People v. Perreault, Docket No. 288540.
| Decision Date | 19 January 2010 |
| Docket Number | Docket No. 288540. |
| Citation | 782 N.W.2d 526,287 Mich.App. 168 |
| Parties | PEOPLEv.PERREAULT. |
| Court | Court of Appeal of Michigan — District of US |
Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, and Alan R. Schneider, Prosecuting Attorney, for the people.
James M. Hunt, Traverse City, for defendant.
Before: TALBOT, P.J., and O'CONNELL and DAVIS, JJ.
Defendant was convicted by the trial court of possession with intent to deliver marijuana, MCL 333.7401(2)(d)( iii ). Defendant appeals as of right, arguing that the trial court erred by refusing to suppress evidence obtained in a search of his vehicle conducted without a warrant. We reverse. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
Defendant was a student at Traverse City Central High School. On April 24, 2008, the Grand Rapids area Silent Observer 1 anonymous tip hotline received an anonymous tip “regarding a VCSA [2] at Traverse City Central High School.” The tipster stated that he had previously been friends with a drug dealer at the school but that the tipster had given up drugs and now wished to report his former friend. The tipster described that friend's trafficking as “the largest threat to the school,” but the tipster decided to also provide the names of and details about other “big dealers,” one of whom was stated as being defendant. The tipster provided extensive information about his former friend, and less- detailed information about the other alleged dealers. Defendant was simply described as a male caucasian junior who sells marijuana “from school, his truck and East Bade [sic] Park in Traverse City.” The Silent Observer report was forwarded to the Traverse City Police Department.
A few days later, Officer Evan Warsecke, who served as a liaison officer for the school, forwarded the report to Rick VanderMolen, assistant principal at the school. The only further investigation taken by Officer Warsecke was to verify the vehicles registered to the named dealers. However, at some point before the search of defendant's vehicle, a search of the principal suspect (the tipster's former friend) was conducted, and no contraband was found. VanderMolen testified that, other than a vague and undefined “concern” expressed by “a counselor from East Junior High” about “some behavior at the junior high,” but “not talking about specifically marijuana,” he had no other information about defendant or about defendant's involvement with marijuana. Officer Warsecke likewise testified that he had no information about defendant or about defendant's involvement with drugs other than the anonymous tip.
Nevertheless, more than a week after receiving the anonymous tip, VanderMolen decided to search defendant's vehicle. VanderMolen asked Officer Warsecke and some other school officials to accompany him as he searched defendant's vehicle. Defendant did not consent to the search, although defendant was present during the search. Officer Warsecke stood by while the assistant principal conducted the search. VanderMolen found marijuana in a bag behind a seat, whereupon defendant was arrested. Defendant moved to suppress that evidence as the fruit of an unconstitutional search. The trial court denied the motion, finding that the anonymous tip alone was sufficient to constitute reasonable suspicion, given the level of detail the tip contained.
Evidence obtained in violation of a suspect's rights under the Fourth Amendment of the United States Constitution is subject to suppression at trial. People v. Cartwright, 454 Mich. 550, 557-558, 563 N.W.2d 208 (1997). See also Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (). In reviewing a trial court's decision following a suppression hearing, this Court reviews the trial court's factual findings for clear error, but reviews the legal conclusions de novo. See People v. Daoud, 462 Mich. 621, 629-630, 614 N.W.2d 152 (2000).
The police may search a motor vehicle without a warrant if they have probable cause to believe that evidence of a crime may be found therein. People v. Kazmierczak, 461 Mich. 411, 418-419, 605 N.W.2d 667 (2000). However, school officials may search a student's person or property on school premises on the lesser standard of reasonable suspicion. See New Jersey v. TLO, 469 U.S. 325, 341-342, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). Defendant suggested in the trial court that the presence of a police officer during the search might raise the applicable standard, but because that argument was not raised on appeal, we do not express any opinion thereon. In any event, it is unnecessary for us to do so in light of our conclusions in this matter. 3
Reasonable suspicion requires “ ‘articulable reasons' ” and “a particularized and objective basis for suspecting the particular person ... of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). In “a case involving an anonymous tipster,” whether reasonable suspicion exists “must be tested under the totality of the circumstances with a view to the question whether the tip carries with it sufficient indicia of reliability to support a reasonable suspicion of criminal activity.” People v. Faucett, 442 Mich. 153, 169, 499 N.W.2d 764 (1993) (emphasis in original), citing Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). An anonymous tip can provide reasonable suspicion if it is considered along with a “totality of the circumstances” that show the tip to be reliable. But alone, without any “ ‘indicia of reliability’ ” or “ ‘means to test the informant's knowledge or credibility,’ ” an anonymous tip is generally insufficient. People v. Horton, 283 Mich.App. 105, 111-113, 767 N.W.2d 672 (2009), citing and quoting Florida v. J.L., 529 U.S. 266, 271-272, 274, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).
Here, the anonymous tip was the only basis for the search. Both the assistant principal who conducted the search and the police officer who attended the search testified that the anonymous tip was the only basis for the search. 4 The prosecution points out that the tip provided considerable detail about one of the alleged dealers, but that particular dealer was searched and found not to have any contraband on his person. The prosecution further argues that the tip is reliable because the tipster showed that he was well-intended and reliable by professing to be motivated by one of the alleged dealers' selling to another friend and an ex-girlfriend, and also because the tipster took care to distinguish between a dealer and that dealer's physically identical-looking brother. However, these are merely assertions regarding the information contained within the anonymous tip and therefore are not corroborating circumstances. Furthermore, the anonymous tip contained little information concerning defendant. Although the tip sheet states that defendant was “Seen” trafficking in marijuana, and specifies three locations, it does not indicate whether the informant had witnessed the trafficking or was relaying information heard secondhand.
Therefore, the anonymous tip was vague concerning defendant and could not be viewed with a “totality of the circumstances” because there were no other circumstances. Indeed, the only other possible circumstance weighed against the tip's being reliable. “Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation” before governmental authorities may act against a suspect. White, supra at 329, 110 S.Ct. 2412 (quotation marks and citation omitted). This is an example of such a tip. The tip alone did not provide a sufficient basis to form reasonable suspicion necessary for the search of defendant's vehicle, and the search was based on nothing more than the tip. The search was therefore unconstitutional, and the trial court should have suppressed the evidence as the fruit of an illegal search. See Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Cartwright, supra.
Although it appears that the prosecution would not be able to proceed without the evidence that should have been suppressed, we decline to make that presumption conclusive. We express no view as to the resolution of any other aspect of, or issue in, this case. The trial court's order denying suppression of the evidence seized from defendant's vehicle is reversed, and the matter is remanded for further proceedings as the trial court deems appropriate. We do not retain jurisdiction.
I would affirm the decision of the learned trial court. The sole issue in this case is whether the assistant principal at Traverse City Central High School had reasonable suspicion that contraband would be found in defendant's truck. It is a well-accepted principle of law that school officials may search a student's person or property on the school premises pursuant to the lesser standard of “reasonable suspicion.” See New Jersey v. T.L.O., 469 U.S. 325, 341-343, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). In People v. Champion, 452 Mich. 92, 98, 549 N.W.2d 849 (1996), our Supreme Court, citing United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), noted, “Reasonable suspicion entails something more than an inchoate or unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for probable cause.”
An anonymous tip can provide reasonable suspicion if it is considered along with a “totality of the circumstances” that show the tip to be reliable. People v. Faucett, 442 Mich. 153, 169, 499 N.W.2d 764 (1993). Further, the tip must carry with it sufficient indicia of reliability to support a reasonable suspicion of criminal activity. Id. However, a sufficiently...
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