People v. Anthony

• Decision Date: 22 January 2019
• Docket Number: No. 337793,337793
• Citation: 327 Mich.App. 24,932 N.W.2d 202
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Elijah ANTHONY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

327 Mich.App. 24

932 N.W.2d 202

PEOPLE of the State of Michigan, Plaintiff-Appellant,

v.Robert Elijah ANTHONY, Defendant-Appellee.

No. 337793

Court of Appeals of Michigan.

Submitted March 13, 2018, at Detroit

Decided January 22, 2019, 9:00 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Jon P. Wojtala, Assistant Prosecuting Attorney, for the people.

Lawrence S. Katz for defendant.

Before: Gleicher, P.J., and Boonstra and Tukel, JJ.

Tukel, J. Defendant was charged with unlawful possession of a firearm by a convicted felon and possession of ammunition by a convicted felon, MCL 750.224f. He also was charged with carrying a concealed weapon in a vehicle, MCL 750.227(2), and with possession of a firearm during the commission of a felony, MCL 750.227b. The charges arose from a search of defendant’s car on August 30, 2016, during which police found a .45 caliber semiautomatic pistol on the floorboard of the car.

Following an evidentiary hearing, the trial court suppressed the firearm, finding that the justification for the search was pretextual, and then dismissed the case without prejudice. The prosecution appeals as of right. Because we find that the search complied fully with the Fourth Amendment and was supported by probable cause, we reverse the order suppressing the gun, vacate the order dismissing the case, and remand for further proceedings.

I. BASIC FACTS

On August 30, 2016, Detroit Police Department Officer Richard Billingslea was on routine patrol with his partner, Hakim Patterson, in a fully marked scout car. The officers were in the area of 6304 Bluehill Street in Detroit when Officer Billingslea observed defendant’s parked Ford F-150 pickup truck farther up the street, facing in the direction from which the officers' car was coming. Officer Billingslea, who was the sole witness at the evidentiary hearing, testified that the F-150 was "parked in the middle of the street," by which, he testified, he meant that it was impeding traffic. The officers decided to investigate the alleged traffic offense and drove to where defendant’s car was parked, pulling up alongside it. As they drove down the street to the where the F-150 was located, they did not have their overhead lights activated. As discussed later, the trial court expressly found that the officer’s testimony that the F-150 was "parked in the middle of the street" was false, finding instead that "[i]t looks to me like it’s on the other side of the street. It certainly is not in the video in the middle of the street. The police car is in the middle of the street."¹

The officer testified that on that August evening, before dark, the windows of the police car were down; the F-150 had tinted windows, and at least one of them was partially down. The officer’s testimony regarding the windows of both vehicles is confirmed by the videotape, which is discussed later in this opinion. As the police car approached the area where defendant’s car was parked, Officer Billingslea, while still inside the police car, immediately smelled a strong odor of burned marijuana. Officer Billingslea determined that he had probable cause to investigate possible offenses involving marijuana, and he and his partner then got out of the police car. They approached defendant’s pickup on foot, determined that defendant was in the driver’s seat, ordered him to roll his window down the rest of the way, and ordered him out of the truck. The officers handcuffed defendant and placed him in the backseat of the police car. A second individual who had been in the back seat of the F-150 also was ordered out of the truck, was investigated, and ultimately was released without charges. After the two men had been removed, the officers searched and found residue of smoked marijuana in a cup holder inside the truck. The police then continued their search, during which Officer Billingslea found the .45 caliber pistol. After arriving at the police station, the officer also wrote defendant a ticket for impeding traffic.

At some point after the occupants of the F-150 had been removed from it and the search had taken place, unidentified citizens began videotaping the events with their phones. One of the videotapes was introduced at the hearing and made part of the record.²

The trial court’s ruling as to the legality of the search was as follows:

Now, the officer says specifically—he said on a number of occasions the vehicle was in the middle of the street and he implicated [sic] that it was impeding traffic, and that would have to be the basis for the detention that occurred.

The officer did indicate that there was residue of marijuana in the cup holder. He said it was 100 percent marijuana. That’s not really relevant for the purposes of this case. What I—when I look at the video in People’s Exhibit 1, that vehicle is not in the middle of the street. It looks to me like it’s on the other side of the street. It certainly is not in the video in the middle of the street. The police car is in the middle of the street.

Based on what this Court’s already indicated, that would be pretext for the stop if the car would be in the middle of the street. In the video in People’s Exhibit 1, it does not indicate that in the Court’s opinion. So as a result, I believe that there was a violation of the Fourth Amendment pursuant to [ Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ]. There was not a reasonable suspicion to approach the vehicle and the evidence garnered from that vehicle will be suppressed. [Emphasis added.]

II. STANDARD OF REVIEW

"We review for clear error a trial court’s findings of fact in a suppression hearing, but we review de novo its ultimate decision on a motion to suppress." People v. Hyde , 285 Mich. App. 428, 436, 775 N.W.2d 833 (2009). "A finding of fact is clearly erroneous if, after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made." People v. Everard , 225 Mich. App. 455, 458, 571 N.W.2d 536 (1997).

"We review de novo whether the Fourth Amendment was violated and whether an exclusionary rule applies." Hyde , 285 Mich. App. at 436, 775 N.W.2d 833.

III. ANALYSIS

A. FOURTH AMENDMENT PRINCIPLES

"The Fourth Amendment [of the United States Constitution] provides that ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....’ " Terry , 392 U.S. at 8, 88 S.Ct. 1868. The Michigan Constitution provides the same protection as the United States Constitution. People v. Levine , 461 Mich. 172, 178, 600 N.W.2d 622 (1999).

"[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.... Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification." [ People v. Sinistaj , 184 Mich. App. 191, 196, 457 N.W.2d 36 (1990), quoting Florida v. Royer , 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion by WHITE , J.).]

The reason that officers may freely approach citizens on the street without implicating the Fourth Amendment is because "[t]he purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’ "

United States v. Mendenhall , 446 U.S. 544, 553-554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), quoting United States v. Martinez-Fuerte , 428 U.S. 543, 554, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). "If there is no detention—no seizure within the meaning of the Fourth Amendment—then no constitutional rights have been infringed." Royer , 460 U.S. at 498, 103 S.Ct. 1319 (opinion by WHITE , J.).

In general, a "seizure" occurs for Fourth Amendment purposes when a reasonable person would have believed that he or she was not free to leave. Mendenhall , 446 U.S. at 554, 100 S.Ct. 1870. However, there are circumstances in which a person will not wish to leave, not because of actions by police but for the individual’s own reasons; such a person is not "seized." See Florida v. Bostick , 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Thus, a more precise definition of a seizure is "whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street or in an airport lobby, and it applies equally to encounters on a bus." Id. at 439-440, 111 S.Ct. 2382 ; see also People v. Shabaz , 424 Mich. 42, 66, 378 N.W.2d 451 (1985). "[W]hat constitutes a restraint on liberty prompting a person to conclude that he is not free to ‘leave’ will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs," Michigan v. Chesternut , 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), which is why in determining whether a seizure occurred, a court must consider the totality of the circumstances.

Further, while the Michigan and United States Constitutions' protections against unreasonable searches and seizures generally require a warrant to search, see Horton v. California , 496 U.S. 128, 133 n. 4, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) ; In re Forfeiture of $176,598 , 443 Mich. 261, 265, 505 N.W.2d 201 (1993), several exceptions exist such that a warrant is not always required. Relevant for the circumstances here, no warrant is...