People v. Lewis, Docket No. 231954.

Citation251 Mich. App. 58,649 N.W.2d 792
Decision Date08 August 2002
Docket NumberDocket No. 231954.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Thomas Jacob LEWIS, Defendant-Appellee.
CourtCourt of Appeal of Michigan (US)

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, James J. Gregart, Prosecuting Attorney, and Heather S. Bergmann, Assistant Prosecuting Attorney, for the people.

Plaszczak & Bauhof, P.C. (by James F. Bauhof), Kalamazoo, for the defendant.

Before: WILDER, P.J., and GRIFFIN and SMOLENSKI, JJ.

WILDER, P.J.

The prosecution appeals as of right orders of the Kalamazoo Circuit Court granting defendant's motion to suppress evidence consisting of approximately fiftysix pounds of marijuana seized from defendant's vehicle, and dismissing the case without prejudice. We reverse and remand.

I. Facts and Procedural Background
A. Introduction

On June 22, 2000, defendant's vehicle was searched by police officers of the Kalamazoo Valley Enforcement Team (KVET) after he was stopped for driving with an expired license plate in violation of M.C.L. § 257.255 on westbound I-94 in Kalamazoo County. During the search, the officers discovered a substantial amount of marijuana in two suitcases located in the rear of the vehicle. On the basis of this discovery, defendant was charged with possession with intent to deliver marijuana, M.C.L. § 333.7401(2)(d)(ii).1 Before trial, defendant moved to suppress evidence of the marijuana, arguing that the circumstances of the traffic stop and his detention following the traffic stop, as well as the search of his vehicle, violated the Fourth Amendment of the United States Constitution and therefore resulted in an illegal seizure. Following a suppression hearing, the trial court granted defendant's motion, finding that "the arresting officer did not have probable cause to detain the defendant to search his vehicle." At the time of trial, the prosecution stated it was unable to proceed without the evidence suppressed by the trial court. Accordingly, the trial court entered an order dismissing the case without prejudice. The prosecution now appeals as of right.

B. Underlying Facts Pertaining to the Traffic Stop and Detention

At the suppression hearing, the trial court heard testimony from Sergeant Earle Martin, Jr., Officer Mike Phelps, and Officer Robert Rodriguez. Martin, supervising officer for the KVET, testified that the KVET had received information that defendant, a resident of Kalamazoo, had purchased a round-trip airline ticket from Detroit to Corpus Christi, Texas, that he was scheduled to depart from Detroit Metropolitan Airport at about on June 21, 2000, and that he would return to Detroit Metropolitan Airport the following morning at approximately 9:00 a.m. Because of the short duration of defendant's stay in Texas and Corpus Christi's reputation as a "source city" for drugs, Martin suspected that defendant might be involved in drug trafficking and placed defendant under surveillance.

On June 22, 2000, Martin, along with three other KVET officers, including Officer Rodriguez of the canine unit,2 traveled to Detroit Metropolitan Airport to conduct surveillance of the defendant. The officers arrived at the gate defendant would be using just as defendant was getting off the plane. Martin testified that defendant appeared to be nervous as he headed toward the baggage claim area. Martin observed that defendant scanned the area by making deliberate side-to-side glances and that when defendant went outside to smoke a cigarette, defendant's demeanor in smoking the cigarette—immediately lighting it up, looking around, and taking several long deep "drags"—was additional evidence that defendant was nervous.

Martin testified that when defendant arrived at the baggage claim area, defendant "walked right up to the wall, where the luggage comes out of the wall ... and started looking inside to find out when the luggage was coming through." Martin observed defendant continue to peek inside the baggage carousel and scan the entire baggage claim area until he received his luggage. Once the baggage carousel began to move, defendant picked up two bags, left the building, and proceeded to a "Suburban" parked in the short-term parking lot near the building. Martin also testified that he, Martin, radioed the officers that were with him to give them a description of defendant's bags and vehicle. Martin testified that "one [of the bags had] an extended handle and wheels" and that defendant had placed the other bag on top of the bag with wheels.

Martin then testified that he and the three other KVET officers followed defendant from the airport parking lot onto I-94 west toward Kalamazoo. Martin stated that while following defendant back to Kalamazoo:

[W]e surveiled [sic] [defendant] all the way from Detroit back towards Kalamazoo. In the meantime, we were able to get his license plate number. We ran that and found out that his license plate was expired, which is a misdemeanor. So, we had a valid traffic stop, when we wanted to stop him. I radioed back to Officer Phelps and requested that he get into one of our semi-marked police cruisers and wait near the east Kalamazoo County boundary for [defendant] and his vehicle to enter Kalamazoo County and then I wanted him to stop the vehicle.... I told him that he had an expired plate. I told him—many of the things that I already noted during my visual contact with [defendant] when he got off of the plane. I told him to try and get consent [to search the vehicle] after his traffic stop....

Martin further testified that he informed Officers Rodriguez and Phelps that if consent was not obtained, he wanted Officer Rodriguez "to immediately go up to the vehicle ... to see if his dog could pick up any drug odor around the vehicle." After entering Kalamazoo County, Martin observed Officer Phelps stop defendant's vehicle just west of the Galesburg rest stop located on westbound I-94. Martin and his crew drove into the rest stop area and "waited for Officer Phelps to conduct his investigation."

Officer Phelps' testimony substantially corroborated the sequence of events testified about by Martin. Phelps further testified that after defendant's vehicle was stopped, he approached it and noticed that defendant was extremely nervous and that his face was "[a]shen in color." Defendant's hands also were "twitching" as "he was searching for his driver's license, registration, and proof of insurance." Phelps testified that "as I asked [defendant] to step from the vehicle, he further lost color in his face" and remained nervous throughout the entire stop. Phelps estimated that "a total of eight to ten minutes" elapsed from the time of the traffic stop to the time the search of defendant's vehicle began.

Phelps further testified that during the traffic stop defendant lied to Phelps about where he was returning from and the reason for his trip. According to Phelps, defendant initially told him that he was returning from the Ann Arbor area, where he had been looking at a roofing job and that he was starting his own business. When Phelps later again asked defendant where he was coming from, defendant told him that he was returning from Dexter and that "he drove there this morning and was driving back this afternoon." Phelps then testified that he returned to his vehicle and relayed the information he obtained from his investigation to the KVET officers waiting at the rest stop.

Phelps then returned to defendant's vehicle, gave defendant his driver's license and registration, and informed defendant that he "was just going to give him a verbal warning and not issue any citations for the expired plate and the garter which was hanging from his rearview mirror."3 Phelps then asked defendant for permission to search his person. Defendant consented to this search and Phelps found more than $400 in cash in defendant's pants pockets. Phelps then asked defendant for permission to search his vehicle. Defendant asked Phelps why he wished to search the vehicle and Phelps explained that "I-94 is a major thoroughfare between Detroit and Chicago in which a lot of drugs are trafficked between those two cities and also into Kalamazoo." Defendant then agreed to the vehicle search. Phelps testified:

"I asked him if there was anything in the vehicle and he stated that there was not and I again asked him if I was going to find anything and at that time he stated that he did not want me to search... his vehicle."

After defendant withdrew his consent to search the vehicle, Phelps informed defendant that he was not free to go, placed him in the patrol car, and contacted Officer Rodriguez and Sergeant Martin. Martin decided that because of the short duration of defendant's trip to a reputed "source city," the amount of luggage with which defendant traveled, defendant's nervous behavior at the airport and during the traffic stop, and the fact that defendant gave Phelps false information about his travel itinerary that day, there was "at minimum, reasonable suspicion to detain [the vehicle], [and] probable cause to search it." Martin then ordered Rodriguez and the canine to the scene.4

According to Phelps, Rodriguez and the canine arrived at the scene in "less than two minutes" and the canine "had a positive indication on the passenger side of the vehicle for drugs."5 Rodriguez testified that he was at the scene with the canine "within 15 or 30 seconds of Officer Phelps letting us know that [defendant] denied consent."6 Rodriguez also testified that the dog alerted to the scent of drugs at the rear door on the passenger side of the vehicle. After the alert, the other KVET officers arrived at the scene, conducted a full search of the vehicle, and found twenty-eight bundles of marijuana, averaging about two pounds each, inside two suitcases. Defendant was then placed under...

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