People v. Barbarich

Decision Date01 February 2011
Docket NumberDocket No. 290772.
Citation807 N.W.2d 56,291 Mich.App. 468
CourtCourt of Appeal of Michigan — District of US
PartiesPEOPLE v. BARBARICH.

OPINION TEXT STARTS HERE

Bill Schuette, Attorney General, B. Eric Restuccia, Solicitor General, Kym L. Worthy, Prosecuting Attorney, and Lori Baughman Palmer, Assistant Prosecuting Attorney, for the people.

Boulahanis & Associates, P.C., Dearborn (by Gregory J. Boulahanis), for defendant.

Before: GLEICHER, P.J., and ZAHRA and KIRSTEN FRANK KELLY, JJ.

KIRSTEN FRANK KELLY, J.

This prosecutor's appeal requires us to decide what amount of information supplied by an unnamed citizen, who provides a face-to-face contemporaneous tip about potentially dangerous or erratic driving, is sufficient to justify an investigative stop of a moving vehicle. On defendant's motion to suppress evidence, the circuit court dismissed defendant's charge of operating a motor vehicle while intoxicated, MCL 257.625, on the ground that the police officer lacked a reasonable articulable suspicion that defendant was involved in criminal activity. We disagree and reverse.

I. BASIC FACTS

On March 17, 2008, defendant was issued a citation for driving while intoxicated. Defendant moved to suppress the evidence of his intoxication and dismiss the charge on the basis that the stop of his vehicle was unreasonable and unconstitutional.

The district court held an evidentiary hearing on July 11, 2008. The only witness to testify was Michigan State Trooper Christopher Bommarito, who had stopped defendant's vehicle and issued defendant the citation. Bommarito testified that on the evening of March 17, 2008, which was Saint Patrick's Day, he was on regular patrol, driving a fully marked police car. As part of his assignment that evening, he was conducting a property inspection at a bar called Malarkey's. Bommarito indicated that the bar's parking lot was full of patrons, a “big party tent” was set up in the parking lot, and he was there to look for problems, such as people urinating outside. After his inspection, Bommarito left the Malarkey's parking lot and headed south on Dix Road. Immediately after leaving the parking lot, a red pickup truck passed Bommarito's vehicle, heading northbound on Dix Road. Another vehicle, defendant's, was traveling in front of the red pickup. As Bommarito passed the red pickup, the driver of that vehicle made eye contact with Bommarito, pointed directly to defendant's vehicle in front of her, and mouthed the words “almost hit me.” Bommarito immediately made a U-turn, turned on his emergency lights and siren, and followed defendant's vehicle into the Malarkey's parking lot. Bommarito approached defendant's vehicle and discovered that defendant was intoxicated. During the evidentiary hearing, Bommarito admitted that he had made no attempt to speak to the woman in the red pickup before stopping defendant and that he had not personally observed defendant driving in a manner that would have justified a stop. In other words, Bommarito stopped defendant's vehicle solely on the basis of the woman's action of pointing to defendant's vehicle and mouthing the words “almost hit me.”

The district court denied without explanation defendant's motion to suppress. Before the matter could proceed to trial, defendant appealed the district court's decision in the circuit court, arguing that Bommarito lacked a reasonable suspicion to stop his vehicle. The circuit court reversed on the basis that Bommarito had no reasonable, articulable suspicion that a crime was afoot, but merely had a hunch, and therefore the stop violated defendant's Fourth Amendment rights. It dismissed the charge against defendant.

Plaintiff then filed leave to appeal in this Court. Initially, this Court denied leave to appeal, People v. Barbarich, unpublished order of the Court of Appeals, entered June 3, 2009 (Docket No. 290772), and the matter was appealed in our Supreme Court. In lieu of granting leave to appeal, the Court remanded the case to this Court “for consideration as on leave granted.” People v. Barbarich, 485 Mich. 1059, 777 N.W.2d 155 (2010). We now consider whether the circuit court erred by granting defendant's motion to suppress.

II. STANDARD OF REVIEW

We review de novo the circuit court's ultimate ruling on a motion to suppress evidence. People v. Davis, 250 Mich.App. 357, 362, 649 N.W.2d 94 (2002). However, we review its factual findings for clear error. Id. “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made.” People v. Mullen, 282 Mich.App. 14, 22, 762 N.W.2d 170 (2008) (citation and quotation marks omitted). We overstep our review function if we substitute our judgment for that of the trial court and make independent findings.” People v. Bolduc, 263 Mich.App. 430, 436, 688 N.W.2d 316 (2004) (citation and quotation marks omitted).

III. GENERALLY APPLICABLE LAW

The Fourth Amendment of the United States Constitution and article 1, § 11 of the Michigan Constitution protect against unreasonable searches and seizures.1 Generally, searches or seizures conducted without a warrant are presumptively unreasonable and, therefore, unconstitutional. People v. Champion, 452 Mich. 92, 98, 549 N.W.2d 849 (1996). This does not mean that all searches and seizures conducted without a warrant are forbidden; only those that are unreasonable. The United States Supreme Court has carved out numerous exceptions to the general rule that warrantless searches are unreasonable using a test that “balances the governmental interest that justifies the intrusion against an individual's right to be free of arbitrary police interference.” People v. Faucett, 442 Mich. 153, 158, 499 N.W.2d 764 (1993). Thus, the higher the governmental interest, the more likely a warrantless search or seizure is to be reasonable, especially if the implicated individual interest is low.

As subjective as this test may be, several categories of permissible warrantless searches and seizures are well established in Fourth Amendment jurisprudence, including “exigent circumstance, searches incident to a lawful arrest, stop and frisk, consent, and plain view.” People v. Brzezinski, 243 Mich.App. 431, 433, 622 N.W.2d 528 (2000), citing In re Forfeiture of $176,598, 443 Mich. 261, 265, 505 N.W.2d 201 (1993), and People v. Jordan, 187 Mich.App. 582, 586, 468 N.W.2d 294 (1991). Each of these exceptions, however, still requires reasonableness and probable cause. Brzezinski, 243 Mich.App. at 433, 622 N.W.2d 528. While each of these categories of searches and seizures has been deemed reasonable after a balancing of the relevant interests, the ultimate determination whether a particular search is reasonable is fact-intensive and must be measured by examining the total circumstances of each case. See Mullen, 282 Mich.App. at 21, 762 N.W.2d 170. Generally, if evidence is seized in violation of the constitutional prohibition against unreasonable searches and seizures, it must be excluded from trial. People v. Chowdhury, 285 Mich.App. 509, 516, 775 N.W.2d 845 (2009).

The only exception applicable in the present case is the investigative stop, also known as a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under this doctrine, if a police officer has a reasonable, articulable suspicion to believe a person has committed or is committing a crime given the totality of the circumstances, the officer may briefly stop that person for further investigation. People v. Christie (On Remand), 206 Mich.App. 304, 308, 520 N.W.2d 647 (1994), citing Terry. Moreover, under Terry, a police officer may approach and temporarily detain a person for the purpose of investigating possible criminal behavior even if probable cause does not exist to arrest the person. Terry, 392 U.S. at 22, 88 S.Ct. 1868; People v. Jenkins, 472 Mich. 26, 32, 691 N.W.2d 759 (2005). The scope of any search or seizure must be limited to that which is necessary to quickly confirm or dispel the officer's suspicion. People v. Yeoman, 218 Mich.App. 406, 411, 554 N.W.2d 577 (1996).

When a court is called upon to determine whether a defendant's Fourth Amendment rights have been violated in the context of a Terry stop, it should view the totality of the circumstances in light of commonsense judgments and inferences about human behavior, People v. Horton, 283 Mich.App. 105, 109, 767 N.W.2d 672 (2009), and should be careful not to apply overly technical reviews of a police officer's assessment of whether criminal activity is afoot, Faucett, 442 Mich. at 168, 499 N.W.2d 764. Further, when the circumstances involve an informant's tip, courts must examine whether the tipster's information contained sufficient indicia of reliability to provide law enforcement with a reasonable suspicion that would justify the stop. Faucett, 442 Mich. at 168, 499 N.W.2d 764. To assess the reliability of a tip, the Michigan Supreme Court has mandated that courts consider, given the totality of the circumstances, (1) the reliability of the particular informant, (2) the nature of the particular information given to the police, and (3) the reasonability of the suspicion in light of the above factors.” People v. Tooks, 403 Mich. 568, 577, 271 N.W.2d 503 (1978).

A. FEDERAL JURISPRUDENCE: UNITED STATES v. WHEAT

No precedentially binding Michigan case has addressed the exact factual situation before this Court, i.e., an investigative stop of a moving automobile based solely on a citizen informant's face-to-face tip about driving that potentially poses a danger to persons or property. However, the United States Court of Appeals for the Eight Circuit has considered a factual situation similar to the one at issue. In United States v. Wheat, 278 F.3d 722, 724 (C.A.8, 2001), a citizen driving on the highway called 911 and reported that a tan Nissan with a license plate beginning with W–O–C was...

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