People v. Peebles

• Decision Date: 17 May 1996
• Docket Number: Docket No. 174421
• Citation: 550 N.W.2d 589,216 Mich.App. 661
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dale Thomas PEEBLES, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 589

550 N.W.2d 589

216 Mich.App. 661

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dale Thomas PEEBLES, Defendant-Appellant.

Docket No. 174421.

Court of Appeals of Michigan.

Submitted Dec. 19, 1995, at Detroit.

Decided May 17, 1996, at 9:20 a.m.

Released for Publication July 12, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and J. Benjamin Dolan, Assistant Prosecuting Attorney, for people.

Angelo A. Plakas & Associates, P.C. (by Angelo A. Plakas), Westland, for defendant.

Before MARKMAN, P.J., and MARILYN KELLY and BUCCI, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of operating a motor vehicle while visibly impaired, M.C.L. § 257.625(3); M.S.A. § 9.2325(3). He also pleaded guilty of violating a driver's license restriction, M.C.L. § 257.312; M.S.A. § 9.2012. He was sentenced to two years' probation. Police officers had stopped defendant after they saw him slowly driving in a parking lot at 3:30 a.m. without using his headlights. The officers determined that he was incapable of operating a motor vehicle and arrested him. Defendant appeals the judgment of sentence on the bases that the officers illegally stopped him without a reasonable suspicion that criminal activity was afoot and that one of the arresting officers was not qualified as an expert to testify regarding the field sobriety tests to which defendant was subjected. We affirm.

At trial, defendant testified that the following incidents preceded the stop at issue. On July 2, 1993, he had three or four beers with dinner. At approximately 3:00 a.m. the following morning, a friend telephoned him and asked him to come to a nearby mall to jump-start his car. Defendant complied and successfully jump-started his friend's car. As he started to leave the parking lot, he noticed a police car behind him with its lights flashing and he pulled over.

The officers testified that they noticed defendant's car slowly traveling in a dark parking lot without the use of headlights. They stopped defendant's vehicle and noted several indications that defendant had been drinking alcohol (e.g., staggering, strong smell of alcohol on his breath, and slurred speech).

The officers had defendant perform some field sobriety tests. These included reciting the alphabet, a "finger correlation test," counting backwards from ninety-three to eighty-five, and a five-step "heel to toe" test. They concluded that defendant was not capable of driving a vehicle, arrested him, and took him to the police station.

On appeal, defendant first contends that the trial court erred in denying his motions to quash the information, to suppress evidence, and for a directed verdict. He contends that the trial court should have granted these motions because the police officers had no reasonable suspicion of criminal activity that would have justified a Terry investigative stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and therefore all the evidence gained from the stop was inadmissible as the product of an illegal search and seizure.

To review a circuit court's decision regarding a motion to quash an information, this Court determines if the district court abused its discretion in binding over the defendant. People v. Fiedler, 194 Mich.App. 682, 693, 487 N.W.2d 831 (1992). This Court reviews trial court decisions regarding motions to suppress evidence under the clearly erroneous standard. People v. Muro, 197 Mich.App. 745, 747, 496 N.W.2d 401 (1993). In reviewing a trial court's decision regarding a motion for a directed verdict, this Court views the evidence presented up to the time the motion was made in the light most favorable to the prosecution to determine if a rational factfinder could find the essential elements of the crime proved beyond a reasonable doubt. People v. Daniels, 192 Mich.App. 658, 665, 482 N.W.2d 176 (1991).

The Fourth Amendment of the United States Constitution and Const.1963, art 1, § 11 grant individuals the right to be secure against unreasonable searches and seizures. In re Forfeiture of $176,598, 443 Mich. 261, 264-265, 505 N.W.2d 201 (1993). "It is well established that brief investigative stops short of arrest are permitted where police officers have a reasonable suspicion of ongoing criminal activity." People v. Christie (On Remand), 206 Mich.App. 304, 308, 520 N.W.2d 647 (1994), citing Terry, supra. The criteria for a constitutionally valid investigative stop are that the police have "a particularized suspicion, based on an objective observation, that the person stopped has been, is, or is about to be engaged in criminal wrongdoing." People v. Shabaz, 424 Mich. 42, 59, 378 N.W.2d 451 (1985). The totality of the circumstances are to be considered to assess the police officer's suspicion that criminal activity is afoot. Id.; Christie, supra at 308, 520 N.W.2d 647.

[T]he following rules apply with respect to the stopping, searching, and seizing of motor vehicles and their contents:

"1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.

"2. Said reasonableness will be determined from the facts and circumstances of each case.

"3. Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.

"4. A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police." [Id. at 308-309, 520 N.W.2d 647.]

Here, at the preliminary examination, one of the arresting officers testified, "[a] vehicle traveling without the use of headlights at 3:30 in the morning in a dark lot made me suspicious." He did not specify the exact nature of his suspicion. We infer that he suspected theft. Because the stores were closed at that hour, an automobile driving away from the stores without use of its headlights raised a reasonable suspicion of theft. Further, driving in the dark without headlights would also raise a reasonable suspicion of careless driving. See M.C.L. § 257.626b; M.S.A. § 9.2326(2). A reasonable suspicion of either theft or careless driving would have provided a legitimate basis for stopping defendant.

At the preliminary examination, the officer additionally testified that, at the time of the stop, he thought that it was a crime to be driving at night without using headlights. However, at trial, the officer conceded that no ordinance prohibits the driving of a vehicle in a parking lot at night without using headlights. Therefore, the officers would not have been authorized to issue defendant a citation on this basis.

However, this fact does not invalidate the reasonable suspicion of ongoing criminal activity raised by defendant's driving without using headlights at 3:30 a.m. as discussed above. That one of the officers--wrongly--believed that defendant was committing a traffic misdemeanor does not undermine...