People v. Green

• Decision Date: 14 April 2004
• Docket Number: Docket No. 241615.
• Citation: 677 N.W.2d 363,260 Mich. App. 392
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Norbert GREEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

677 N.W.2d 363

260 Mich. App. 392

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Norbert GREEN, Defendant-Appellant.

Docket No. 241615.

Court of Appeals of Michigan.

Submitted December 9, 2003, at Detroit.

Decided January 22, 2004, at 9:00 a.m.

Released for Publication April 14, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Marilyn J. Day, Assistant Prosecuting Attorney, for the people.

Douglas A. McKinney, Auburn Hills, for the defendant on appeal.

Before: SCHUETTE, P.J., and MURPHY and BANDSTRA, JJ.

BANDSTRA, J.

Defendant was convicted of carrying a concealed weapon (CCW), MCL 750.227; resisting or obstructing a police officer, MCL 750.479; driving while under the influence of intoxicating liquor (OUIL), MCL 257.625(1)(a); operating a vehicle with a suspended or revoked license (DWLS), MCL 257.904; and possession of a firearm while under the influence of intoxicants, MCL 750.237. He received concurrent jail sentences of 153 days for the CCW conviction, 122 days for the resisting or obstructing conviction, sixty days for the OUIL conviction, thirty days for the DWLS conviction, and ninety days for the possession of a firearm conviction. He appeals as of right. We affirm.

Basic Facts

Defendant was arrested after he drove his car, which appeared to be significantly damaged, in an erratic fashion across the grass of Ford Motor Company's Wixom plant, eventually stopping parked across several visitor parking spaces. After noticing the smell of alcohol on defendant's breath, Ford security personnel called the Wixom police, who arrived in uniform and in fully marked police cars to investigate. As the police officers approached defendant, he appeared to be preparing for a fight, then became belligerent and approached a female officer with clenched fists. After momentarily following instructions to place his hands on the trunk of the vehicle, defendant pushed away then turned toward the officers. As a result, defendant was handcuffed. Defendant then began to fight, scream obscenities and threats, and became totally out of control. The fight lasted several minutes, during which additional officers were called to assist. Defendant was eventually restrained, but continued to thrash violently and make threats for several hours thereafter.

Wixom police officers McKaig and Watt searched defendant's car after he was restrained. In an unlocked briefcase in the trunk, they found a loaded nine-millimeter handgun, several dozen additional rounds of ammunition, and a number of documents. An open bottle of vodka was found in the interior of the car. Blood and urine tests administered at the hospital to which defendant was taken for medical care indicated that defendant's blood alcohol level was 0.266 grams per deciliter. Further facts necessary for a resolution of the issues raised on appeal are set forth below.

Unlawful Arrest—Probable Cause

Defendant first argues that he was subjected to an unlawful arrest because there was no probable cause to believe that he had committed any crime. Although defendant moved before trial to suppress evidence and quash or otherwise dismiss the charges, the issue of the legality of defendant's arrest was not raised until the middle of trial, at which point the trial court indicated that a record on the issue could be made at a later time. The record does not reveal that the issue was revisited and, accordingly, it is not preserved. See People v. Connor, 209 Mich.App. 419, 422, 531 N.W.2d 734 (1995). Unpreserved issues are reviewed for plain error affecting a defendant's substantial rights. People v. Carines, 460 Mich. 750, 763-764, 597 N.W.2d 130 (1999).

The federal and state constitutions guarantee the right to be free from unreasonable searches and seizures. US Const, Am IV; Const. 1963, art. 1, § 11. "Michigan's constitutional prohibition against unreasonable searches and seizures `is to be construed to provide the same protection as that secured by the Fourth Amendment [of the federal constitution], absent[] "compelling reason" to impose a different interpretation.'" People v. Custer, 465 Mich. 319, 327 n. 2, 630 N.W.2d 870 (2001) (opinion by Markman, J.), quoting People v. Collins, 438 Mich. 8, 25, 475 N.W.2d 684 (1991).

Fourth Amendment restrictions apply to seizures of persons that are short of traditional arrests, including brief investigative detentions. There is a limited exception to the probable cause requirement for seizure of a person: Where an officer has a reasonable, articulable suspicion that a person has committed or is about to commit a crime, he may briefly stop that person for the purpose of investigation. The articulable reasons for suspecting criminal activities must derive from the police officer's assessment of the totality of the circumstances. [People v. Estabrooks, 175 Mich.App. 532, 535, 438 N.W.2d 327 (1989) (citations omitted).]

Where "an officer approaches a person and seeks voluntary cooperation through noncoercive questioning, there is no restraint on that person's liberty and the person is not seized." People v. Shankle, 227 Mich.App. 690, 693, 577 N.W.2d 471 (1998).

Defendant's argument is premised on the faulty claim that he was under arrest as soon as the officers approached him and tried to handcuff him. In this case, the officers' initial contact with defendant was for the purpose of attempting to investigate the complaint made by Ford security. The contact was proper because the police were acting upon a complaint of possible criminal conduct and were trying to determine whether a crime was committed or whether defendant was in need of assistance. Custer, supra at 326-327, 630 N.W.2d 870. In addition to the initial contact being within the proper authority of the police, the police conduct in trying to secure defendant during the investigation was also proper and was not an unreasonable seizure under the Fourth Amendment. A defendant's restraint is not necessarily an arrest. In People v. Zuccarini, 172 Mich.App. 11, 14, 431 N.W.2d 446 (1988), the defendant was handcuffed during the execution of a search warrant. The officer who handcuffed him indicated that the restraint was mainly for the purpose of safety. This Court determined that the handcuffing was a reasonable, limited intrusion on the defendant's liberty under circumstances where violence could arise and the risk of harm to the police and others needed to be minimized. Id. In People v. Sangster, 123 Mich.App. 101, 104, 333 N.W.2d 180 (1983), this Court agreed that protective measures, such as an officer drawing his weapon, do not transform a stop into an arrest. In other cases, although not raised as an issue, our courts have noted, without comment, the physical restraint of suspects during investigation. See, e.g., People v. Washington, 468 Mich. 667, 669, 664 N.W.2d 203 (2003) (the Court indicated that the defendant was handcuffed pending further investigation after a scuffle).

The police conduct in trying to restrain defendant during the investigation was a reasonable intrusion on defendant's liberty. The safety of the officers was at risk during their lawful attempt to investigate the situation. Defendant appeared intoxicated and had led the officers to believe that he planned to fight them. He was aggressive and hostile. In addition, the officers were unaware of whether defendant possessed a weapon. They were not required to take unnecessary risks when dealing with defendant.

After the officers validly attempted to restrain defendant for safety reasons, he committed a misdemeanor in their presence, specifically, resisting or obstructing the officers. MCL 750.479. The police then had probable cause to arrest defendant. MCL 764.15(1)(a). It is unnecessary to determine whether the police had authority to arrest defendant under any other statutory provision.

Assistance of Counsel at Arraignment

Defendant next argues that he was deprived of counsel at his arraignment on the warrant. See MCR 6.104. This issue was not raised before, or considered by, the trial court and is, therefore, not preserved. Connor, supra. Unpreserved issues, constitutional and nonconstitutional, are generally reviewed for plain error affecting substantial rights. Carines, supra.

Before defendant was arraigned, the district court, in accordance with MCR 6.104(D), questioned the officer in charge about the factual basis for the complaint against defendant and determined that there was probable cause to issue a warrant. After the district court determined that there was probable cause for a warrant, defendant was arraigned in accordance with MCR 6.104(E), which provides, in pertinent part, that the court must, if the accused is not represented by a lawyer, advise the accused of the right to have a lawyer present during any questioning consented to, and, if the accused does not have the money to hire a lawyer, the right to court-appointed counsel. MCR 6.104(E)(2)(c), (d). Defendant was not represented by, nor did he request, an attorney at the arraignment. However, the trial court indicated that an attorney would be appointed and, if defendant later chose to hire his own counsel, he would be permitted to do so.

The Sixth Amendment right to counsel provides that a criminal defendant shall enjoy the right to the assistance of counsel at "critical stages" of the proceedings. See People v. Anderson (After Remand), 446 Mich. 392, 402, 521 N.W.2d 538 (1994). Critical stages of the proceedings are stages "where counsel's absence may harm the defendant's right to a fair trial." People v. Burhans, 166 Mich.App. 758, 764, 421 N.W.2d 285 (1988), citing United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In other words, the right to counsel applies to preliminary proceedings where rights may be sacrificed or defenses lost. White v. Maryland, 373 U.S. 59,...