People v. Kavanaugh

• Decision Date: 06 July 2017
• Docket Number: No. 330359,330359
• Citation: 907 N.W.2d 845,320 Mich.App. 293
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Kevin Patrick KAVANAUGH, Defendant–Appellant.
• Court: Court of Appeal of Michigan — District of US

320 Mich.App. 293

907 N.W.2d 845

PEOPLE of the State of Michigan, Plaintiff–Appellee,

v.Kevin Patrick KAVANAUGH, Defendant–Appellant.

No. 330359

Court of Appeals of Michigan.

Submitted March 7, 2017, at Grand Rapids

Decided July 6, 2017, 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Michael J. Sepic, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for the people.

Daniel W. Grow, PLLC (by Daniel W. Grow ), for defendant.

Before: Stephens, P.J., and Shapiro and Gadola, JJ.

Per Curiam.

Defendant was convicted of possession with the intent to deliver between 5 and 45 kilograms of marijuana, MCL 333.7401(2)(d)(ii). The marijuana was found in his car's trunk during a search conducted after a police dog alerted to the marijuana's smell. Defendant argues that the trial court erred by holding that the initial traffic stop was valid and by holding that the search did not violate his rights under the Fourth Amendment. He also argues that there was a Brady¹ violation regarding a photo and video that was not timely produced by the prosecution. For the reasons stated in this opinion, we reverse the trial court's ruling on the second Fourth Amendment claim and remand for further proceedings. Given our decision regarding defendant’s second Fourth Amendment claim, the Brady issue is moot.

I. FACTS

Defendant was driving on I–196 with a female passenger when he was pulled over by Michigan State Police Trooper Michael Daniels. Daniels testified that he had observed two traffic violations: defendant’s vehicle had an improperly affixed license plate² and defendant failed to signal a lane change³ onto an exit ramp.

Daniels asked defendant for the car's registration. Defendant responded that he had just recently purchased the car and did not yet have a registration. Daniels then told defendant to exit the car and to follow him. The two walked back to the police cruiser leaving the passenger in defendant's car. Daniels told defendant to sit in the front passenger seat of the police car. Daniels got into the driver's seat and said he was going to run some computer checks. While running the computer checks on defendant's license and ownership of the vehicle, Daniels asked defendant several questions and learned that he and his female passenger had been in Grand Rapids for three days. Daniels then asked what defendant and his female companion were doing in the Grand Rapids area since they were from Florida. After completing the computer checks, which confirmed defendant's ownership of the car and revealed no outstanding warrants, Daniels told defendant to stay in the cruiser and walked back to defendant's car where he spoke with defendant's female companion.

After doing so, Daniels returned to the cruiser and told defendant that he was going to give him a warning rather than a ticket for the traffic violations. He then asked defendant for consent to search the car. When defendant declined to consent, Daniels informed him that he was going to radio a request for a dog to do a contraband sniff of defendant’s vehicle and that defendant and his companion would have to remain until the dog and its handler arrived and the process was completed. After about 15 minutes,⁴ the dog and his officer arrived. The dog alerted at the car's trunk. The officers opened the trunk and found the marijuana. The entire course of events, from Daniels's initial observation of defendant's vehicle to defendant's arrest, was captured on video camera.

Defendant filed a pretrial motion to suppress the evidence found in the trunk. After an evidentiary hearing, the trial court denied the motion. For purposes of the hearing, the court did not watch the video, and although defense counsel noted that the video was available if the court wished to watch it, neither party specifically requested that the court do so. Defendant raised the issue again at trial at which time the trial court watched the video and confirmed its prior ruling. Like the trial court, we have watched and listened to the recording. Having done so, we need not rely on the trial court's conclusions as to what the video contains. People v. Zahn , 234 Mich.App. 438, 445–446; 594 N.W.2d 120 (1999) (holding that there is no reason to give deference to the trial court when the trial court was in no better position to assess the evidence).

II. FOURTH AMENDMENT ISSUES

Defendant raises two arguments grounded in the Fourth Amendment.

First, he argues that Daniels lacked grounds to pull him over for a traffic stop. Second, he argues that Daniels lacked lawful grounds to detain him beyond the conclusion of the traffic stop. We disagree with defendant's first argument but agree with his second.

A. THE TRAFFIC STOP

Daniels testified at the pretrial suppression hearing and at trial. He stated that he stopped defendant because he saw what he determined to be two traffic violations. First, Daniels concluded that defendant was in violation of MCL 257.225(2) because the vehicle's license plate was flapping in the wind and unreadable while the car was moving. Second, he concluded that when getting on an exit ramp defendant had violated MCL 257.648(1) by making the lane change without signaling. People v. Hrlic , 277 Mich.App. 260, 263–266, 744 N.W.2d 221 (2007).

Defendant argued below, and argues again on appeal, that Daniels's stated explanations were mere pretexts for a stop that lacked a constitutional basis.⁵ However, the United States Supreme Court has held that when there is probable cause to believe that a driver has violated a traffic law, it is constitutional to briefly detain the driver for purposes of addressing the violation even if the officer's subjective intent for stopping the car is based on other factors. "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States , 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In this case, because Daniels had probable cause to stop defendant, the traffic stop was lawful and did not violate the Fourth Amendment.

B. DETENTION AFTER THE TRAFFIC STOP

Defendant argues, and we agree, that the traffic stop was completed when Daniels determined that the vehicle was owned by defendant, gave him a warning about the traffic violations, and told him there would not be a ticket issued. After the traffic stop was completed, Daniels asked defendant for permission to search his car. Defendant did not consent, at which point Daniels told defendant that he was requesting that another officer bring a police dog to conduct a "sniff" for the presence of contraband in defendant's vehicle. Daniels ordered defendant to remain at the scene until the dog arrived and not to enter his car while waiting.

It is blackletter law that a "seizure" within the meaning of the Fourth Amendment occurs when, in view of all the circumstances, a reasonable person would conclude that he or she was not free to leave. United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Having been ordered by Daniels to remain at the scene, defendant was clearly seized under the law, and the prosecution does not disagree with this characterization.

Until the 2015 decision of the United States Supreme Court in Rodriguez v. United States , 575 U.S. ––––, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), there was debate about whether requiring a driver to wait for a dog sniff after a traffic stop had concluded should be considered a seizure separate from the traffic stop itself or whether the basis for the traffic stop could encompass a brief additional delay for a dog sniff. In Rodriguez , the United States Supreme Court definitively resolved the debate, holding that "a dog sniff is not fairly characterized as part of the officer's traffic mission." Id . at ––––, 135 S.Ct. at 1615. The Court explained that although police officers "may conduct certain unrelated checks during an otherwise lawful traffic stop," they "may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Id . at ––––, 135 S.Ct. at 1615. The Court held, "[A] police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures." Id . at ––––, 135 S.Ct. at 1612. Once the constitutionally sound basis for the traffic stop has been addressed, any further extension of the detention⁶ in order to conduct "[o]n-scene investigation into other crimes" or for any other reason is a Fourth Amendment violation unless new facts come to light during the traffic stop that give rise to reasonable suspicion of criminal activity. Id . at ––––, 135 S.Ct. at 1616.

In light of these constitutional principles, we begin our analysis with the understanding that the continued detention of defendant and his vehicle after the traffic stop's conclusion was unconstitutional unless "[the] traffic stop reveal[ed] a new set of circumstances," People v. Williams , 472 Mich. 308, 315, 696 N.W.2d 636 (2005), that led to "a reasonably articulable suspicion that criminal activity [was] afoot," People v. Jenkins , 472 Mich. 26, 32, 691 N.W.2d 759 (2005). "Whether an officer has a reasonable suspicion to make such an investigatory stop is determined case by case, on the basis of an analysis of the totality of the facts and circumstances." Id ."A determination regarding whether a reasonable suspicion exists ‘must be based on commonsense judgments and inferences about human behavior.’ " Id ., quoting People v. Oliver , 464 Mich. 184, 197, 627 N.W.2d 297 (2001) (citation omitted). "That suspicion must be reasonable and articulable ...." People v. Nelson , 443 Mich. 626, 632, 505 N.W.2d 266 (1993). "[I]n determining whether [a police] officer acted reasonably...., due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’...