People v. Mullen

• Decision Date: 23 December 2008
• Docket Number: Docket No. 281202.
• Citation: 762 N.W.2d 170,282 Mich. App. 14
• Parties: PEOPLE v. MULLEN.
• Court: Court of Appeal of Michigan — District of US

762 N.W.2d 170

282 Mich. App. 14

PEOPLE v. MULLEN.

Docket No. 281202.

Court of Appeals of Michigan.

Submitted March 4, 2008, at Detroit.

Decided December 23, 2008.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, for the people.

Kenneth D. Miller for the defendant.

Before: METER, P.J., and SAWYER and WILDER, JJ.

WILDER, J.

The prosecution appeals by delayed leave granted¹ the circuit court's order granting defendant's motion to suppress evidence of the results of his blood alcohol content (BAC) test. Defendant sought to suppress the evidence, contending that the search warrant affidavit included false information and that material information was omitted. Following an evidentiary hearing, the circuit court concluded that the arresting officer either intentionally or recklessly included false information in the search warrant affidavit, and that material information was omitted from the affidavit. After striking the false information and considering the omitted information, the circuit court further concluded that the affidavit, as corrected, did not establish probable cause to issue a search warrant, and granted the suppression motion.

We conclude that although the circuit court's factual determinations are not clearly erroneous, its determination that the affidavit, as corrected, did not establish probable cause to issue a search warrant, was erroneous. Therefore, we reverse the circuit court's order suppressing the BAC evidence.

I

At approximately 2:00 a.m. on November 9, 2006, Troy police officer Frank Shuler saw defendant's vehicle stop at a red light, pause for a few seconds, and then proceed past the red light. Officer Shuler made a traffic stop, and when he approached the driver's side window of the vehicle, he smelled alcohol and noticed that defendant's eyes were bloodshot and watery. Officer Shuler testified² that the smell of alcohol was fairly strong and that he therefore asked defendant if he had consumed any alcohol that evening. Defendant indicated that he drank two glasses of wine with dinner.

Officer Shuler asked defendant to get out of the vehicle for field sobriety tests, and first asked defendant to count backward from 89 to 78. While defendant was able to do so, Officer Shuler averred in his affidavit to the magistrate that defendant's speech was slurred and that defendant swayed back and forth. Second, Officer Shuler conducted the "horizontal gaze nystagmus" test or HGN.³ Officer Shuler asked defendant to stand with his arms at his sides, then held a pen in front of defendant's face at eye level, instructed defendant to hold his head still and to follow the pen with his eyes while Officer Shuler moved it side to side. Officer Shuler held the pen four to six inches from defendant's face, but despite the officer's directions, defendant repeatedly moved his head to follow the pen. Officer Shuler testified that defendant "had the lack of smooth pursuit [meaning that defendant's eyes allegedly jolted or staggered while defendant shifted his gaze to follow the pen] and maximum deviation at onset prior to forty-five." By describing "maximum deviation," Officer Shuler meant that defendant's eyes began to strain and "bounced" side to side within 45 degrees of center.

Third, Officer Shuler subjected defendant to the "one-legged stand" test. Before conducting this test, defendant notified the officer that he had a knee injury, so the officer instructed defendant to stand on his good leg. Officer Shuler testified that he demonstrated the test and instructed defendant to count until told to stop. Officer Shuler testified that defendant stopped counting before he was instructed to do so, and swayed while standing on one leg.⁴

Finally, Officer Shuler conducted the "finger to nose" test. He first demonstrated the test for defendant, and then instructed defendant to keep his feet together, put his arms out to his sides with his palms up, tilt his head back, and alternate touching the tip of his nose with his right and left index fingers. Officer Shuler testified that defendant was unable to touch the actual tip of his nose, touching the bridge instead, and that defendant also swayed back and forth during the test. Officer Shuler noted that defendant's speech was "a little slurred" throughout the entire interaction.

Officer Shuler then conducted a preliminary breath test (PBT). Officer Shuler testified at the preliminary examination that he checked defendant's mouth before placing him in the backseat of the patrol car, waited 15 minutes, and then administered the test. He also specifically testified that he could not recall whether defendant had paper in his mouth before administering the test. At the evidentiary hearing, Officer Shuler testified that defendant was chewing gum when he was stopped, that he asked defendant to spit the gum out, and that he believed defendant complied. Officer Shuler further testified that he checked defendant's mouth and found it to be empty, but he subsequently admitted that, when he began to read defendant his PBT rights, he noticed that defendant had a little piece of paper in his mouth. Officer Shuler explained that he did not believe that the paper would compromise the PBT results, and therefore waited only a few minutes after noticing the paper before administering the test. Defendant's PBT result was 0.15.

Officer Shuler placed defendant under arrest and transported him to the police station. After conducting a LEIN⁵ search, the officer discovered that defendant had one or two prior arrests for driving under the influence of liquor. He read defendant his chemical test rights and asked for a blood sample. Defendant initially consented, but then refused. Officer Shuler then proceeded to secure a search warrant. He filled out a standardized form affidavit to secure the warrant. On the form, Officer Shuler circled the entry indicating that he was investigating a case of operating a motor vehicle while under the influence of liquor. Among several choices provided on the form, Officer Shuler selected one stating that there was a strong odor of alcohol emanating from defendant's breath and person. He also selected one indicating that defendant had slurred speech and watery eyes. The officer reported that defendant had a PBT result of 0.15. Officer Shuler noted that he observed defendant stop at a red light and then proceed on red. He indicated that defendant "conducted field sobriety test poorly . . . stopped counting before he was told to stop on the one leg stand Nystagmus was present ... [and defendant] was unable to touch his right & left tip of his index fingers to the tip of his nose." Officer Shuler did not disclose in his affidavit that the defendant had paper in his mouth less than 15 minutes before he conducted the PBT.

Relying on the affidavit, the magistrate issued a search warrant for a blood sample. The blood test revealed that defendant had a blood alcohol content of 0.11 grams of alcohol per 100 milliliters of blood. Defendant was charged, as a third offender, with operating a motor vehicle while intoxicated, in violation of MCL 257.625(1).

II

Before concluding its evidentiary hearing, the circuit court viewed the videotape of the traffic stop. Following the hearing, the circuit court ruled that Officer Shuler had recklessly omitted information that defendant had paper in his mouth less than 15 minutes before the administration of the PBT, recklessly stated in the affidavit only that Nystagmus was present without informing the magistrate that he had administered the HGN test in a non-standardized way and explaining the manner in which the test was administered, intentionally or recklessly misrepresented that defendant's speech was slurred (a conclusion that the circuit court reached after viewing a videotape), intentionally or recklessly misrepresented that defendant stopped counting at an inappropriate time during the one-legged stand test, and intentionally or recklessly misrepresented that defendant was unable to touch the tip of his nose with his index fingers. The circuit court concluded that given the remaining information in the affidavit indicating that a strong odor of intoxicants emanated from defendant and that defendant had watery eyes, there was insufficient evidence to support a finding of probable cause to issue the search warrant, and the BAC evidence should be suppressed.

III

We review de novo a trial court's ultimate determination on a motion to suppress, People v. McBride (On Remand), 273 Mich.App. 238, 249, 729 N.W.2d 551 (2006), rev'd in part on other grounds 480 Mich. 1047, 743 N.W.2d 884 (2008), and its factual findings for clear error, People v. Williams, 472 Mich. 308, 313, 696 N.W.2d 636 (2005). We review de novo underlying issues of law such as statutory questions or the application of a constitutional standard to uncontested facts. People v. Keller, 479 Mich. 467, 473-474, 739 N.W.2d 505 (2007).

IV

We begin with the constitutional text. The Fourth Amendment of the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [U.S. Const., Am. IV (emphasis added).]

Whether a search is reasonable is a fact-intensive determination and must be measured by examining the totality of the circumstances. Williams, supra at 314, 696 N.W.2d 636. A reviewing court must give great deference to a magistrate's finding of probable cause to issue a search warrant. Accordingly, we do not review de novo the lower court's determination regarding the sufficiency of a search warrant affidavit. Keller, supra at 474,...