People v. Rizzo

• Decision Date: 28 December 2000
• Docket Number: Docket No. 219360.
• Citation: 243 Mich. App. 151,622 N.W.2d 319
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mary Nancy RIZZO, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

622 N.W.2d 319

243 Mich. App. 151

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mary Nancy RIZZO, Defendant-Appellee.

Docket No. 219360.

Court of Appeals of Michigan.

Submitted August 2, 2000, at Detroit.

Decided November 3, 2000, at 9:00 a.m.

Released for Publication December 28, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, and Daniel L. Lemisch, Chief, Appellate Division, for the people.

James L. Feinberg, Detroit, for the defendant.

Before SMOLENSKI, P.J., and WILDER and METER, JJ.

SMOLENSKI, P.J.

In this case, we consider whether a police officer may request a motorist to perform roadside sobriety tests solely on the basis of a strong odor of intoxicants apparent on the motorist's breath. We conclude that such an odor, standing alone, is sufficient to provide a police officer with a reasonable, articulable, and particular suspicion that the motorist has consumed intoxicating liquor, which may have affected the motorist's ability to operate a motor vehicle. Accordingly, we reverse the decisions of the lower courts suppressing the relevant evidence and dismissing the charges against defendant.

On August 28, 1998, at approximately 12:40 a.m., Michigan State Police Trooper Dennis Dillard was on highway patrol near the Southfield Freeway and Lodge Freeway interchange, driving a fully marked patrol car. He observed a blue Geo Prizm with a broken rear taillight, which was showing white light to the rear. Dillard decided to stop the vehicle for a defective equipment violation and pulled it over to the side of the freeway.

Dillard approached the vehicle and spoke with defendant, who was the vehicle's driver and sole occupant, through the open driver's side window. Dillard requested defendant's driver's license, registration, and proof of insurance, which she produced. He explained that he had stopped her vehicle because of the broken taillight, and she volunteered that the taillight had been broken two weeks previously, when the car was parked in front of her brother's house. During this conversation, Dillard detected a strong odor of intoxicants on defendant's breath. He therefore asked her to get out of the vehicle and perform roadside sobriety tests to determine whether she was intoxicated. It is uncontested that Dillard asked defendant to perform the roadside sobriety tests solely on the basis of the strong odor of intoxicants on her breath, and not because she was driving or acting in any way that suggested intoxication.

Dillard instructed defendant to perform several sobriety tests, including a one-leg stand, a finger count test, an alphabet test, and a number counting test. Because he believed that defendant's performance on these tests indicated intoxication,¹ Dillard asked defendant to submit to a preliminary chemical breath analysis test (PBT). After defendant registered 0.11 percent on the PBT, Dillard placed her under arrest for operating a motor vehicle under the influence of intoxicating liquor. Dillard then transported defendant to the Ferndale police station, where he administered two Breathalyzer tests. On both tests, defendant registered a blood alcohol content of 0.12 percent.

The prosecutor charged defendant with one count of operating a motor vehicle while under the influence of intoxicating liquor/unlawful blood alcohol level (OUIL/UBAL), M.C.L. § 257.625(1); M.S.A. § 9.2325(1). In the district court, defendant moved to suppress the results of the roadside sobriety tests, the PBT test, and the Breathalyzer test, arguing that the police officer lacked a proper basis for instructing her to get out of her vehicle and perform the sobriety tests. The district court granted defendant's motion to suppress the relevant evidence and dismissed the charge against her, reasoning as follows:

Just a bad smell without asking any questions like where are you coming from[,] a bar? Did you have any alcohol? Without any of that and without bad driving and without the fumbling that you sometimes see and without testifying—I didn't hear there was blood shot eyes; I didn't hear anything else as typically testified to for justifying giving the field sobriety test, and if there's no justification for giving [the] field sobriety test there's no justification for the PBT, and there's no justification for the breathalyzer. Motion is granted.

The prosecutor appealed the district court's decision to the circuit court, which affirmed. Applying a standard of review de novo, the circuit court concluded that the strong odor of intoxicants, standing alone, did not provide the police officer with reasonable cause to instruct defendant to get out of her vehicle and perform roadside sobriety tests.² The prosecutor appeals to this Court by leave granted. We reverse and remand for further proceedings consistent with this opinion.

Generally, this Court will not disturb a trial court's ruling at a suppression hearing unless that ruling is clearly erroneous. People v. Burrell, 417 Mich. 439, 448, 339 N.W.2d 403 (1983). "However, the underlying issue before us is `the strict application of a constitutional standard to uncontested facts. Application of constitutional standards by the trial court is not entitled to the same deference as factual findings.'" People v. Bordeau, 206 Mich.App. 89, 92, 520 N.W.2d 374 (1994), quoting People v. Nelson, 443 Mich. 626, 631, n. 7, 505 N.W.2d 266 (1993). Accordingly, we decide this constitutional question de novo.

In People v. Christie (On Remand), 206 Mich.App. 304, 308, 520 N.W.2d 647 (1994), this Court explained the standard applicable to a police officer's investigative stop of a criminal suspect:

It is well established that brief investigative stops short of arrest are permitted where police officers have a reasonable suspicion of ongoing criminal activity. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); People v. Faucett, 442 Mich. 153, 168, 499 N.W.2d 764 (1993). The totality of the circumstances test is to be used in cases involving investigative stops. Id., citing United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). The Cortez Court warned against overly technical reviews of a police officer's common-sense assessment of the probability that criminal activity is afoot. Faucett, supra at 168, 499 N.W.2d 764.

In determining whether the police officer's suspicion for making the investigative stop was reasonable, "[c]ommon sense and everyday life experiences predominate over uncompromising standards." Nelson, supra at 635-636, 505 N.W.2d 266. Deference should be given to the police officer's experience and the known patterns of certain types of lawbreakers. Id. at 636, 505 N.W.2d 266. In People v. Champion, 452 Mich. 92, 98, 549 N.W.2d 849 (1996), our Supreme Court further explained the reasonable suspicion required in order to justify a Terry investigative stop: "Reasonable suspicion entails something more than an inchoate or unparticularized suspicion or `hunch,' but less than the level of suspicion required for probable cause."

If an investigative stop of an automobile is proper, the officer is "permitted to briefly detain the vehicle and make reasonable inquiries aimed at confirming or dispelling his suspicions." People v. Yeoman, 218 Mich.App. 406, 411, 554 N.W.2d 577 (1996), citing Nelson, supra at 637, 505 N.W.2d 266. In this case, the state police trooper properly stopped defendant's vehicle for the defective equipment violation.³ However, defendant contends that a second investigative stop occurred when the officer instructed her to get out of the vehicle and perform the roadside sobriety tests. As a result, defendant argues that the second stop must be analyzed separately to determine whether the police officer complied with the requirements of Terry, supra. We agree.

In Burrell, supra, our Supreme Court considered a similar factual situation. In that case, the defendants' vehicle was properly stopped for a defective equipment violation. While investigating that violation, the police officers began to suspect that the vehicle was stolen, and detained defendants while seeking further information about the suspected crime. Our Supreme Court treated this factual situation as involving two separate detentions, the first involving the defective equipment violation and the second involving the suspicions that an unrelated crime had been committed. The Court explained that such a subsequent detention, after a legal stop of a vehicle, must be analyzed under the Terry standard:

However, since a stop almost inevitably leads to a brief detention for questioning, we draw guidance from these decisions as to the standard applicable to a brief detention on an unrelated matter following an otherwise lawful stop. Proceeding from the premise that a brief detention is at least as intrusive for Fourth Amendment purposes as a stop, we conclude that a brief detention for questioning is permissible if based on a reasonable and articulable suspicion of criminal activity. [Burrell, supra at 456-457, 339 N.W.2d 403 (emphasis in original).]

Burrell is helpful in deciding the present case because that decision makes clear that a police officer need not turn a blind eye to new indications of criminal activity that he observes after stopping a motor vehicle for an unrelated matter. If the officer's new observations support a reasonable, articulable, and particular suspicion that criminal activity is afoot, the police officer is permitted to take those circumstances into account during a brief detention, to either confirm or dispel the new suspicions. Id.

In this case, when Dillard conversed with defendant through the vehicle's open window, he detected a strong odor of intoxicants on her breath. At that point, the focus of his investigative stop changed from the defective equipment violation to a suspicion that defendant may have been operating a motor vehicle...