he ultimate determination whether a particular search is reasonable is fact
intensive and must be measured by examining the total circumstances of each case.” Id. at 473.
“Generally, if evidence is seized in violation of the constitutional prohibition against
unreasonable searches and seizures, it must be excluded from trial.” Id. “The discovery of
contraband does not validate an illegal search and seizure.” People v LoCicero (After Remand),
453 Mich 496, 501; 556 NW2d 498 (1996) (citation and quotation marks omitted).

       In general, police officers may search an automobile without a search warrant if there is
probable cause to support the search. People v Kazmierczak, 461 Mich 411, 418-419; 605
NW2d 667 (2000). The bases for this exception are the inherent mobility of automobiles and the
pervasive regulation of vehicles, which diminishes the expectation of privacy. People v Carter,
250 Mich App 510, 515, 517-518; 655 NW2d 236 (2002). The exception applies even in
circumstances in which it is not likely that the vehicle will soon be driven away. Id. at 514-517.
The facts needed to establish this exception are those that would establish sufficient probable
cause to issue a warrant, based upon the information known to the officers at the time of the
search. People v Levine, 461 Mich 172, 179; 600 NW2d 622 (1999). Under the automobile
exception, police officers do not need a warrant to search a car if they have probable cause to
believe contraband is inside, irrespective of whether the police would have the time and
opportunity to obtain a warrant. United States v Ross, 456 US 798, 809; 102 S Ct 2157; 72 L Ed
2d 572 (1982); People v Clark, 220 Mich App 240, 242; 559 NW2d 78 (1996). “Probable cause
to issue a search warrant exists where there is a ‘substantial basis’ for inferring a ‘fair
probability’ that contraband or evidence of a crime will be found in a particular place.”
Kazmierczak, 461 Mich at 417-418. See also People v Garvin, 235 Mich App 90, 102; 597
NW2d 194 (1999). Whether probable cause exists in a given case is determined “in a
commonsense manner in light of the totality of the circumstances.” Id. at 102. The automobile

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exception is not limited to traffic stops; it applies to parked vehicles as well. See People v
Wilson, 257 Mich App 337, 359-360; 668 NW2d 371 (2003), vacated in part on other grounds
469 Mich 1018 (2004).

        The trial court did not err in concluding that the totality of the circumstances established
that Officers Kline and Wilson had a substantial basis for inferring that defendant was concealing
narcotics in his car. Kazmierczak, 461 Mich at 417-418. Kline and Wilson were dispatched to
the area to investigate a report of narcotics dealing in an apartment building. They were familiar
with the area, and they knew from their experience that narcotics were commonly sold in the
area. They also knew from their experience that the elderly man had the unkempt and haggard
appearance typical of drug addicts. The man’s conduct in approaching the Cadillac, seeing the
police car, abruptly changing his direction, speaking to defendant, and disregarding the officer’s
request to stop, was consistent with a person approaching a drug dealer to purchase narcotics, but
aborting the transaction when he realized that police were present. Defendant’s conduct in
reaching for the headliner of the Cadillac was also consistent with concealing narcotics inside the
headliner, which Kline and Wilson knew, from their experience, was a common place that drug
dealers stored drugs. Finally, first Wilson, and then Kline, observed a small portion of a clear
plastic bag sticking out of the headliner. The officers knew, from their experience, that drugs are
often packaged for sale in small, clear, plastic bags. The totality of these circumstances justified
the search of the Cadillac without a warrant.

        Defendant argues that the search was illegal under Arizona v Gant, 556 US 332, 342-347;
129 S Ct 1710; 173 L Ed 2d 485 (2009), in which the United States Supreme Court held that the
arrest of a motorist does not justify a warrantless search of the motorist’s vehicle incident to the
arrest where there is no possibility of the defendant accessing the vehicle and no reasonable
suspicion that the vehicle contained evidence related to the arresting offense. Gant involved a
search incident to arrest, and is therefore distinguishable from the instant case, which involves a
search pursuant to the automobile exception. The Supreme Court in Gant expressly stated that
searches pursuant to the automobile exception are distinguishable from searches incident to
arrest, and are not limited to circumstances in which the police reasonably believed that the
defendant might gain access to the vehicle or that the vehicle contained evidence related to the
arrest. The Court stated:

       Under our view, [New York v] Belton [453 US 454, 101 S Ct 2860; 69 L Ed 2d
       768 (1981)] and Thornton [v United States, 541 US 615; 124 S Ct 2127; 158 L Ed
       2d 905 (2004),] permit an officer to conduct a vehicle search when an arrestee is
       within reaching distance of the vehicle or it is reasonable to believe the vehicle
       contains evidence of the offense of arrest. Other established exceptions to the
       warrant requirement authorize a vehicle search under additional circumstances
       when safety or evidentiary concerns demand. . . . If there is probable cause to
       believe a vehicle contains evidence of criminal activity, United States v. Ross, 456
       US 798, 820-821, 102 S Ct 2157, 72 L Ed 2d 572 (1982) authorizes a search of
       any area of the vehicle in which the evidence might be found. . . . Ross allows
       searches for evidence relevant to offenses other than the offense of arrest, and the
       scope of the search authorized is broader. [Gant, 556 US at 346-347.]



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Because this case does not involve a search incident to an arrest, but rather a permissible search
under the automobile exception, defendant’s reliance on Gant is misplaced.2

       Affirmed.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Patrick M. Meter
                                                            /s/ Jane M. Beckering




2
  Defendant does not appear to contest whether the officers could briefly detain him before the
search. However, we find that, based on the totality of the circumstances noted above, the
officers had a reasonable and articulable suspicion that criminal activity was afoot, thereby
justifying defendant’s brief detention prior to the search. See Terry v Ohio, 392 US 1, 30-31; 88
S Ct 1868; 20 L Ed 2d 889 (1968).


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