People v. Swenor

• Decision Date: 18 March 2021
• Docket Number: 352786
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dennis Lee SWENOR, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

336 Mich.App. 550

971 N.W.2d 33

PEOPLE of the State of Michigan, Plaintiff-Appellant,

v.Dennis Lee SWENOR, Defendant-Appellee.

No. 352786

Court of Appeals of Michigan.

Submitted December 3, 2020, at Grand Rapids.

Decided March 18, 2021, 9:20 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Mark J. Wiese, Prosecuting Attorney, and Jenna M. Nelson, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Steven Helton) for defendant.

Before: Karen M. Fort Hood, P.J., and Sawyer and Servitto, JJ.

Karen M. Fort Hood, P.J.

The prosecution appeals by leave granted¹ the order of the trial court granting defendant's motion to suppress evidence discovered as the result of an inventory search of defendant's personal property. On appeal, the prosecution argues that the trial court should not have granted defendant's motion because it was not required to have a written policy addressing the specific kind of inventory search conducted in this case. The prosecution further contends that suppression was an inappropriate remedy in this case. We agree that a written policy is not necessarily required for an inventory search of personal property to be constitutional, but because the prosecution did not properly preserve this issue,² we affirm. The trial court's decision was not plainly or obviously erroneous given the precedent available to it. Moreover, whether suppression was an appropriate remedy is an issue we generally decline to review when unpreserved.

I. FACTUAL BACKGROUND

At the preliminary examination, Marquette County Sheriff's Office Deputy Jesse Fergin-Kuehnl testified that, on August 3, 2019, he was dispatched to a Walmart regarding "some suspicious subjects in the Walmart area." A loss-prevention associate had called about two men sitting on a bench outside of the store. The associate had stated that, several days before, one of the subjects had attempted to conceal items in the store. The associate identified defendant by name.

When Deputy Fergin-Kuehnl arrived at the store, the store's loss-prevention manager stated that the two men were on a bench by the vending machines. The manager directed Deputy Fergin-Kuehnl to defendant and another man, Keith Gronseth, and stated that he wanted the men removed from the premises. The manager also told Deputy Fergin-Kuehnl that he had previously served a no-trespass order on defendant. Deputy Fergin-Kuehnl found the two men on a bench outside the store's west entrance, where he asked defendant and Gronseth why they were there. Both stated that they planned to return items to the store. Deputy Fergin-Kuehnl testified that "there were two full carts, Walmart carts, filled with what appeared to be personal property," and that Gronseth had a small shopping bag. When Deputy Fergin-Kuehnl asked whose property was in the carts, defendant stated that it was his property. Deputy Fergin-Kuehnl noted that the items did not appear to be stolen or purchased from the Walmart. He described the property as backpacks that were worn and did not have tags on them, a safe that appeared to have been previously pried open, a damaged subwoofer, and "multiple other property items that, uh, were definitely not new."

Deputy Fergin-Kuehnl questioned the men for approximately 10 minutes. Gronseth consented to a search of his shopping bag, but defendant did not consent to a search of his property. Thereafter, Deputy Fergin-Kuehnl made contact with the loss-prevention manager and confirmed the existence of a no-trespass order issued on defendant. On the basis of the no-trespass order, Deputy Fergin-Kuehnl placed defendant under arrest. Deputy Fergin-Kuehnl testified that he then took defendant's property "into safekeeping while he was lodged in Marquette ... [.]" When asked whether defendant stated whether he wanted anything done with his property, Deputy Fergin-Kuehnl responded, "No, I don't believe he did." He then stated that defendant may have mentioned his girlfriend, Jacqueline Swanson. However, when Swanson arrived about 10 minutes later, she too was arrested for trespassing.³

Defendant's property was placed in the backseat of a patrol car and later transported to the "sally port," which was a secure location where large amounts of property were kept by police. Deputy Fergin-Kuehnl performed an inventory search of defendant's property. During the search, he found a black backpack. Inside the backpack was a small, red-and-black zipper bag, which Deputy Fergin-Kuehnl opened "to insure that there was no valuable property" inside. The bag had a small, black digital scale with a white powdery residue on the weighing area. In his experience, white powdery substances found on scales were most commonly methamphetamine or cocaine. When Deputy Fergin-Kuehnl performed a methamphetamine field test kit, the scale tested positive for methamphetamine. He drafted a search warrant for entry into the safe, in which he found "a syringe or two" and a clear glass smoking pipe with a gray and brown residue. He sent the pipe to the Michigan State Police crime lab for analysis.

Deputy Fergin-Kuehnl stated at defendant's preliminary examination that there was a written departmental policy for inventory searches, but he "could not recite it word-for-word." At the subsequent hearing on the motion to suppress the evidence, Deputy Fergin-Kuehnl testified that large amounts of property were generally inventoried in a secure location:

Q. Why didn't you inventory it there at Walmart?

A. Generally, with large amounts of property, we will take that back to our office in a secured location. We don't have property forms in our patrol vehicles, so it's a lot better to do it in a controlled environment, secure environment, and take inventory of everything.

The Marquette County Sheriff's Office search and seizure guidelines provide that "[a]ll searches require a warrant, unless they fall into one of the following exceptions to the warrant requirement[.]" The listed exceptions include "[s]earch based on impounding a vehicle and its inventory." The guidelines provide that an inventory search is only permitted to protect the owner's property, to protect officers from false claims, and to protect officers "from the danger of vehicle contents." The guidelines provide that officers "may not just routinely impound and inventory any vehicle." A vehicle only may be impounded if it creates a traffic hazard, if the vehicle is abandoned, or to protect the vehicle from vandalism or theft.⁴ Notably, the guidelines do not mention an inventory search of personal property.⁵

Defendant was ultimately charged with felony possession of methamphetamine and misdemeanor trespass. On October 31, 2019, defendant moved to suppress the evidence—the methamphetamine—found in his personal property. According to defendant, an inventory search was required to be conducted pursuant to standardized departmental procedures that ensured that specific property was not singled out for search on the basis of improper motives. Defendant argued that he was arrested for trespass, and there was no indication that his personal property contained evidence of the same. Defendant further noted that there were people on the scene who could have taken possession of defendant's property. The prosecution did not file a written response to defendant's motion. At the motion hearing, however, the prosecution argued that the police officers had not acted impermissibly when they placed defendant's property in the patrol car, and that an impoundment was not unconstitutional solely because the police could have made alternative arrangements.

The trial court asked the prosecution whether it was necessary for police officers to have a written policy to conduct an inventory search:

The Court : ... Most of the law about inventory searches talks about there—it being, you know, pursuant to a policy. Is it the People's position that a specific personal property inventory search policy isn't required, that it's constitutional irrespective of written policy?

[The Prosecutor ]: As in to—to the manner of how they do the search?

The Court : The ability to do the search at all. I mean, I think most of the case law in the area, and I—you know, just from looking at the briefs, too, makes statements like, if it's done pursuant to departmental regulations, and so forth.

[The Prosecutor ]: Correct.

The Court : And it's not clear to me whether there are any departmental regulations on personal property versus vehicles. Because this is kind of written in a vehicle context, I don't know whether there is or not. But the one that's offered—

[The Prosecutor ]: Right.

The Court :—seems like it might be vehicle specific.

[The Prosecutor ]: Well, and—though the idea behind it might be vehicle specific, I think this is a sufficient policy to comply with that because it talks about the reasons you're doing it ....

The prosecutor later argued, "I think the best practice is that you're doing it pursuant to policy because I think the history behind the need for an inventory search is for the reasons that the Marquette Sheriff's Office has cited, but it's also to avoid just using it as a shield to go looking for evidence." The prosecutor stated that, without a written policy, practices over time might focus on specific individuals or types of arrests, which would violate the Fourth Amendment. The prosecutor then stated, "I think the idea that you have this policy is a supplement to the actual authority to it [sic], but it's not the basis from which the authority flows."

Following arguments on the motion, the trial court noted that it had reviewed People v. Toohey , 438 Mich. 265, 272, 475 N.W.2d 16 (1991). The court stated, "The defense appeared to argue that the inventory search policy regarding vehicles is equally applicable to the impoundment and inventory of personal property." It directed counsel to further brief the issue and to specifically answer whether the trial court could apply the...