Motion to suppress; Scope of consent to search a vehicle for weapons; The plain-view or plain-feel exception to the warrant requirement; People v Champion; Remand for an evidentiary hearing

The court held that the officer (D) “lawfully searched the center console of defendant’s vehicle because doing so was within the scope of defendant’s consent to search [it] for weapons.” But as to the search and seizure of the glass tube evidence defendant moved to suppress, the court remanded for an evidentiary hearing. Defendant was charged with possession of a controlled substance after D found a glass tube containing meth in defendant’s vehicle. It was undisputed that he “freely and voluntarily consented to a search of his vehicle for weapons.” The trial court concluded that D’s “search of the center console did not exceed the scope of” that consent “because a reasonable person would have understood that consenting to search a vehicle for weapons included consent to search any location in [it] that a weapon could be concealed, such as the center console.” The court agreed. As to “the search and seizure of [the] glass tube itself, the trial court reasoned that it was justified by the plain-view or plain-feel exception to the warrant requirement.” But it was unclear from the stipulated facts whether D “observed the glass tube before picking it up, and, notably, the prosecution never claimed that” he did. Based on the record, the court could “only conclude that the prosecution failed to carry its burden of establishing that [D] saw the glass tube before seizing it, which necessarily means that the trial court erred by holding that [D’s] seizure of the glass tube was permissible under the plain-view exception to the warrant requirement. The second problem with” its ruling was that there was no record evidence “to support that the incriminating nature of the glass tube would have been immediately apparent to [D] on the basis of his training and experience.” The court found that remand was necessary for the trial court to “hold an evidentiary hearing in which it can hear from [D] and determine whether he had training and experience that would have made the incriminating nature of the glass tube immediately apparent.” If it then concludes the tube was illegally seized, it can “decide whether the exclusionary rule should apply.” It will also “presumably be able to ascertain whether [D] saw the glass tube before seizing it, and thus decide whether the plain-view or the plain-feel” exceptions apply. Vacated and remanded.