STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, UNPUBLISHED December 28, 2010 v No. 290094 Ingham Circuit Court KENNETH DEWAYNE ROBERTS, LC No. 08-000838-FH Defendant-Appellee. Before: FORT HOOD, P.J., and BORRELLO and STEPHENS, JJ. PER CURIAM. The prosecution appeals as of right from the trial court s order granting defendant s motion to suppress evidence and to dismiss the charge of carrying a concealed weapon, MCL 750.227. We reverse and remand for proceedings consistent with this opinion. Both the United States and Michigan Constitutions guarantee the right against unreasonable searches and seizures. US Const, Am IV, Const 1963, art 1, 11. The lawfulness of a search or seizure is contingent upon its reasonableness. People v Beuschlein, 245 Mich App 744, 749; 630 NW2d 921 (2001). The reasonableness depends on the totality of the circumstances. People v Custer, 465 Mich 319, 328; 630 NW2d 870 (2001). A search or seizure conducted without a warrant is unreasonable unless a recognized exception to the warrant requirement applies. People v Tierney, 266 Mich App 687, 704; 703 NW2d 204 (2005). A valid exception to the warrant requirement occurs when a seizure of an item in plain view occurs. People v Chowdhury, 285 Mich App 509, 516; 775 NW2d 845 (2009). Although the exceptions do not require a warrant, the action must be reasonable and based on probable cause. Id. An unlawful detention or illegal arrest does not necessarily result in the exclusion of evidence. The exclusionary rule is a harsh remedy designed to sanction and deter police misconduct where it has resulted in a violation of constitutional rights and suppression should be used only as a last resort. People v Frazier, 478 Mich 231, 247; 733 NW2d 713 (2007) (further quotations and citations omitted). To determine whether exclusion of evidence is appropriate, the court must evaluate the circumstances of the case in light of the policy served by the exclusionary rule. Id. at 247-249. Suppression of evidence is proper only when an unlawful detention is employed as a tool to procure any type of evidence from a detainee. People v Corr, 287 Mich App 499, 508-509; 788 NW2d 860 (2010). Additionally, evidence need not be excluded if police would have inevitably discovered the evidence regardless of the unconstitutional conduct. People v Stevens (After Remand), 460 Mich 626, 637; 597 NW2d 53-1-
(1999). There is no Fourth Amendment protection for what a person knowingly exposes to the public regardless of whether the exposed object is examined or illuminated by artificial means. People v Hulsey, 176 Mich App 566, 569; 440 NW2d 59 (1989). Police officers were traveling through an apartment complex when they approached defendant who was near his vehicle. The officers testified that defendant saw them, and that he engaged in a furtive gesture while leaning into his vehicle. Although it was approximately 12:30 a.m., lights in the complex illuminated the parking lot. The owner of the apartment complex had obtained a letter of trespass. This document allowed police officers to arrest individuals who were not occupants of the apartment complex. The police officers made contact with defendant, who acknowledged that he did not reside there. Defendant asserted that he was waiting for someone. Officers could see into the vehicle that there was a box of Ziploc bags on the backseat. In his testimony, defendant acknowledged that there was a box of Baggies on the backseat. One of the two police officers testified that, in his eighteen months on the job, he had been called to the apartment complex on 50 to 60 occasions to address complaints of drugs, fights, weapons, and trespassing. Defendant agreed to a search of his person, but refused the officers request for a search of the vehicle. The testimony at the evidentiary hearing diverged after this point. The officers testified that they placed defendant in the back of the police vehicle for safety reasons while they waited for the arrival of a drug-sniffing dog. Defendant testified that he was handcuffed and placed in the police vehicle for ten to fifteen minutes while officers ran a LEIN check and spoke to occupants of the apartment complex. One police officer testified that he was running a check on defendant when the other officer returned to the vehicle and advised that there was a gun visible from the side of the vehicle. When asked if the gun was real or fake, defendant did not answer. Although defendant asserted that the officers handcuffed and detained him for ten to fifteen minutes, the officers asserted that they were merely continuing to investigate the trespass and only took approximately two minutes to discover the gun sticking out from under the seat of the vehicle. The trial court did not resolve the factual disparity regarding the timing of the detention and the type of confinement. Rather, the trial court merely held that there wasn t adequate reasonable suspicion of a crime and dismissed the charge without examining whether the harsh remedy of exclusion of evidence was appropriate. The trial court did not make factual findings and resolve the credibility dispute. However, even assuming without deciding that the detention was improper, the trial court erred in ordering the suppression of evidence. As previously stated, the suppression of evidence is proper only when an unlawful detention is employed as a tool to procure any type of evidence from a detainee. Corr, 287 Mich App at 508-509. Additionally, evidence is not excluded if police would have inevitably discovered the evidence regardless of the unconstitutional conduct. Stevens (After Remand), 460 Mich at 637. Protection is not given to an object that is exposed to the public when illuminated by artificial means. Hulsey, 176 Mich App at 569. In the present case, the officers were able to view the gun sticking out from under the seat, like the box of Baggies, due to the lighting in the parking lot. The officers discovered the item before the canine unit arrived at the scene to sniff the vehicle. Under the circumstances, suppression of the evidence was unwarranted. Frazier, 478 Mich at 247. -2-
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. /s/ Karen M. Fort Hood -3-
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, UNPUBLISHED December 28, 2010 v No. 290094 Ingham Circuit Court KENNETH DEWAYNE ROBERTS, LC No. 08-000838-FH Defendant-Appellee. Before: FORT HOOD, P.J., and BORRELLO and STEPHENS, JJ. BORRELLO, J. (concurring in part and dissenting in part). I agree with the majority s holding that the trial court erred in suppressing the evidence. I write separately because I disagree with the majority s assumption that the police officers detention of defendant was improper. I would hold that the conduct of the police officers in this case did not violate the Fourth Amendment rights of defendant. I. FACTS On the evening of July 10, 2008, Officers Brian Rasdale and Jason Spoelma of the Lansing Police Department were patrolling near Pinebrook Manor Apartments around 12:30 a.m. The officers were in full uniform and were driving a marked police vehicle. There had been problems with drug trafficking, narcotics, weapons offenses and fights in the vicinity of the apartment complex, and there was a valid trespass letter for the apartment complex. According to Officer Rasdale, [a] trespass letter enables the Lansing Police Department to initiate criminal complaints on any subjects that do not reside in that apartment complex. Officer Rasdale stated that he had been to the apartment complex 50 or 60 times in the past eighteen months, and Officer Spoelma stated that he had been to the apartment complex numerous times to investigate complaints of drug dealing, fights and disorderly persons. As the officers pulled into the parking lot of the apartment complex, they observed defendant standing outside and next to his vehicle in the parking lot; Officer Spoelma stated that defendant quickly ducked in... the driver s side of the vehicle for a little while and then exited again, and that was kind of suspicious. It looked like, um, he had gone into the vehicle as soon as he saw us. According to the officers, defendant was in the car for ten to 15 seconds. Officer Spoelma characterized defendant s ducking into the car as a furtive gesture, like maybe he was trying to hide something or maybe retrieving something out of the vehicle. -1-
After defendant got out of the car, he stood next to the car, and the officers approached him, made contact with him and asked him for identification, which defendant provided. Both officers testified that defendant was not free to leave at this time because they were investigating whether he was trespassing. Defendant s identification indicated that he did not reside at Pinebrook Manor Apartments; therefore, defendant was trespassing. According to Officer Rasdale, defendant told the officers that they could search his person and that he didn t have anything on him. Officer Spoelma conducted a Terry 1 pat-down search of defendant s person, which did not uncover anything. After the Terry search, the officers asked defendant for consent to search his automobile, but defendant refused. The officers then placed defendant in the back seat of the police vehicle. According to Officer Spoelma, it was routine for police to detain someone in the back seat of the police car while they complete an investigation. Defendant asserted that he was placed in handcuffs at this time; however both police officers asserted that defendant was not placed in handcuffs when they initially placed him in the back of the police car. At some point during their encounter with defendant, the officers observed a box of sandwich baggies on the back seat of defendant s vehicle. Because such baggies often indicate narcotics activity, the officers called a K-9 unit. Also at some point during their encounter with defendant, some of defendant s friends talked to the officers about defendant, apparently indicating that they were friends and were meeting defendant. According to Officer Rasdale, he heard the friends say that defendant had permission to be there and meet them. While defendant was in the back seat of the police vehicle, Officer Spoelma ran a LEIN check on defendant. The LEIN check came back clean. As Officer Spoelma ran the LEIN check, Officer Rasdale walked around defendant s car and observed a handgun underneath the driver s seat of the car. According to Officer Rasdale, he could see the rear sights of a handgun as well as the handle of the handgun underneath the seat. Officer Rasdale went back to the police vehicle and told Officer Spoelma about the gun, the officers went to defendant s vehicle together, officer Rasdale removed the gun and made it safe. The gun was not loaded, but it had 12 rounds inside the magazine. Thereafter, the officers handcuffed defendant and arrested him for carrying a concealed weapon. The trial court granted defendant s motion to suppress the weapon. In so doing, the trial court ruled that the facts of this case were distinguishable from the facts in People v Jenkins, 472 Mich 26; 691 NW2d 759 (2005), and stated: I think that the Court rules that there is just um, wasn t adequate reasonable suspicion of a crime. Um, the testimony was clear that when the police officer approached the car from a perpendicular angle and the Defendant was on the far side of the car, um, the police the squad car was 50 to 60 feet away with headlights on, but no other, um, police car lights were activated at that point. 1 Terry v Ohio, 392 US 1, 22; 88 S Ct 1868; 20 L Ed 2d 889 (1968). -2-
So, um, the Court finds that the subsequent detention and the search were unlawful and grants the motion to suppress. II. STANDARD OF REVIEW We review a trial court s findings of fact in a suppression hearing for clear error. Jenkins, 472 Mich at 31. However, the [a]pplication of constitutional standards by the trial court is not entitled to the same deference as factual findings. Id., quoting People v Nelson, 443 Mich 626, 631 n 7; 505 NW2d 266 (1993). Therefore, [a]pplication of the exclusionary rule to a Fourth Amendment violation is a question of law that is reviewed de novo. Jenkins, 472 Mich at 31. III. ANALYSIS Officers Spoelma and Rasdale s first contact with defendant occurred when they approached him and asked him for identification after witnessing him outside his car in the parking lot of the apartment complex. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. Hiibel v Sixth Judicial Dist Court of Nevada, 542 US 177, 185; 124 S Ct 2451; 159 L Ed 2d 292 (2004). Allowing identification checks promotes the strong governmental interest of solving crimes and bringing offenders to justice. Id. When defendant supplied his identification, it revealed that he did not live in the Pinebrook Manor Apartments. In light of the trespass letter, the fact that defendant did not live in the apartment complex meant that he was trespassing. At some point after the officers requested his identification, defendant indicated that he did not have anything on him and consented to the officers searching his person. Officer Spoelma then conducted a Terry patdown search of defendant, which did not uncover any evidence. The pat-down search of defendant was a valid search under Terry because it was based on a reasonable suspicion that defendant was engaged in trespassing; therefore the officers were permitted to stop defendant for a brief time and take additional steps to investigate further. Terry, 392 US at 30-31; People v Oliver, 464 Mich 184, 193; 627 NW2d 297 (2001). Moreover, the pat-down search of defendant s person was constitutionally permissible based on defendant s consent. A person may consent to a search. People v Chowdhury, 285 Mich App 509, 524; 775 NW2d 845 (2009). Defendant acknowledged at the suppression hearing that he that he consented to the officers searching his person. Furthermore, he does not argue on appeal that his consent to the search of his person was the result of coercion or duress. Id. After conducting the pat-down search of defendant, the officers placed defendant in the back seat of their patrol car while they investigated further. The officers conduct of temporarily detaining defendant in the back of the patrol car did not violate defendant s Fourth Amendment rights. Under Terry, a police officer may approach and temporarily detain a person for the purpose of investigating possible criminal behavior even if there is not probable cause to arrest the person. Terry, 392 US at 22; Jenkins, 472 Mich at 32. Such a detention does not violate the Fourth Amendment if the officer has a reasonably articulable suspicion that criminal activity is afoot. Jenkins, 472 Mich at 32. The reasonableness of an officer s suspicion of criminal activity must be determined on a case by case basis considering the totality of all the facts and circumstances. Oliver, 464 Mich at 192. [I]n determining whether the totality of the circumstances provide reasonable suspicion to support an investigatory stop, those circumstances -3-
must be viewed as understood and interpreted by law enforcement officers, not legal scholars.... Id., quoting People v Nelson, 443 Mich 626, 632; 505 NW2d 266 (1993). A determination regarding whether there is reasonable suspicion to support an investigatory stop must be based on commonsense judgments and inferences about human behavior. Oliver, 464 Mich at 197, quoting Illinois v Wardlow, 528 US 119, 125; 120 S Ct 673; 145 L Ed 2d 570 (2000). In this case, the circumstances that provide reasonable suspicion to justify the investigative detention of defendant include the fact that the officers observed defendant in an area that was known to have a high level of criminal activity, including drug trafficking, narcotics offenses, weapons offenses and fights, that Officer Rasdale had been called out to the apartments 50 or 60 times in the past eighteen months, that the police knew there was a valid trespass letter, that the police confirmed by examining defendant s identification that defendant did not reside at the apartment complex, and that defendant acted suspiciously and made a furtive gesture, like he was trying to hide something or retrieve something out of the vehicle. Under these circumstances, a brief investigatory detention was lawful under Terry. Moreover, the duration of defendant s detention in the back seat of the police car did not render the detention unreasonable. [T]he brevity of the invasion of the individual s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion. United States v Place, 462 US 696, 709; 103 S Ct 2637; 77 L Ed 2d 110 (1983). Officer Rasdale testified that it would take the K-9 unit, on average, five to ten minutes to arrive. According to defendant s testimony, he was in the back seat of the police vehicle for approximately 15 to 20 minutes. A 15 to 20 minute detention is not unreasonable as long as the officers were diligently pursuing a means of investigation that was likely to quickly confirm or deny their suspicions. See People v Yeoman, 218 Mich App 406, 413; 554 NW2d 577 (1996) (a 45-minute detention was not improper when the investigating officer was diligently pursuing a means of investigation likely to confirm or deny quickly his suspicions); People v Chambers, 195 Mich App 118, 123-124; 489 NW2d 168 (1992) (a 20- minute detention was reasonable when the police were diligently pursuing a means of investigation that was likely to confirm or dispel their suspicions quickly). In this case, the evidence indicated that Officers Spoelma and Rasdale were diligently pursuing their investigation of defendant. Thus, the 15 to 20 minute detention was not unreasonable. About a minute or two after the officers placed defendant in the back seat of the police car, Officer Rasdale walked around defendant s vehicle and observed through a window the rear sights of a black colored handgun and the handle of a handgun underneath the driver s seat of the vehicle. Officer Rasdale did not have to open a door to defendant s vehicle to see the gun; it was in plain view. In situations where the initial intrusion that brings the police within plain view of evidence is supported by one of the recognized exceptions to the warrant requirement, the police may seize evidence in plain view without a warrant. Arizona v Hicks, 480 US 321, 326; 107 S Ct 1149; 94 L Ed 2d 347 (1987). In this case, Office Rasdale discovered the handgun in plain view in defendant s automobile during the course of a lawful Terry detention. Thus, the handgun was properly seized without a warrant. For the reasons explained above, I believe that the police conduct in this case did not violate defendant s Fourth Amendment rights. To the contrary, I would conclude that the police in this case engaged in good police work in compliance with the Fourth Amendment. I therefore -4-
dissent from the majority opinion s assumption that the detention of defendant was improper. However, albeit for different reasons, I concur with the majority s conclusion that the trial court erred in granting defendant s motion to suppress. /s/ Stephen L. Borrello -5-
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, UNPUBLISHED December 28, 2010 v No. 290094 Ingham Circuit Court KENNETH DEWAYNE ROBERTS, LC No. 08-000838-FH Defendant-Appellee. Before: FORT HOOD, P.J., AND BORRELLO AND STEPHENS, JJ. STEPHENS, J. (dissenting). I would remand this matter for an evidentiary hearing to determine whether defendant was lawfully detained at the time the firearm was discovered in his car. As the majority states, conflicting evidence was presented below regarding the circumstances surrounding defendant's detention, including the timing of the detention and the type of the confinement. The trial court did not resolve the inconsistencies nor did it make any determinations regarding the credibility of the various witnesses. These unresolved issues control whether the detention was lawful under the standards set forth in Terry v Ohio, 392 US 1, 22; 88 S Ct 1868; 20 L Ed 2d 889 (1968). I disagree with the majority s conclusion that the legality of the detention in this case is irrelevant in determining whether the exclusionary rule applies. As the majority recognizes, The exclusionary rule is a harsh remedy designed to sanction and deter police misconduct where it has resulted in a violation of constitutional rights and should be used only as a last resort. People v Frazier, 478 Mich 231, 247; 733 NW2d 713 (2007) (quotations and citations omitted). It is only when an unlawful detention has been employed as a tool to procure any type of evidence from a detainee that the evidence is suppressed under the exclusionary rule. People v Kelly, 231 Mich App 627, 634; 588 NW2d 480 (1998), quoting People v Mallory, 421 Mich 229, 240-241, 243, n 8; 365 NW2d 673 (1984) (emphasis in original). Here, defendant is arguing that the police asked his consent to search his vehicle. When consent was denied, defendant was placed in custody, perhaps unlawfully. At that point, the officers observed a firearm in the vehicle while they were waiting for a K-9 unit to arrive. Based on those facts, it could certainly be concluded that an unlawful detention was utilized for the purpose of obtaining the evidence in question. Consequently, it would be proper to apply the exclusionary rule. -1-
Likewise, if the detention was unlawful, the plain view doctrine would not apply. The plain view doctrine allows police officers to seize, without a warrant, items in plain view if the officers are lawfully in a position from which they view the item, and if the item's incriminating character is immediately apparent. People v Champion, 452 Mich 92, 101; 549 NW2d 849 (1996). In the present case, whether the officers were in a lawful position is dependent upon the legality of the detention. If the detention was unlawful, the officers were only in a position to discover the evidence directly because of their improper conduct. Conversely, if the detention was lawful the plain view doctrine renders the search constitutional. Finally, I disagree with the majority s reliance on the inevitable discovery doctrine. The majority correctly explains that exclusion is unnecessary if discovery of the evidence was inevitable despite the unconstitutional conduct. People v Stevens (After Remand), 460 Mich 626, 637; 597 NW2d 53 (1999). If defendant was improperly detained, it follows that discovery was not inevitable. As explained above, the firearm was not discovered until after defendant was detained. Had defendant not been detained, the record demonstrates that defendant would have departed from the scene and the officers would not have had the opportunity to discover the evidence. Because I conclude that each of the prosecution s theories of admissibility are dependent on the legality of the detention, I would remand this matter for an additional hearing to determine the circumstances surrounding the decision to place defendant in custody and the nature of the detention. I would direct the trial court to exclude the evidence if it is determined that the detention was unlawful. /s/ Cynthia Diane Stephens -2-