Opinion
No. 341039
03-21-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. LADAILE GERARD AVERY, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 17-006184-01-FH Before: O'BRIEN, P.J., and JANSEN and RONAYNE KRAUSE, JJ. PER CURIAM.
The prosecution appeals as of right the trial court's order dismissing all charges against defendant. Defendant was charged with two counts of felon in possession of a firearm, MCL 750.224f, two counts of felon in possession of ammunition, MCL 750.224f(6), one count of carrying a concealed weapon, MCL 750.227, and two counts of possession of a firearm during the commission of a felony, MCL 750.227b. The felony information also noted that defendant was a second habitual offender, MCL 769.10. The dismissal was predicated on the trial court's prior decision to suppress the evidence found after defendant's traffic stop. The prosecution argues that the search of defendant's vehicle after his arrest did not violate the Fourth Amendment because it fell under the inventory and automobile exceptions to the warrant requirement. We reverse and remand.
I. BACKGROUND
On July 7, 2017, defendant was pulled over because the passenger headlight of his vehicle was out. After pulling defendant over, the officers who pulled him over ran a Law Enforcement Information Network (LEIN) check on defendant and defendant's vehicle. The LEIN check revealed that defendant's vehicle had an expired license plate, which is an arrestable offense. The officers then arrested defendant and placed him in the back of a patrol vehicle. After defendant's arrest, an officer from the Taylor Police Department K-9 unit was called by the officers on the scene to do a narcotics sniff of the vehicle, and he arrived with his canine partner, Simon. Simon alerted to the presence of drugs in defendant's vehicle near the front passenger door. The officers then searched defendant's vehicle and found a revolver, an AK-47, and drug paraphernalia. The officers determined that defendant's vehicle needed to be impounded and called a tow truck to take his vehicle.
Defendant moved to suppress the evidence from the search of his vehicle, arguing that the search of his vehicle was unconstitutional under Arizona v Gant, 556 US 332; 129 S Ct 1710; 173 L Ed 2d 485 (2009), because he had already been arrested and placed in the back of a patrol vehicle before the officers searched his vehicle. The trial court agreed with defendant, holding that Gant prevented the search of defendant's vehicle because defendant was already secured in the back of a patrol vehicle at the time of the search. There is apparently no dispute that defendant had already been placed under arrest and was not merely being detained. The trial court also held that the search of defendant's vehicle was not a valid inventory search because there were less intrusive means to secure defendant's vehicle than impounding and towing the vehicle. This appeal followed.
II. STANDARD OF REVIEW
"Questions of law relevant to a motion to suppress evidence are reviewed de novo." People v Booker, 314 Mich App 416, 419; 886 NW2d 759 (2016) (citation and quotation marks omitted). "We review for clear error findings of fact necessary to the court's decision." People v Antwine, 293 Mich App 192, 194; 809 NW2d 439 (2011) (citation omitted). "A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made." Id. (citation and quotation marks omitted). Finally, "[q]uestions of constitutional and statutory interpretation present questions of law reviewed de novo." People v Hall, 499 Mich 446, 452; 884 NW2d 561 (2016).
"The Fourth Amendment of the United States Constitution and its counterpart in the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures." People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000). "In order to show that a search was in compliance with the Fourth Amendment, the police must show either that they had a warrant or that their conduct fell within one of the narrow, specific exceptions to the warrant requirement." Id. at 418. "Examples of exceptions to the warrant requirement are: (1) searches incident to arrest, (2) automobile searches and seizures, (3) plain view seizure, (4) consent, (5) stop and frisk, and (6) exigent circumstances." People v Davis, 442 Mich 1, 10; 497 NW2d 910 (1993). Finally, inventory searches of vehicles performed by police "pursuant to standard police procedures are reasonable." South Dakota v Opperman, 428 US 364, 372; 96 S Ct 3092; 49 L Ed 2d 1000 (1976).
III. EXCEPTIONS TO THE WARRANT REQUIREMENT
The prosecution argues that two exceptions to the warrant requirement are relevant to this case: the automobile exception and the inventory search exception. The trial court held that Gant prevented the search of defendant's vehicle because defendant was already secured in the back of a patrol vehicle when the officers searched defendant's vehicle. In Gant, the United States Supreme Court addressed the search incident to arrest exception to the Fourth Amendment, stating that "[a]mong the exceptions to the warrant requirement is a search incident to a lawful arrest." Gant, 556 US at 338. The scope of the Supreme Court's opinion in Gant is apparent in its holding:
Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. [Id. at 351 (emphasis added).]Gant's plain language shows that it is limited to the search incident to arrest exception to the warrant requirement and does not limit the reasonableness or constitutionality of searches conducted under other exceptions to the warrant requirement. Furthermore, this Court has recently examined the search incident to arrest exception as separate and distinct from the automobile and inventory search exceptions. People v Mead, 320 Mich App 613, 625-626; 908 NW2d 555 (2017), lv pending, see 501 Mich 1029 (2018). Thus, the trial court erred by holding that Gant applied to the search of defendant's vehicle in this case because the search was conducted under the automobile and inventory search exceptions, both of which are separate and distinct exceptions to the warrant requirement from the search incident to arrest exception examined in Gant.
IV. AUTOMOBILE EXCEPTION
Under the automobile exception, police may search a vehicle without a warrant and still comply with the Fourth Amendment "if probable cause exists to believe it contains contraband." People v Clark, 220 Mich App 240, 242; 559 NW2d 78 (1996). Due to the lessened expectation of privacy in an automobile, "if police have probable cause to search a car, they need not get a search warrant first even if they have time and opportunity." Id. (citation and quotation marks omitted). Once police have probable cause to search a vehicle, they can search every part of the vehicle "that may conceal the object of the search." People v Carter, 194 Mich App 58, 60-61; 486 NW2d 93 (1992) (internal quotation omitted).
A police dog's alert to the presence of drugs in a vehicle, without more, is sufficient for probable cause to search a vehicle, so long as "the use of the dog is itself [not] the result of illegal conduct by the officers." Clark, 220 Mich App at 243-244. "[A] canine sniff is not a search within the meaning of the Fourth Amendment as long as the sniffing canine is legally present at its vantage point when its sense is aroused." People v Jones, 279 Mich App 86, 93; 755 NW2d 224 (2008). Furthermore, "as long as the traffic stop is not prolonged, an officer may use a drug-detection dog to sniff a vehicle during the stop, even if the defendant does not consent and the officer lacks reasonable, articulable suspicion that the occupants of the vehicle are involved with narcotics." People v Williams, 472 Mich 308, 318 n 16; 696 NW2d 636 (2005). The reasonableness of a traffic stop must "take into account the evolving circumstances with which the officer is faced" and "when a traffic stop reveals a new set of circumstances, an officer is justified in extending the detention long enough to resolve the suspicion raised." Id. at 315.
Defendant was pulled over because the passenger headlight of his vehicle was out. After asking for defendant's license and registration and running a LEIN check on defendant's vehicle, the officers discovered that defendant's vehicle had a cancelled license plate, which was an arrestable offense. The officers then arrested defendant for driving a vehicle with a cancelled license plate and determined that they should impound defendant's vehicle. The K-9 officer arrived with Simon 16 minutes after defendant was pulled over and about seven minutes after he was arrested and detained in the back seat of the patrol vehicle. Given the new information obtained and the corresponding evolving circumstances after defendant was pulled over, the discovery of defendant's cancelled license plate offense and his subsequent arrest, the traffic stop does not appear to have been unreasonably prolonged for the purpose of having Simon arrive and attempt to alert to drugs in defendant's vehicle. See Williams, 472 Mich at 318 n 16. After Simon alerted to the presence of drugs in defendant's vehicle, this provided the officers with sufficient probable cause to search defendant's vehicle for drugs under the automobile exception. Clark, 220 Mich App at 243-244. Thus, the officers did not violate the Fourth Amendment by searching defendant's vehicle following Simon's alert to the presence of drugs in defendant's vehicle.
V. INVENTORY SEARCH EXCEPTION
We recognize that both parties made extensive arguments pertaining to the legality of the search under the inventory exception to the warrant requirement. As previously mentioned, both the automobile and inventory search exceptions are separate and specific exceptions to the warrant requirement. Davis, 442 Mich at 10 (holding that a search need only fall under one of the exceptions to the warrant requirement). Because we find this search valid under the automobile exception, we need not address whether or not it is also a valid search under the inventory exception.
VI. CONCLUSION
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Colleen A. O'Brien
/s/ Kathleen Jansen
/s/ Amy Ronayne Krause