Pubdate: Wed, 01 Aug 2001
Source: Bay City Times, The (MI)
Copyright: 2001 The Bay City Times
Contact:  http://www.bc-times.com/
Details: http://www.mapinc.org/media/1453
Author: Crystal Harmon

RULING UPHOLDS BAY CITY SEARCH

A sharply divided Michigan Supreme Court this week ruled that Bay 
City police had the right to inspect photographs that showed a 
suspect's pal posing with packaged pot.

In a 4-3 decision that centered on constitutional protections against 
search and seizure, the high court overturned decisions by the 
Michigan Court of Appeals and Isabella County's district and circuit 
courts.

The lower courts all had ruled that police were out of line to look 
at the photos, which eventually prompted a raid of Michael R. 
Custer's home in Mount Pleasant and led to charges of maintaining a 
drug house, delivery and manufacture of marijuana and conspiracy.

With the photos declared inadmissible in court, the search warrant 
and marijuana discovered at Custer's home also were thrown out.

But the Supreme Court returned the case to the Court of Appeals for a 
decision on whether the search of the Chippewa Road home was properly 
conducted.

The courts were holding off on deciding that issue until determining 
whether the photos were properly seized. If the search is upheld, 
felony charges against Custer, 26, will be reinstated.

At issue in Monday's decision was whether police had the right to 
look at photographs that Custer had in his pocket when police stopped 
him and his friend on suspicion of trespassing near a Bay City 
residence on Garfield Avenue on March 27, 1998.

According to court records, police suspected that Custer and his 
friend had been drinking alcohol, and told them to call a tow truck 
to move their vehicle.

When Custer's friend pulled money from his pocket to prove he could 
afford the tow charge, police say, a small bag of marijuana fell from 
his pocket.

The officer patted down Custer and his friend, according to court 
records, to ensure there was no weapon on them. While doing so, the 
officer felt what he said he suspected was "blotter acid," a 
hallucinogenic drug, in Custer's front pocket. The officer pulled out 
the items, which turned out to be photographs, and placed them on top 
of the car.

After completing the search and finding no weapons, the officer 
looked at the photos, which depicted Custer's friend at his home 
posing with several pounds of packaged marijuana, according to a Bay 
City police report.

Bay City police asked Mount Pleasant police to check Custer's 
address. When they peeked in the windows and saw the furniture 
matched that in the photos, they obtained a search warrant and seized 
more than 5 kilograms of marijuana, according to the court record.

Charges of maintaining a drug house, manufacturing marijuana and 
conspiracy were brought against Custer in Isabella County District 
Court in 1998.

But the district judge dismissed the charges against Custer, saying 
that the police had no right to examine the photos or use them to 
obtain a search warrant for his home. An Isabella County circuit 
judge upheld that ruling, as did the Michigan Court of Appeals.

Isabella County prosecutors appealed to the Supreme Court.

The Supreme Court considered four issues - whether police had the 
right to detain Custer, pat him down, seize his photos and turn them 
over to look at them.

The majority opinion of the court was that the police acted properly 
on all counts.

Justice Steven J. Markman wrote that since police believed that 
Custer had LSD in his pocket, they were justified in looking at the 
item, even if it turned out to be something different.

"The fact that the officer is ultimately wrong in his assessment of 
the object does not render the seizure unlawful," he wrote.

Once the pictures were out of Custer's pocket, Markman wrote, he no 
longer had an "expectation of privacy" regarding them.

But Justice Michael F. Cavanagh wrote in dissent that the majority 
opinion "chips away at the protections afforded by the Fourth 
Amendment of our United States Constitution," to be free from 
unwarranted searches and seizures by government agents.

Cavanagh, with agreement from two other justices, argued that police 
had the right only to frisk Custer for a weapon, and not to remove 
anything else from his pockets. His only known offense, Cavanagh 
said, was "guilt by association."

"The officer's knowledge that blotter acid is often carried on 
cardboard and that such pieces of cardboard would fit into a pocket 
do not support a conclusion that this defendant ... would be carrying 
blotter acid in his pants," Cavanagh wrote.

The Times was unable to reach Custer, his attorney or Isabella County 
Prosecutor Larry Burdick for comment.
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