Opinion
Docket No. 121077.
Decided February 18, 1992, at 9:30 A.M.
Frank K. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Carolyn Schmidt, Assistant Prosecuting Attorney, for the people.
George A. Chatman, for the defendant on appeal.
Before: WEAVER, P.J., and MICHAEL J. KELLY and MARILYN KELLY, JJ.
Following a bench trial, defendant was convicted of possession with intent to deliver 225 or more but less than 650 grams of cocaine, MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2) (a)(ii), and was later sentenced to ten to thirty years in prison. Defendant appeals as of right.
Defendant raises two issues on appeal, the first being whether the trial court abused its discretion in admitting evidence that was obtained as a result of an illegal search and seizure. We find no error.
Officer Mason of the Detroit Police Department testified that, as his squad car approached defendant's parked car, he observed defendant alight from the vehicle, throw a white or clear plastic bag to the ground, and run. Officer Mason's squad car was unmarked and, up to that point, the police had not acted in a manner that would have indicated to a reasonable person that the person was not free to leave. Following defendant's discarding of the first bag, Officer Mason and a fellow police officer apprehended defendant and retrieved a second bag from an inner pocket of defendant's jacket. The two bags were found to contain cocaine.
Clearly, the seizure of the first plastic bag by the police was not illegal. The bag was abandoned by defendant, and the abandonment was not the product of an illegal search or seizure. Before defendant discarded the first bag and fled, the police did not act in any way to restrain his liberty. The first bag containing cocaine was properly seized. People v Mamon, 435 Mich. 1; 457 N.W.2d 623 (1990).
Turning to the second bag of cocaine, we find that it was not the fruit of an illegal search and seizure. Defendant's flight and discard of the first plastic bag containing cocaine formed the reasonable suspicion needed to detain him. Terry v Ohio, 392 U.S. 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Officer Mason's recovery of the first bag containing a powdery substance, which he suspected to be cocaine, then formed the probable cause required to arrest defendant and conduct a search incident thereto. People v Cumbus, 143 Mich. App. 115, 119; 371 N.W.2d 493 (1985).
The second issue raised on appeal is whether the trial court failed to recognize its authority, on a finding of substantial and compelling reasons, to impose a minimum sentence below the statutory minimum.
A sentencing court may depart from the minimum term of imprisonment authorized under MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii) if it finds on the record that there are substantial and compelling reasons to do so. MCL 333.7403(3); MSA 14.15(7403)(3). The court in this case, however, stated that it would sentence defendant to less than the statutory minimum sentence but that it had no discretion to do so. The prosecution argues that the court recognized its discretion, but because it found no substantial and compelling reasons to deviate from the statutory sentence, stated that it was without discretion to reduce defendant's sentence. This Court upon review of the record finds the meaning of the court's statement to be unclear. Therefore, we remand to the trial court for further articulation regarding whether the court found substantial and compelling reasons to deviate from the statutory minimum sentence. If the court was mistaken regarding its discretion, defendant shall be resentenced. People v Windall Hill, 192 Mich. App. 102; 480 N.W.2d 913 (1991).
Defendant's conviction is affirmed, and the case is remanded for proceedings consistent with this opinion. We do not retain jurisdiction.