Detroit police officers, acting with an informant, purchased heroin at a residence suspected of serving as a drug distribution site. The same day, during a thirty-minute period of surveillance, police observed seven persons make short visits to the site. On the basis of this information, the police the next day obtained a search warrant authorizing them to search the residence and "Doug," the man who had sold the heroin.
The police knocked on the door and announced
Arterberry was charged with possession with intent to deliver various controlled substances. At Arterberry's preliminary examination, the district judge granted his motion to dismiss the charges on the basis that the search of his person for the key exceeded the scope of the warrant. The Detroit Recorder's Court and the Court of Appeals affirmed. We reverse and remand for trial.
The police acted within the scope of the warrant when they opened the toolbox containing the controlled substances. Upon discovering the controlled substances, the police had probable cause to arrest all seven occupants for loitering in a place of illegal occupation or business.
Since the officers had probable cause to arrest Arterberry and the other occupants, the search was proper: had the occupants been arrested, they could have then been searched incident to the arrest.
The police acted properly in searching the seven occupants for the key.
The Recorder's Court and the Court of Appeals relied on the United States Supreme Court's decision in Ybarra v Illinois, 444 U.S. 85; 100 S.Ct. 338; 62 L Ed 2d 238 (1979), in affirming the district judge's dismissal of the charges. In Ybarra, on the basis of the information that a bartender at a public bar possessed heroin, the police obtained a warrant permitting them to search the bartender, identified as "Greg," and the premises of the bar. The police searched "Greg" and the bar and conducted a Terry weapons patdown of everyone else in the bar. The search of the bar and of "Greg" did not disclose any illegal substances. The officers then searched one of the patrons, Ybarra, again, this time finding heroin in a cigarette packet.
In contrast to the instant case, the police in Ybarra did not have probable cause to arrest the defendant before engaging in the challenged search. In Ybarra, the police did not, while searching pursuant to the warrant, discover controlled substances. In Ybarra, the police had no information that the bar itself was a dope house. In Ybarra, the site of the search was a public bar open to everyone, not a restricted-entry private residence.
In the instant case, because the police had probable cause to arrest all the occupants, who could then have been searched incident to arrest, they acted properly in searching Arterberry for the key.
Reversed and remanded for trial.
RILEY, C.J., and BRICKLEY, CAVANAGH, BOYLE, ARCHER, and GRIFFIN, JJ., concurred with LEVIN, J.