U.S. v. Marls
| Decision Date | 19 September 2002 |
| Docket Number | No. 01-80332.,01-80332. |
| Citation | 227 F.Supp.2d 708 |
| Parties | UNITED STATES of America, Plaintiff, v. Anthony MARLS, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Patricia C. Uetz, United States Attorney's Office, Detroit, MI, for Plaintiff.
Federal Defender, Federal Defender Office, Detroit, MI, for Defendant.
Defendant Anthony Marls is charged with being a Felon in Possession of Firearm in violation of 18 USC § 922(g)(1). A Motion to Suppress the firearm filed by Defendant was referred by this Court to Magistrate Judge Virginia Morgan for a Report and Recommendation ("R & R"). After conducting an evidentiary hearing, Magistrate Morgan recommended that the Court grant Defendant's motion. The Government has filed objections. For the reasons stated below, the Court ADOPTS the Magistrate's R & R.
On March 17, 2001, Officer Malik Jones was acting as a decoy in a prostitution sting operation. If someone made an offer to engage in an act of prostitution to Officer Jones, she was to give a pre-arranged signal to a nearby police car (the Eye) which would signal another police car (the take down crew) which would immediately arrive on the scene.1 Under normal circumstances, the responding officers would detain the motorist, issue an appearance ticket for the misdemeanor offense of Offer to Engage (OTE) and confiscate the motorist's vehicle pending civil forfeiture proceedings. The confiscated vehicle would then be driven by the responding officers to a staging area. At the staging area, the motorist would be given a trash bag for the items he/she wished to remove from the vehicle and allowed to leave via waiting taxi cabs. At some point, the responding officers would take an inventory of the contents of the vehicle.
On that date, Defendant allegedly solicited Officer Jones. She testified that Defendant waved at her to approach his vehicle, his employer's catering van. She approached on the driver's side. A conversation ensued in which the Defendant asked if she was the police, to which she responded, "No." Defendant then said that he wanted "to fuck." Officer Jones said, "What are you talking about?" Defendant then displayed paper currency. This is the extent of Officer Jones' conversation with Defendant, according to her.
Following this exchange, Officer Jones signaled the Eye with a flashlight. The Eye could see Officer Jones conversing with Defendant, but could not hear them. The conversation was not captured by a recording or other device. The Eye radioed the "take down crew," Officers Mario Neal and Steve White. Officers Neal and White then responded in a fully marked scout car and effected a traffic stop of Defendant's van.
Officers Neal and White testified that, prior to receiving their signal, they had been around the block in an alley. They did not observe the alleged exchange between Defendant and Officer Jones; they acted solely on information received from the Eye.
The officers ordered Defendant out of the van, handcuffed him and placed him in their squad car. However, Officer Neal testified that Defendant was not arrested at this point; he was merely being detained. It was not until the gun was found that Neal said Defendant was under arrest. Officer Neal got into Defendant's van, looked around the front and back seats with a flashlight, did not see anything and drove it less than one half mile to a nearby high school parking lot where other seized cars had been taken.
There are some conflicts in Officer Neal's testimony regarding the subsequent sequence of events. At the earlier preliminary exam and the evidentiary hearing, on direct examination, Officer Neal testified that he found a 9mm semi-automatic handgun between the front seats during an inventory search. (Prelim Exam Tr at p. 14). However, at the evidentiary hearing on cross examination, he testified that he noticed the gun as he got out of the van, prior to doing the inventory search, which would have been conducted by another officer. (Evidentiary Hearing Tr at pp. 45-46). Officer White testified that, after the initial stop, he did not see a gun when he looked in the van with his flashlight to see if anyone else was inside.
With Officer Neal's discovery of the firearm, the officers arrested Mr. Marls for carrying a concealed weapon, a felony. He was still issued a ticket for the OTE.
Defendant was ultimately charged by the State of Michigan with carrying a concealed weapon, firearm possession by a felon and felony firearm. These charges were dismissed to allow federal prosecution.
Citing People v. Dixon, 392 Mich. 691, 696-699, 222 N.W.2d 749 (1974), the Government asserts that the "police team" theory of probable cause applies in this case. That theory is that the facts observed by various officers may be combined and relayed among the officers to satisfy the presence requirement for a misdemeanor arrest. Here, one officer indicated to her sergeant that a crime had been committed. The sergeant radioed the surveillance team who moved in to effect the arrest. Under Michigan law, this is a valid misdemeanor arrest according to the Government.
The Magistrate's finding that the "police team" theory does not apply to the 90-day misdemeanor with which Defendant was charged is correct. An officer may not effect an arrest for a misdemeanor without a warrant unless the misdemeanor was committed in the officer's presence. MCL 764.15(a); People v. Spencley, 197 Mich. App. 505, 507, 495 N.W.2d 824 (1992). An exception to this rule, however, was created by the Michigan Supreme Court in People v. Dixon, 392 Mich. 691, 696-699, 222 N.W.2d 749 (1974). In Dixon, the court adopted the "police team" theory whereby an officer can satisfy the "presence" requirement by relying upon facts observed by other officers. Id.
In a recent amendment to M.C.L. § 764.152, the Michigan legislature effectively codified the "police team" theory by adding language allowing an officer to utilize information from other officers to make a warrantless arrest of misdemeanors committed outside the officer's presence, for misdemeanors punishable by 92 or more days:
(1) A peace officer, without a warrant, may arrest a person in any of the following situations:
* * * * * *
(f) The peace officer has received positive information broadcast from a recognized police or other governmental radio station, or teletype, that affords the peace officer reasonable cause to believe a misdemeanor punishable by imprisonment for more than 92 days or a felony has been committed and reasonable cause to believe the person committed it. MCL 764.15(1)(f).
Before this amendment, an officer was only permitted to utilize information obtained from other officers to establish probable cause to believe that a felony had been committed:
(1) A peace officer, without a warrant, may arrest a person in any of the following situations:
* * * * * *
(f) When he has received such positive information broadcast from any recognized police or other governmental radio station, or teletype, as may afford him reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it.
It is undisputed that the offense with which Defendant was charged, solicitation/offering to engage was only a 90-day misdemeanor at the time of his arrest. Because the legislature expressly limited the application of the "police team" theory to offenses punishable by at least 92 days, the Court must presume that the legislature intended to exclude those offenses punishable by less than 92 days. Consequently, the "police team" theory does not apply to the offense for which Defendant was charged. Accordingly, under state law, Officers Neal and White were not permitted to rely upon the "signals" from Officer Jones and the Eye to effect an arrest of Defendant for solicitation/OTE, since the alleged misdemeanor offense was not committed in their presence.
However, after finding that the officers did not have authority to arrest Defendant for the charged misdemeanor, the Magistrate did not address whether the officers had any authority to stop and detain defendant in order to issue an appearance ticket.3 MCL 764.9c(1) only indicates that an officer who has effected a warrantless arrest for a misdemeanor or ordinance violation has the discretion to issue an appearance ticket and release the individual from custody:
[I]f a police officer has arrested a person without a warrant for a misdemeanor or ordinance violation for which the maximum permissible penalty does not exceed 93 days in jail or a fine, or both, instead of taking the person before a magistrate and promptly filing a complaint as provided in section 13 of this chapter, the officer may issue to and serve upon the person an appearance ticket as defined in section 9f of this chapter and release the person from custody.
The Court will discuss this in the context of its Fourth Amendment analysis below.
While the Government initially made arguments that several "search incident" theories would apply to justify the search which uncovered Defendant's weapon, it now seems to concede that Defendant was not lawfully "arrested" for solicitation and, therefore, the "search incident" theories do not apply. However, the Government objects to the Magistrate's finding that "without evidence of felonious activity and/or a judicial complaint for forfeiture, the seizure of the vehicle was unreasonable under the Fourth Amendment." (R & R at 11).
The Government contends that even if Defendant's detention and the subsequent seizure did not comply with Michigan law, the misdemeanor citation and subsequent seizure and search of the van were...
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...of gunfire both created and constituted the nuisance, which was clearly insufficient under Bennis I . See United States v. Marls , 227 F.Supp.2d 708, 715-716 (E.D.Mich., 2002) (indicating that a single act of soliciting prostitution from a vehicle was not sufficient under Bennis I for forfe......
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... ... demanding of police than the Fourth Amendment. Compare ... United States v. Marls , 227 F.Supp.2d 708, 711 (E.D ... Mich. 2002) (“An officer may not effect an arrest for a ... misdemeanor [under Michigan law] without ... ...