People v. Chowdhury

• Citation: 775 N.W.2d 845,285 Mich. App. 509
• Decision Date: 10 September 2009
• Docket Number: Docket No. 288696.
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE v. CHOWDHURY.

775 N.W.2d 845

285 Mich. App. 509

PEOPLE v. CHOWDHURY.

Docket No. 288696.

Court of Appeals of Michigan.

Submitted August 5, 2009, at Detroit.

Decided September 10, 2009, at 9:00 a.m.

Lori Grigg Bluhm, City Attorney, and Allan T. Motzny, Assistant City Attorney, for the plaintiff.

Richard A. Levitt for the defendant.

Before: STEPHENS, P.J., and JANSEN and WILDER, JJ.

PER CURIAM.

Plaintiff, the city of Troy (City), appeals by leave granted the circuit court's denial of leave to appeal, which allowed to stand the district court's order striking down a City ordinance and suppressing certain evidence collected from defendant during a preliminary breath test (PBT). Having found no error in the district court's ruling or the circuit court's denial of leave to appeal, we now affirm.

I

A number of young adults under 21 years of age were allegedly drinking alcoholic beverages at a house party in the City. Police officers responded to a call and arrived to find a group of individuals leaving the party on foot. The officers detained the group of young adults, which included defendant. An officer asked each of the young adults whether he or she had been drinking alcohol. Some of the young adults indicated that they had been drinking, and others indicated that they had not. The officer divided the young adults into two smaller groups, separating those who admitted that they had been drinking from those who denied drinking at the party. The officers then proceeded to administer PBTs to the young adults. One of the officers administered a PBT to defendant, which resulted in a reading of "0.025." It is undisputed that the officer did not request defendant's consent before administering the PBT. Neither that particular officer, nor any other officer, obtained a search warrant before administering the PBTs.

The City ordinance at issue in this case, Troy Ordinance § 98.10.03, provides in relevant part:

A person less than 21 years of age shall not purchase or attempt to purchase alcoholic liquor, consume or attempt to consume alcoholic liquor, or possess or attempt to possess alcoholic liquor. A person who violates this section is guilty of a misdemeanor....

* * *

A peace officer who has reasonable cause to believe a person less than 21 years of age has consumed alcoholic liquor may require the person to submit to a preliminary chemical breath analysis. A peace officer may arrest a person based in whole or in part upon the results of a preliminary chemical breath analysis. The results of a preliminary chemical breath analysis or other acceptable blood alcohol test are admissible in a criminal prosecution to determine whether the minor has consumed or possessed alcoholic liquor.

Furthermore, Troy Ordinance § 98.10.04 provides in relevant part that a "person less than 21 years of age who refuses to submit to a preliminary chemical breath analysis ... is responsible for a civil infraction and may be ordered to pay a civil fine of not more than $100.00."

Defendant testified before the district court that the officers had indicated that he and the others were required take a PBT. According to defendant and other witnesses, the officers informed the young adults that they would be taken to the police station—and possibly go to jail—if they did not comply by submitting to the PBTs. Defendant testified that he believed that he had no choice but to submit to the PBT. Defendant and other witnesses stated that the officers had been aggressive and had used profane language toward the young adults. Defendant testified that he had felt intimidated and that he had therefore submitted to the PBT without objecting and without asking any questions of the officers.

After having been charged with violating Troy Ordinance § 98-10-03, defendant moved in the district court to suppress the results of the PBT. Defendant argued that the ordinance was unconstitutional because it purported to allow a police officer to perform a warrantless search, because warrantless searches are generally considered unreasonable unless an exception applies, and because no exception to the warrant requirement was applicable in this case. In support of his position, defendant cited two cases in which the United States District Court for the Eastern District of Michigan had ruled that a similarly worded ordinance and a similarly worded state statute were unconstitutional. Defendant at all times maintained that the police officers had been aggressive, that he had felt compelled to comply with the officers' directions, and that he had not voluntarily submitted to the PBT.

The district court held oral argument on defendant's motion and heard the testimony of several witnesses. The district court ruled that Troy Ordinance § 98-10-03 was unconstitutional on its face, that the warrantless search of defendant's person had been unreasonable, and that no exception to the warrant requirement had been applicable on the facts of this case. Therefore, the district court suppressed the evidence collected from defendant during the PBT.¹

The City subsequently sought leave to appeal the district court's ruling in the Oakland Circuit Court. The circuit court held no oral argument and decided the City's application for leave to appeal on the basis of the written submissions alone. In a succinct but complete opinion and order, the circuit court observed that it had surveyed the relevant caselaw and had found no decisions on point, other than the two federal cases cited by defendant before the district court. The circuit court opined that "[t]here is nothing from the appellate courts upon which to base the reversal of the district court" and that the "district court's decision was correct insofar as the ordinance is unconstitutional...." Accordingly, the circuit court denied the City's application for leave to appeal the district court's ruling.

We granted leave to appeal to consider this issue of first impression for the Michigan appellate courts. People of Troy v. Chowdhury, unpublished order of the Court of Appeals, entered March 20, 2009 (Docket No. 288696).

II

The constitutionality of an ordinance is reviewed de novo, People v. Barton, 253 Mich.App. 601, 603, 659 N.W.2d 654 (2002), as are all other questions of constitutional law, People v. LeBlanc, 465 Mich. 575, 579, 640 N.W.2d 246 (2002). We will not disturb a trial court's² findings of fact at a suppression hearing unless they are clearly erroneous. People v. Farrow, 461 Mich. 202, 209, 600 N.W.2d 634 (1999). However, the ultimate question whether evidence should be suppressed is an issue of law for the court. People v. Dungey, 235 Mich. 144, 146-147, 209 N.W. 57 (1926). "Questions of law relevant to a motion to suppress evidence are reviewed de novo." People v. Hawkins, 468 Mich. 488, 496, 668 N.W.2d 602 (2003).

III

We cannot conclude that the circuit court erred by denying the City's application for leave to appeal, thereby allowing to stand the district court's order striking down Troy Ordinance § 98.10.03 and suppressing the evidence collected from defendant during the PBT.

The United States District Court for the Eastern District of Michigan has already held a substantially similar Bay City ordinance and a substantially similar state statute unconstitutional. Spencer v. Bay City, 292 F.Supp.2d 932 (E.D.Mich., 2003); Platte v. Thomas Twp., 504 F.Supp.2d 227 (E.D.Mich., 2007). In the instant matter, the district court cited these two federal cases as persuasive authority, ruling that Troy Ordinance § 98.10.03 "is too broad," that "requesting someone to submit to a PBT is a search," and that the police were required to obtain a warrant before administering the PBTs unless it could be shown that one of the exceptions to the search warrant requirement applied. As discussed previously, the circuit court agreed, finding no Michigan caselaw on which to base a reversal of the district court's ruling.

A

The City argues that the federal caselaw relied on by the district and circuit courts failed to adequately address the "special needs" exception to the search warrant requirement. The City contends that the "special needs" exception should be applied in this case because there is a compelling state interest in protecting young people from the dangers of alcohol abuse and in protecting the general public from the potential consequences of alcohol abuse by young persons.

It is true, as the City points out, that we are not bound by the decisions of lower federal courts. Abela v. Gen. Motors Corp., 469 Mich. 603, 606, 677 N.W.2d 325 (2004). However, both Spencer and Platte thoroughly discussed the issues presented in the instant case and specifically refute the City's argument that the "special needs" exception to the search warrant requirement should apply.

"Both the United States Constitution and the Michigan Constitution guarantee the right against unreasonable searches and seizures. The Michigan Constitution in this regard is generally construed to provide the same protection as the Fourth Amendment of the United States Constitution." People v. Jones, 279 Mich.App. 86, 90-91, 755 N.W.2d 224 (2008) (citations omitted); see also U.S. Const. Am. IV; Const. 1963, art. 1, § 11. "`The constitutions do not forbid all searches and seizures, only unreasonable ones.... The applicable test in determining the reasonableness of an intrusion is to balance the need to search, in the public interest, for evidence of criminal activity against invasion of the individual's privacy.'" People v. Wilkens, 267 Mich.App. 728, 733, 705 N.W.2d 728 (2005) (citation omitted).

"Ordinarily, searches or seizures conducted without a warrant are unreasonable per se. And, generally, when evidence has been seized in violation of the constitutional prohibition against unreasonable searches and seizures, it must be excluded from trial." People v. Dagwan, 269 Mich.App. 338, 342, 711 N.W.2d 386 (2005) (citation omitted). "There are, however, a number of...