Opinion
Docket No. 91441.
Decided July 13, 1987.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief of the Criminal Division Research, Training and Appeals, for the people.
Defenders' Office — Legal Aid and Defender Association of Detroit (by David Cripps), for defendant on appeal.
Defendant was charged with possession of a controlled substance, MCL 333.7403; MSA 14.15(7403).
At a suppression hearing, Officer Keith Terry testified that on October 18, 1985, he had entered a home in Detroit to execute a search warrant. The only person described in the warrant was "a black female, 45- to 50-years old, 140, medium complexion." Officer Terry testified that he was familiar with the contents of the warrant. Inside the house, Officer Terry encountered defendant, who had been detained by other officers. Officer Terry subjected defendant to a Terry pat-down search for weapons, Terry v Ohio, 392 U.S. 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and found on defendant's person two plastic vials of Percodan which formed the basis of this prosecution. The lower court suppressed the evidence and dismissed the case. The prosecutor appeals as of right. We affirm.
We disagree with the prosecutor's argument that the search of defendant's person was authorized by the warrant. In Ybarra v Illinois 444 U.S. 85, 91; 100 S Ct 338; 62 L Ed 2d 238 (1979), the Supreme Court noted that persons have a constitutional right guaranteed by the Fourth and Fourteenth Amendments to the reasonable expectation of personal privacy. When a search warrant is executed and persons not named in the warrant are searched on the basis that their presence on the premises made them "containers of the evidence," that constitutional right is eroded. Ybarra, supra; People v Arteberry, 154 Mich. App. 1, 4; 397 N.W.2d 198 (1986), lv gtd 428 Mich. 857 (1987); People v Burbank, 137 Mich. App. 266; 358 N.W.2d 348 (1984), lv den 419 Mich. 917 (1984), cert den 469 U.S. 1190; 105 S Ct 962; 83 L Ed 2d 967 (1985).
In the instant case, defendant did not live in the house that the police were searching, nor did the police have probable cause to search defendant. Because it was not apparent that defendant possessed illegal contraband, the police could not arrest defendant or extend the warrant to search him. People v Secrest, 413 Mich. 521, 528; 321 N.W.2d 368 (1982); Burbank, supra. Therefore, we find that the lower court properly suppressed the evidence and dismissed the case.
Affirmed.