Evidence allowed in drug case



L’ANSE – Evidence obtained from the inventory search of a Flint man accused of transporting a variety of prescription drugs to the Keweenaw for sale can be used at trial, a judge ruled Tuesday in Baraga County Circuit Court.

Harvey Sanders Jr. is scheduled to stand trial later this month on several counts of possessing prescription drugs with intent to deliver them. A jury was unable to reach a verdict on the charges in January.

Michigan State Police troopers pulled Sanders over last May for allegedly driving erratically in L’Anse. Neither he or his passenger had a driver’s license, which triggered the inventory search troopers must perform when a vehicle is to be towed.

During the search, troopers pulled back a carpet covering the spare tire and found an envelope by the rear wheel well. It was later found to contain close to 200 pills of different kinds.

In testimony Friday, Sanders said the trunk was secured by screws, which would have precluded removing the carpet without tearing it.

Tuesday’s hearing included photographs of the trunk taken during a Friday visit to the impound lot where it was stored.

Prosecutor Joseph O’Leary said he was able to replicate the troopers’ experience of removing the carpet.

“Did I tear anything when I did that?” he asked Baraga County Undersheriff Rick Johnson, who accompanied O’Leary and Gemignani to the lot.

“No,” Johnson said.

Sanders’ attorney, David Gemignani, said there were inconsistencies in the troopers’ testimony about who was present when the bag was discovered and its position in relation to the rear wheel well. He also said the two rationales offered by the troopers conflicted with each other. In addition to the inventory search, troopers Friday said they believed there was probable cause for the search due to the presence of marijuana in a center console.

“Somehow, we came to court on Friday and the officers are saying probable cause … they can’t have it both ways, Your Honor,” he said.

Gemignani said the Michigan State Police’s policy, which allows an inventory search for any part of the car that may contain property, is overly broad.

“Does that allow them to then take the tires off of a vehicle, cut them open and see if there’s contraband inside the tires?” he said.

O’Leary said the MSP’s inventory search policy alone should make the evidence admissible. Additionally, he said, Trooper Dieter Kochan’s original police report mentioned “indicators of criminal activity,” such as panic driving and attempts to think over and craft their answers.

Judge Charles Goodman likened the situation to a 1982 U.S. Supreme Court case in which officers found contraband in the air vents of a car. In addition to meeting the standards for an inventory search, he said, the marijuana gave the police exigent circumstances to look for additional contraband that might expose them to danger to serve as additional evidence of criminality.

“Certainly, this area of the vehicle is an area where property could be stored,” he said. “In fact, maybe if a person was carrying valuable property … maybe they would put it where the average person wouldn’t look, such as under the carpet.”

Goodman also disagreed with Gemignani’s statement that the MSP policy is overly broad. The search is to find property to protect police against claims about stolen property and to protect the property, he said.

Sanders is scheduled to be retried starting May 28.

Sanders is charged with five 20-year felony counts of possessing less than 50 grams of a controlled substance with intent to deliver – one each for cocaine, morphine, hydromorphone, methadone and oxycodone.

He also faces a seven-year felony charge of possession with intent to deliver dihydrocodeine and four-year charges of possession with intent to deliver alprazolam and phenobarbital.

Because of a habitual offender notice, Sanders could be sentenced to life in prison if convicted of any of the six felonies of five years or more. The other two felonies could be enhanced to up to 15 years.