RULING UPHOLDS BAY CITY SEARCH

A sharply divided Michigan Supreme Court this week ruled that Bay
City police had the right to inspect photographs that showed a
suspect's pal posing with packaged pot.

In a 4-3 decision that centered on constitutional protections against
search and seizure, the high court overturned decisions by the
Michigan Court of Appeals and Isabella County's district and circuit
courts.

The lower courts all had ruled that police were out of line to look
at the photos, which eventually prompted a raid of Michael R.
Custer's home in Mount Pleasant and led to charges of maintaining a
drug house, delivery and manufacture of marijuana and conspiracy.

With the photos declared inadmissible in court, the search warrant
and marijuana discovered at Custer's home also were thrown out.

But the Supreme Court returned the case to the Court of Appeals for a
decision on whether the search of the Chippewa Road home was properly
conducted.

The courts were holding off on deciding that issue until determining
whether the photos were properly seized. If the search is upheld,
felony charges against Custer, 26, will be reinstated.

At issue in Monday's decision was whether police had the right to
look at photographs that Custer had in his pocket when police stopped
him and his friend on suspicion of trespassing near a Bay City
residence on Garfield Avenue on March 27, 1998.

According to court records, police suspected that Custer and his
friend had been drinking alcohol, and told them to call a tow truck
to move their vehicle.

When Custer's friend pulled money from his pocket to prove he could
afford the tow charge, police say, a small bag of marijuana fell from
his pocket.

The officer patted down Custer and his friend, according to court
records, to ensure there was no weapon on them. While doing so, the
officer felt what he said he suspected was "blotter acid," a
hallucinogenic drug, in Custer's front pocket. The officer pulled out
the items, which turned out to be photographs, and placed them on top
of the car.

After completing the search and finding no weapons, the officer
looked at the photos, which depicted Custer's friend at his home
posing with several pounds of packaged marijuana, according to a Bay
City police report.

Bay City police asked Mount Pleasant police to check Custer's
address. When they peeked in the windows and saw the furniture
matched that in the photos, they obtained a search warrant and seized
more than 5 kilograms of marijuana, according to the court record.

Charges of maintaining a drug house, manufacturing marijuana and
conspiracy were brought against Custer in Isabella County District
Court in 1998.

But the district judge dismissed the charges against Custer, saying
that the police had no right to examine the photos or use them to
obtain a search warrant for his home. An Isabella County circuit
judge upheld that ruling, as did the Michigan Court of Appeals.

Isabella County prosecutors appealed to the Supreme Court.

The Supreme Court considered four issues - whether police had the
right to detain Custer, pat him down, seize his photos and turn them
over to look at them.

The majority opinion of the court was that the police acted properly
on all counts.

Justice Steven J. Markman wrote that since police believed that
Custer had LSD in his pocket, they were justified in looking at the
item, even if it turned out to be something different.

"The fact that the officer is ultimately wrong in his assessment of
the object does not render the seizure unlawful," he wrote.

Once the pictures were out of Custer's pocket, Markman wrote, he no
longer had an "expectation of privacy" regarding them.

But Justice Michael F. Cavanagh wrote in dissent that the majority
opinion "chips away at the protections afforded by the Fourth
Amendment of our United States Constitution," to be free from
unwarranted searches and seizures by government agents.

Cavanagh, with agreement from two other justices, argued that police
had the right only to frisk Custer for a weapon, and not to remove
anything else from his pockets. His only known offense, Cavanagh
said, was "guilt by association."

"The officer's knowledge that blotter acid is often carried on
cardboard and that such pieces of cardboard would fit into a pocket
do not support a conclusion that this defendant ... would be carrying
blotter acid in his pants," Cavanagh wrote.

The Times was unable to reach Custer, his attorney or Isabella County
Prosecutor Larry Burdick for comment.