Opinion
357302
09-22-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. PAUL LAMOUNT GOREE, Defendant-Appellee.
UNPUBLISHED
Wayne Circuit Court LC No. 18-009718-01-FH
Before: M. J. Kelly, P.J., and Murray and Borrello, JJ.
Per Curiam.
The prosecution appeals as of right the order dismissing the charges against defendant of possession of less than 25 grams of cocaine, MCL 333.7403(2)(a)(v); possession of the controlled substance Alprazolam, MCL 333.7403(2)(b); and possession of marijuana, MCL 333.7403(2)(d). The issue in this appeal is whether the trial court erred in granting defendant's motion to suppress evidence seized during a search of the vehicle in which defendant was a passenger. The prosecution also disputes the trial court's order requiring the return of civil forfeiture funds to defendant. We reverse and remand for further proceedings.
I. BACKGROUND
Dearborn Heights Police Department Officer Jacob Esposito executed a traffic stop of the vehicle in which defendant was a passenger after observing the vehicle's license plate was unlit. According to Officer Esposito, the vehicle stopped within a reasonable amount of time, and there was no reason to suspect the vehicle's occupants possessed any illegal substances.
After verifying that the vehicle and the driver were properly licensed and insured, Officer Esposito returned to the vehicle. Before releasing the vehicle, however, Officer Esposito observed that the driver continued to appear "nervous" and "fidgety," so Officer Esposito asked the driver to step out of the vehicle. Officer Esposito then observed defendant make a "furtive gesture" to the floor of the vehicle, and Officer Esposito thought defendant, too, appeared "a little nervous." Defendant was also ordered from the vehicle. As defendant exited the vehicle, Officer Esposito smelled marijuana and noticed a small orange pill on the passenger seat where defendant was sitting. Officer Esposito searched the vehicle where illegal substances were discovered.
Defendant moved the trial court to dismiss, arguing Officer Esposito illegally prolonged the traffic stop and, therefore, the evidence obtained as a result of the stop should be suppressed. The trial court agreed, finding that the search and seizure were unreasonable. As a result of this ruling, defendant moved to dismiss the charges, which the trial court granted. Defendant moved for the return of $554 seized along with the substances, which the trial court also granted. This appeal followed.
II. SUPPRESSION OF THE EVIDENCE
A. PRESERVATION AND STANDARD OF REVIEW
Generally, an issue must be raised in the trial court to preserve it for appellate review. People v Heft, 299 Mich.App. 69, 78; 829 N.W.2d 266 (2012). The prosecution presents several arguments contesting the trial court's order suppressing the evidence-some of which are unpreserved for our review because they were not presented in the trial court. These unpreserved arguments include the prosecution's contention defendant lacks standing to challenge the search of the subject vehicle, and that Officer Esposito's search was reasonable under the search incident to lawful arrest exception to the warrant requirement. The prosecution's other arguments contesting the suppression of the evidence are preserved because some variation of these arguments was presented to the trial court.
This Court reviews de novo a trial court's decision on a motion to suppress. People v Henry (After Remand), 305 Mich.App. 127, 137; 854 N.W.2d 114 (2014). With respect to the prosecution's preserved arguments, this Court reviews for clear error the trial court's factual findings as to a motion to suppress. People v Hrlic, 277 Mich.App. 260, 262-263; 744 N.W.2d 221 (2007). "Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made." People v Blevins, 314 Mich.App. 339, 348-349; 886 N.W.2d 456 (2016). The prosecution's unpreserved arguments are reviewed for plain error. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999).
"To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id. (quotation marks and citation omitted). "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. at 763-764 (quotation marks and citation omitted). "To the extent that a trial court's ruling on a motion to suppress involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo." People v Clark, 330 Mich.App. 392, 415; 948 N.W.2d 604 (2019) (quotation marks and citation omitted).
B. LAW AND ANALYSIS
The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [US Const, Am IV (footnote added).]
Similarly, the Michigan Constitution states:
The person, houses, papers, possessions, electronic data, and electronic communications of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things or to access electronic data or electronic communications shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state. [Const 1963, art 1, § 11.]
"[T]he 'touchstone of the Fourth Amendment is reasonableness.'" People v Williams, 472 Mich. 308, 314; 696 N.W.2d 636 (2005), quoting Ohio v Robinette, 519 U.S. 33, 39; 117 S.Ct. 417; 136 L.Ed.2d 347 (1996). "Reasonableness is measured by examining the totality of the circumstances. Because of endless variations in the facts and circumstances implicating the Fourth Amendment, reasonableness is a fact-intensive inquiry that does not lend itself to resolution through the application of bright-line rules." Williams, 472 Mich. at 314 (quotation marks and citations omitted). "A warrantless search and seizure is unreasonable per se and violates the Fourth Amendment of the United States." People v Reed, 393 Mich. 342, 362; 224 N.W.2d 867 (1975).
Under the exclusionary rule, evidence obtained as a result of an illegal search or seizure is generally regarded as "fruit of the poisonous tree" and will be excluded in the case against the defendant. People v Mahdi, 317 Mich.App. 446, 470; 894 N.W.2d 732 (2016). "The exclusionary rule is a judicially created doctrine intended to compel compliance with the right of persons to be free from unreasonable searches and seizures." People v Maggit, 319 Mich.App. 675, 693-694; 903 N.W.2d 868 (2017). This is "a harsh remedy designed to sanction and deter police misconduct where it has resulted in a violation of constitutional rights and should be used only as a last resort." People v Corr, 287 Mich.App. 499, 508; 788 N.W.2d 860 (2010) (quotation marks and citation omitted). The exclusionary rule is designed to deter future Fourth Amendment violations by law enforcement. People v Hill, 299 Mich.App. 402, 412; 829 N.W.2d 908 (2013), quoting Davis v United States, 564 U.S. 229, 236-237; 131 S.Ct. 2419; 180 L.Ed.2d 285 (2011).
A traffic stop is considered a seizure for purposes of the Fourth Amendment. People v Simmons, 316 Mich.App. 322, 326; 894 N.W.2d 86 (2016) ("[S]topping a vehicle and detaining the occupants amounts to a seizure."); Brendlin v California, 551 U.S. 249, 256-257; 127 S.Ct. 2400; 168 L.Ed.2d 132 (2007) (A passenger was seized for purposes of the Fourth Amendment because a reasonable person in the passenger's position would not feel free to terminate the encounter and leave.). An officer may stop a vehicle so long as the officer has probable cause to believe a violation of traffic laws has occurred. People v Davis, 250 Mich.App. 357, 363; 649 N.W.2d 94 (2002). After stopping the vehicle, the officer may detain the vehicle long enough to run a Law Enforcement Information Network ("LEIN") check, id. at 364-368, and to ask reasonable questions concerning the alleged traffic violation, with due concern for the safety of the encounter. Williams, 472 Mich. at 315. "Authority for the seizure thus ends when tasks tied to the traffic infraction are-or reasonably should have been-completed." Rodriguez v United States, 575 U.S. 348, 354; 135 S.Ct. 1609; 191 L.Ed.2d 492 (2015). However, "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." Williams, 472 Mich. at 315.
The trial court ruled that Officer Esposito did not have probable cause to search the passenger side of the vehicle because the officer testified that defendant only made a "furtive gesture," and did not indicate anything else of concern. But Officer Esposito's testimony, which was unrefuted, was that the driver of the vehicle appeared nervous and fidgety during the entirety of the stop. Under Pennsylvania v Mimms, 434 U.S. 106; 98 S.Ct. 130; 43 L.Ed.2d 331 (1977) and its progeny, Officer Esposito did not violate the Fourth Amendment by ordering the driver and defendant out of the vehicle.
Mimms held that "once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures." Id., 434 U.S. at 111 n 6. Mimms established a "bright line" rule. Maryland v Wilson, 519 U.S. 408, 413 n 1; 117 S.Ct. 882; 137 L.Ed.2d 41 (1997). This bright-line rule was summarized by then-Judge Kavanaugh in United States v Bullock, 379 U.S. App DC 114, 117; 510 F.3d 342 (2007):
The bright-line rule of Mimms means that 'a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.' Wilson, 519 U.S. at 410. The Supreme Court later extended the bright-line rule to passengers, holding that 'an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.' Id. at 415. As the Supreme Court has explained, the risk of harm to the police when stopping a car' "is minimized if the officers routinely exercise unquestioned command of the situation."' Brendlin v California, 551 U.S. 249; 127 S.Ct. 2400, 2407; 168 L.Ed.2d 132 (2007) (quoting Wilson, 519 U.S. at 414).
Thus, it is not violative of the Fourth Amendment for an officer to ask the occupants of a vehicle to exit the vehicle prior to the completion of the traffic stop.
It is equally well-settled that a traffic stop is not over until the officer completes his investigation and releases the driver to leave. Arizona v Johnson, 555 U.S. 323, 333; 129 S.Ct. 781; 172 L.Ed.2d 694 (2009) ("Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave."). See also, Bullock, 379 U.S. App DC at 348 n 1 (noting that "the stop would not have terminated until, at a minimum, Officer Jackson issued citations for Bullock's traffic violations or decided to let Bullock depart"), and United States v Lott, 954 F.3d 919, 923-924 (CA 6, 2020). This rule must, of course, be understood in light of Rodriguez, where the Court held that the constitutionally tolerable length of a traffic stop is determined by when the mission to complete the traffic stop ends or reasonably should have ended. Rodriguez, 575 U.S. at 350-351 ("We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, 'become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission' of issuing a ticket for the violation").
But Rodriguez did not modify the Mimms rule; it instead just reaffirmed the principle that a traffic stop ends, absent reasonable suspicion to commence a new investigation into other criminal activity, once a reasonable time has passed to allow the officer to investigate the traffic issue and ensure safety during the encounter. Id., at 354-356. This was the recent conclusion of the Wisconsin Supreme Court:
Brown argues Rodriguez narrowed the per se rule of Mimms to allow removal from a vehicle only if attendant to the mission of the stop. Not quite. With respect to Mimms, Rodriguez said only that a dog sniff did not serve the same 'highway and officer safety ... interests' as those justifying ordering the driver to exit the vehicle, while emphasizing that the officer safety interest 'stems from the mission of the stop itself.' Rodriguez, 575 U.S. at 356-57. As Brown conceded at oral argument, issuing a traffic ticket is part of the traffic stop. At the time Deering directed Brown to exit the vehicle, Deering still had the ticket and Brown's driver's license in his possession, leaving part of the traffic stop's mission uncompleted. See State v Floyd, 377 Wis.2d 394; 2017 WI 78; 898 N.W.2d 560 (2017) ('Until [drafting the tickets and explaining them to the driver] is done, and so long as [law enforcement] does not unnecessarily delay the process, the permissible duration of the traffic stop has not elapsed.' (citing Rodriguez, 575 U.S. at 354-55)). Finally, Brown argues the stop 'reasonably should have been completed' because Deering had completed writing the ticket, so all that remained was handing the ticket to Brown and ending the seizure. We rejected this argument in Floyd and have no reason to reconsider it. Id. Because the mission of the stop continued, officer safety remained a viable concern and the per se rule of Mimms fully applies. [State v Brown, 392 Wis.2d 454, 470; 2020 WI 63; 945 N.W.2d 584 (2020)].
Accord: Hill v State, 360 Ga App 683, 688; 859 S.E.2d 891 (2021) (Recognizing that the officer did not exceed his authority by asking the defendant to exit the vehicle after completing the ticket paperwork and returning to defendant's vehicle), State v Pylican, 167 Idaho 745, 754; 477 P.3d 180 (2020) (Concluding that Rodriguez did not abrogate Mimms; "Instead, Rodriguez stands for the proposition that the underlying safety concerns which justify exit orders do not extend to general criminal investigations that are undertaken when the purpose of the lawful stop has been abandoned"), and United States v Washington, 385 U.S. App DC 144, 147-149; 559 F.3d 573 (2009).
Here, Officer Esposito had completed the check of the driver's credentials and was returning to the car to hand the papers back to the driver. When he returned to the vehicle Officer Esposito noticed that the driver continued to appear nervous and fidgety, and ordered him out of the car. It was at that point that the officer saw defendant make the furtive gesture while the driver was exiting the vehicle. Thus, the stop was nearing its end but was in no way complete when the gesture (and the driver's nervousness/fidgeting) was seen. At that point, under Mimms and its progeny, Officer Esposito could order all occupants out of the vehicle to ensure officer safety.
Officer Esposito could not recall whether he handed back the driver's information prior to asking him to exit the vehicle, while defendant testified that the driver was asked out of the vehicle before initially providing Officer Esposito with that paperwork. In the trial court's decision it noted that the driver was asked out of the vehicle prior to being given the ticket. In any event, it appears undisputed that Officer Esposito had not released the driver at the time he asked him to exit the vehicle.
Our dissenting colleague asserts that our conclusion that the stop was not over until Officer Esposito handed back the paperwork to the driver constitutes our own fact-finding. Not true. Instead, we exclusively rely upon the cited caselaw indicating that a stop is not over until the officer returns the documents and releases the driver. See Arizona, 555 U.S. at 333; Bullock, 379 U.S. App DC at 348 n1; Lott, 954 F.3d at 923-924; Brown, 392 Wis.2d at 470. We agree with the dissent that an officer cannot unreasonably extend the stop without running afoul of the Fourth Amendment (absent evidence of a new crime), but Officer Esposito did no such thing. He was simply returning to the car to hand the documents to the driver when he saw the continued nervousness and asked him out of the car, where he then saw defendant make a furtive gesture. This raised an officer safety concern, and as Mimms recognized, "[e]stablishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault." Mimms, 434 U.S. at 110.
Although case law is fairly consistent in holding that nervousness alone does not provide an officer with reasonable suspicion that criminal activity is afoot (essentially on the ground that most all motorists are nervous during a traffic stop), see, e.g., United States v Blair, 524 F.3d 740, 753 (CA 6, 2008), Officer Esposito did not need reasonable suspicion to ask both defendant and the driver to exit the vehicle. Instead, the objective need for officer safety-particularly when combined with the driver's nervousness/fidgeting and defendant's furtive motion made towards the vehicle floor-was enough to order them out. Importantly, the concern for officer safety is an objective one, and is not reliant on the officer himself testifying to that concern. See United States v Goodwill, 24 F.3d 612, 615 (CA 7, 2022) ("A police officer can ask a driver to sit in the police car for the duration of a traffic stop without any particularized suspicion of dangerousness."). Indeed, in Mimms itself, the Court upheld an exit order where the officer "freely concede[d]" that he had "no reason to suspect foul play from the particular driver at the time of the stop . . ." Mimms, 434 U.S. at 109.
But see United States v Edmonds, 345 U.S. App S.C. 131, 137; 240 F.3d 55 (2001) (suspect reached under driver's seat and held that "this Court recognizes that 'furtive' gestures in response to the presence of the police can serve as the basis of an officer's reasonable suspicion") and Washington, 385 U.S. App DC at 148 ("It is well settled that an individual's furtive movements may be grounds for reasonable suspicion and fear, justifying a Terry stop and search").
It is true that Officer Esposito could have simply handed back the documents and let the vehicle leave. But his decision not to do so did not prolong the traffic stop, at least not in the sense of the traffic stop turning into a new investigation. Instead, a legitimate and objective concern was presented by a driver who continued to be nervous and fidgety upon the officer's return to the vehicle. Because the stop was not complete, Officer Esposito could order the driver out. Ordering the driver out at this point did not change the course of the stop, nor did it extend it beyond the nonconstitutional concern of asking a driver to exit the vehicle. Mimms, 434 U.S. at 111. And, as the driver exited, defendant made a furtive gesture towards the floor. Under Mimms, the officer was free to ask both persons out of the vehicle. After that happened, there is no reasonable argument that the smell of marijuana and defendant's admission to possessing same without a lawful ability to do so, MCL 333.7403(2)(d), provided probable cause to arrest defendant and engage in a search incident to that arrest.
It would not, for example, violate the Fourth Amendment for an officer to ask the driver to exit the vehicle to hand back the paperwork and any ticket or warning. This holds true because, until a traffic stop is over, an officer is operating in a situation fraught with unknown or hidden dangers. Mimms, 434 U.S. at 110-111; Rodriguez, 575 U.S. at 356 ("Traffic stops are 'especially fraught with danger to police officers,' so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely." (emphasis added) (citations omitted)).
We decline to resolve whether the trial court had jurisdiction to return the civil forfeiture funds because the issue is not properly before this Court. First, the question was not contained in the questions presented. This Court has rejected consideration of issues not contained in the questions presented. See People v Albers, 258 Mich.App. 578, 584; 672 N.W.2d 336 (2003) (declining to consider an argument not in the question presented). Second, it does not appear the prosecution presented any evidence or argued that the trial court lacked jurisdiction. The issue is not properly preserved.
For these reasons, we reverse the trial court order suppressing the evidence, and remand for further proceedings. We do not retain jurisdiction.
MICHAEL J. KELLY, CHRISTOPHER M. MURRAY JJ.
Murray, J., (concurring).
I fully concur in the majority opinion but write separately to address an issue not raised by the parties but acknowledged by them: the numerous difficulties experienced during the suppression hearing that was conducted remotely.
The suppression hearing was conducted over two days, March 12 and April 14, 2021. The hearing was conducted remotely, presumably because of the pandemic and AO 2020-17. As both appellate counsel conceded at oral argument before this Court, the hearing was filled with technical and related difficulties that would not have been present had this been an in-person evidentiary hearing. For example, there were 17 requests for a participant to "unmute" their audio function, and six times when a video camera was either turned off or frozen. Two incidents were more significant than the others. At one point during the proceedings, the court had to instruct defendant to turn on his video. Once he did so, it was clear he was at work (he admitted as much), and his counsel had to instruct him to stop walking around while the proceeding was ongoing. On another occasion, when the trial court was stating its ruling on the record, defense counsel "dropped" from the proceeding, resulting in his missing a portion of the ruling and having to ask the court to repeat itself. Additionally, defendant spoke out of turn at least 15 times, had to be told to turn on his video twice, and was asked by the prosecutor to stop yelling at someone (though the audio was off). Though these incidents were not the fault of the trial court or counsel, they exemplify why, post-pandemic, evidentiary hearings (and trials) need to be conducted in the courtrooms across this state.
The outbursts included (amongst others) defendant making statements during Officer Esposito's testimony, interjecting during arguments on objections from counsel, and interposing his views on matters while the proceedings were ongoing. Outbursts can also occur in a courtroom, but a court has more control over the participants when they are present before the court (and its bailiffs).
As many courts have recently acknowledged, the use of video conferencing technology like that offered by Zoom Technologies Inc or Microsoft Corporation (the "Teams" platform) during the pandemic allowed courts to continue performing many of their constitutional duties. See AO 2020-08, 507 Mich. xci, cvii ("Video court served its purpose during the state of emergency, but this emergency has, for the most part, passed.")(Zahra, J., dissenting); In re RD, 2021 Ill.App. (1st) 201411; ____NE3d___ (2021), at *3 ("Significantly, Zoom was used to conduct these hearings only because Illinois was in the grips of the COVID-19 pandemic and, at the time, a vaccine was not available. Given the extraordinary challenges presented by the pandemic, Zoom hearings enabled courts to conduct business while keeping people safe from a deadly virus that spreads easily through in-person interactions."). For example, thanks to our spectacular staff at the Court of Appeals, this Court barely missed a beat in transitioning to remote oral arguments, allowing the Court to continue with oral arguments while keeping up on our case load, and in fact significantly reducing our backlog.
For obvious reasons, it was much easier for appellate courts to remotely conduct business than it was for trial courts.
But it is equally true that despite the great flexibility these technologies provided to courts to continue many operations during the pandemic, the benefits lost by not having the parties and witnesses appear in an actual courtroom were significant. See e.g., My Own Meals Inc v PurFoods, LLC, ____F Supp 3d____, ____(ND Ill. 2022); slip op at 5 ("And while Zoom and Teams got the legal world through the toughest times of the pandemic, it was not without glitches and tribulations- and never was intended to supplant basic constitutional considerations or requirements-or even preferences about live proceedings."). And now that our state is essentially back to our normal manner of living, it is important to recognize the need to return to the courtroom to conduct matters such as an evidentiary hearing on a motion to suppress.
There is little doubt that remote technology will still be an efficient means for conducting many routine matters like status conferences, routine traffic tickets, and other more minor matters that do not require the introduction of evidence or significant interchange on the merits between judge and counsel. From the litigant and attorney perspective, it's simply not economical to expend the additional time and resources to go to court for these types of routine matters, and the technologies allow those matters (should the trial court and parties agree) to be successfully done remotely. But when it comes to evidentiary matters, "[r]emote proceedings, despite the greatly improved and available technologies, simply do not compare to face-to-face interaction." People v Anderson, ____Mich App____, ____; ____N.W.2d (2022) (Docket No. 354860); slip op at 7. As one judge stated," 'live testimony [remains] markedly preferable to remote testimony.'" Roh v Schultz, unpublished opinion of the U.S. District Court for the District of Columbia, issued June 14, 2022, at *6, quoting Federal Trade Commission v Illumina, Inc, unpublished opinion of the U.S. District Court for the District of Columbia, issued April 20, 2021, at *3.
As the Illumina court recognized, "the utility of live proceedings is not limited to aiding in the evaluation of witness credibility-though that is one important benefit, see Beall v Edwards Lifesciences LLC, 310 F.Supp.3d 97, 106 (D DC, 2018); Pyrocap Int'l Corp v Ford Motor Co, 259 F.Supp.2d 92, 98 (D DC, 2003). Among other advantages, live proceedings permit more natural dialogue among hearing participants, allow participants to handle any physical evidence, and avoid the technical difficulties that can sometimes trip up virtual proceedings." Illumina, F.Supp. at; slip op at *3. In my view, remote proceedings do not work nearly as well for certain non-evidentiary matters, such as arguments on dispositive motions or appellate arguments, since despite the wonderful technological advances, nothing compares to the in-person exchange between counsel and the court. It is the superior way to conduct meaningful arguments. But because the issue here arose from an evidentiary hearing, that will be the focus.
In his concurrence in Vazquez Diaz v Commonwealth, 487 Mass. 336, 357; 167 NE3d 822 (2021) (Kafker, J., concurring), Massachusetts Supreme Judicial Council Associate Justice Scott Kafker aptly summarized the resulting deficiencies from remote hearings:
During the COVID-19 pandemic, the judicial system has been required to rely on virtual proceedings to continue to function effectively. In particular, the judicial system has placed heavy reliance on video conferencing technology, such as that of Zoom Video Communications, Inc. (Zoom). We have also discovered the advantages of virtual proceedings in certain important respects, particularly in terms of safety and convenience. That being said, a virtual evidentiary hearing on Zoom, or similar technologies, is not the same as an in-person evidentiary proceeding. The evolving empirical evidence indicates a virtual hearing may alter our evaluation of demeanor evidence, diminish the solemnity of the legal process, and affect our ability to use emotional intelligence, thereby subtly influencing our assessment of other participants.
Aside from the detrimental impacts remote proceedings have on credibility assessments, interruptions to the proceedings, etc., remote proceedings also have a significant impact on the solemnity of the proceedings, i.e., how the parties respect the proceedings and the overall seriousness given to the matter before the court. Our Court has repeatedly emphasized this point, see Anderson,____ Mich.App. at, ____slip op at 7, and People v Heller, 316 Mich.App. 314, 318; 891 N.W.2d 541 (2016), as have Justices Viviano and Bernstein:
The overemphasis on remote hearings reflected in today's court rule amendments risks-in a very real way-depriving people of their day in court. Even prior to the COVID-19 pandemic, research revealed concerns about the impacts caused by holding proceedings remotely. Remote proceedings may 'make it more difficult for the judge to both embody and maintain the authority of the court,' and appearance via video may not 'adequately convey the authority of the
court,' which can affect the solemnity of the proceedings. Well-settled caselaw holds that, in the context of criminal trials, in-person testimony can be essential to a defendant's constitutional rights. Even commentators who support expansion of videoconferencing technologies in judicial proceedings advise proceeding with caution before adopting radical changes that risk impinging on litigants' rights and access to justice more broadly. Indeed, the benefits of remote proceedings are often more apparent than their costs, but there is a risk that judges and judicial policymakers may 'face pressure to overemphasize values such as speed, cost savings, and reduced workloads at the cost of fair proceedings.' [AO 2020-08 at cx-cxii (Viviano and Bernstein, JJ., concurring in part and dissenting in part) (footnotes omitted)]
Justice Kafker recognized this point as well, highlighting how remote proceedings detract from the dignity of the proceedings:
When a person physically comes to court, he or she is immediately aware of the gravity of proceedings felt in an actual court room. The transition to a virtual court room is different. There, the participants experience court in the same way in which they experience much of their everyday life, usually from the same location in which they live, work, or socialize -- or, as in this case, from the jail in which the defendant is held in custody. See Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 Tul L Rev 1089, 1134-1135 (2004). Seeing other participants on screen in similar environments both deemphasizes the formal nature of court and diminishes the sense that they are engaging in a unified proceeding. See Bandes & Feigenson, Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom, 68 Buff L Rev 1275, 1322-1323 (2020). While this has often been necessary during the COVID-19 pandemic, judges must be conscious that when so many communications take place through video conferencing, court proceedings risk becoming just another video call, rather than an occasion the solemnity of which is reinforced by the environment in which it takes place. [Diaz, 487 Mass. at 363-364 (Kafker, J., concurring).]
The suppression hearing highlights the problems, noted above, that are inherent in remote proceedings. Given our recent experience at the Court of Appeals, where the vast majority of counsel appear for arguments, it's reasonable to assume that virtually (no pun intended) all evidentiary hearings and trials will be held in courtrooms, as is being done today in most circuit courts. Absent a set-back with the current situation-or, God forbid, a new pandemic-I trust that the lawyers and judges of our great state will take care of business on these types of matters where they must-the courtroom.
Christopher M. Murray
Borrello, J. (dissenting).
As the majority acknowledges, "[t]he touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" Pennsylvania v Mimms, 434 U.S. 106, 108-109; 98 S.Ct. 330; 54 L.Ed.2d 331 (1977), quoting Terry v Ohio, 392 U.S. 1, 19; 88 S.Ct. 1868; 20 L.Ed.2d 889 (1968). Thus, when deciding a search and seizure issue, the focus must, at least initially, be on the reasonableness of the police actions. As stated by the Supreme Court, reasonableness is the "central inquiry under the Fourth Amendment." Terry, 392 U.S. at 19.
Here, my reading of the majority opinion leads me to conclude that it is constitutionally permissible for a police officer, in their sole discretion, to prolong a traffic stop until the officer takes advantage of the opportunity to order the occupants out of the vehicle. Not only is the result conjured up by the majority contrary to Fourth Amendment precedents, see, infra, such a result is unreasonable. Simply stated, Mimms does not bestow on police officers the authority to prolong a traffic stop for as long as they desire for the sole purpose ofordering occupants out of the motor vehicle. Clearly, such a holding runs afoul of the Fourth Amendment's "reasonable" limitations on the scope of a seizure. See id. at 17 ("And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation."). See also id. at 19-20 ("And in determining whether the seizure and search were 'unreasonable' our inquiry is a dual one-whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.") (emphasis added). "The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances." Id. at 21. However, the majority's approach essentially insulates a police officer's conduct in these circumstances from any judicial review and improperly requires absolute deference to the police officer's own discretion in judging the constitutionality of the officer's conduct. Because I disagree with their analysis and with the majority's interpretation of Rodriguez v United States, 575 U.S. 348; 135 S.Ct. 1609; 191 L.Ed.2d 492 (2015), I respectfully dissent.
Officer Jacob Esposito testified that after he stopped the vehicle at issue in this case for having an unlit license plate. Esposito approached the vehicle and requested that the driver produce his license, vehicle registration, and verification of insurance. According to his testimony, Esposito was the sole officer on the scene when he initiated the traffic stop. After all of the requested documents were presented to him, Esposito went to his police vehicle and verified the validity of the driver's license and that the vehicle was properly registered and insured. Esposito also verified that the driver did not have any active warrants. During this time while Esposito was in his police vehicle, the driver was still sitting in his own vehicle with defendant. Defendant was sitting in the front passenger seat. Esposito wrote the driver a traffic citation for the unlit license plate light.
Esposito testified that when he returned to the driver's vehicle to return the documents and deliver the citation, the driver appeared "nervous…[j]ust breathing heavy, kind of very uneasy, kind of, like, fidgety, shifty." Based on the driver's nervousness, Esposito ordered him out of the vehicle so he could "investigate the nervousness, why he was so nervous and fidgety." Next, Esposito observed defendant make a "furtive gesture towards the bottom of the seat or under the seat" that caused Esposito to redirect his attention to defendant and speak to him. Esposito testified that defendant "seemed a little nervous" and that he ordered defendant out of the vehicle. At some point, according to Esposito's testimony, another officer arrived on the scene in a separate police vehicle to stand with the driver while Esposito "went to contact the defendant." Esposito further indicated that he allowed defendant to remain seated in the vehicle for some amount of time after defendant made the "furtive gesture" before ordering defendant out of the vehicle, but Esposito could not recall how long this interval lasted. The events that unfolded as defendant got out of the vehicle led to the discovery of illegal substances.
Neither party disputes the legality of Esposito's initial decision to initiate the traffic stop based on the vehicle's unlit license plate, thereby commencing the seizure of the vehicle's occupants. Arizona v Johnson, 555 U.S. 323, 327; 129 S.Ct. 781; 172 L.Ed.2d 694 (2009) (stating that "a police officer effectively seizes 'everyone in the vehicle' for the duration of a traffic stop but that doing so constitutes a "lawful investigatory stop" if the officer is inquiring into a "vehicular violation"). However, "[i]t is . . . clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution." Illinois v Caballes, 543 U.S. 405, 407; 125 S.Ct. 834; 160 L.Ed.2d 842 (2005). Specifically, a "seizure that is justified solely by the interest in issuing a . . . ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Id. The United States Supreme Court has explained:
A seizure for a traffic violation justifies a police investigation of that violation. "[A] relatively brief encounter," a routine traffic stop is "more analogous to a so-called 'Terry stop' . . . than to a formal arrest." Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's "mission"-to address the traffic violation that warranted the stop, and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may "last no longer than is necessary to effectuate th[at] purpose." Authority for the seizure thus ends when tasks tied to the traffic infraction are-or reasonably should have been-completed. [Rodriguez, 575 U.S. at 354 (alterations and ellipsis in original; citations omitted; emphasis added).]
In accordance with these principles, an officer conducting a traffic stop may detain the vehicle long enough to run a Law Enforcement Information Network ("LIEN") check, People v Davis, 250 Mich.App. 357, 364-368; 649 N.W.2d 94 (2002), and to ask reasonable questions concerning the alleged traffic violation "and its context for a reasonable period," People v Williams, 472 Mich. 308, 315; 696 N.W.2d 636 (2005). "[W]hen 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. However, although an officer "may conduct certain unrelated checks during an otherwise lawful traffic stop," the officer "may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Rodriguez, 575 U.S. at 355 (emphasis added).
The majority erroneously relies on Mimms and its progeny to support its conclusion that "Officer Esposito did not violate the Fourth Amendment by ordering the driver and defendant out of the vehicle." In Mimms, 403 U.S. at 107, police officers stopped a vehicle with an expired license plate for purposes of issuing a traffic summons. Upon approaching the vehicle, one of the officers asked the respondent to get out of the car and produce his license and other documents. Id. As the respondent exited, the officer noticed a "large bulge" under the respondent's clothing that was subsequently discovered to be a firearm. Id. After the respondent's motion to suppress was denied, he was convicted of carrying a concealed deadly weapon and unlawfully carrying a firearm without a license. Id. The Supreme Court of Pennsylvania reversed the conviction on the ground that the "officer's order to respondent to get out of the car was an impermissible seizure" that violated the Fourth and Fourteenth Amendments "because the officer could not point to objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety." Id. at 107-108 (quotation marks and citation omitted). In reversing the Pennsylvania Supreme Court, the United States Supreme Court held that "once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures." Id. at 111 n 6, 112.
Admittedly, the United States Supreme Court has explained that "Mimms itself drew a bright line" and that "the principles that underlay that decision apply to passengers as well." Maryland v Wilson, 519 U.S. 408, 413 n 1; 117 S.Ct. 882; 137 L.Ed.2d 41 (1997). In Wilson, the Supreme Court held that "a police officer may as a matter of course" order the driver and any passengers in "a lawfully stopped car" to exit the vehicle. Id. at 410.
Here, however, Esposito did not order the driver or defendant out of the vehicle "as a matter of course" at the outset of the traffic stop or while he was carrying out his mission of investigating the alleged traffic offense, even though he could have done so. Unlike the officer in Mimms, Esposito also did not claim that it was his "practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation." Mimms, 434 U.S. at 110. Even though the rule set forth in Mimms does not require officers to have such a standard practice or any particularized suspicion of additional unlawful activity to justify ordering occupants to exit a vehicle during a lawful traffic stop, see id. at 109-110, 111 n 6; Wilson, 519 U.S. at 410, it does not follow that there is no constitutional limit on an officer's authority to permissibly order an occupant to exit a vehicle after a legitimately instituted traffic stop has concluded.
Here, as the trial court correctly noted, prior to Esposito ordering the driver and then defendant out of the motor vehicle. Additionally, Esposito ran computer checks to ensure that there were no outstanding warrants for the driver and that the driver's license, registration, and insurance were all valid. Hence, by this juncture, Esposito had completed his investigation and his seizure of the motor vehicle and its occupants was no longer based on a reasonable suspicion that criminal activity was afoot. It was only after Esposito wrote a citation for the driver, returned to the vehicle to deliver the citation and return the driver's documents, that he then decided to ask the driver to get out based on his appearance of nervousness. Hence, the question then arises as to whether the trial court correctly determined that Esposito, after writing a citation and verifying the driver's licensure, vehicle registration, and lack of any outstanding warrants, was justified in prolonging the stop. See Rodriguez, 575 U.S. at 354. Principally, did the observed behavior of the driver constitute reasonable suspicion such that the stop could be prolonged. See id. at 355.
In Caballes, 543 U.S. at 407, the United States Supreme Court addressed the question "[w]hether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop." (Quotation marks and citation omitted.) In that case, the respondent was stopped for speeding and the Court proceeded on the assumption that the police did not have any other information about the respondent. Id. at 406-407. While one police officer was in the process of writing a ticket, another officer walked a narcotics-detection dog around the outside of the respondent's car. Id. at 406. After the dog alerted at the trunk, the officers searched the trunk and found marijuana. Id. The United States Supreme Court accepted the lower court's factual findings from the record evidence "that the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop." Id. at 408. On that basis, the Caballes Court held that a "dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." Id. at 410.
My colleagues in the majority, rather than accepting the trial court's findings-which are amply supported by the record-that the entire duration of the stop was not justified solely by inquiries related to the mission of the traffic stop but was instead prolonged based on Esposito's observations of the driver's "nervousness," have essentially proceeded to make their own findings of fact that Esposito was still acting in the course of his traffic-offense-investigation mission.
Subsequently, in Rodriguez, 575 U.S. at 353, the United States Supreme Court questioned whether police "may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff." (Emphasis added.) The police officer in that case stopped a vehicle for unlawfully veering onto the shoulder of the highway. Id. at 351. The officer questioned the driver about the infraction and collected the driver's license, registration, and proof of insurance. Id. The officer conducted a records check in his patrol car and then returned to the detained vehicle where he asked the passenger for his driver's license and questioned the passenger about the occupants' travel itinerary. Id. The officer returned to his patrol car, completed a records check on the passenger, called for a second officer, and began writing a ticket for the driver. Id. The officer went back to the detained vehicle, issued the written warning, returned the driver's and passenger's documents, and then asked for permission to walk his dog around the vehicle. Id. at 352. The driver declined, and the officer instructed the driver to exit the vehicle and stand by the patrol car to wait for the second officer. Id. The officer's dog subsequently alerted to the presence of drugs, which were in turn located after a search of the vehicle. Id.
The United States Supreme Court held "that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures" and a "seizure justified only by a police-observed traffic violation, therefore, become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission of issuing a ticket for the violation." Id. at 350-351 (quotation marks and citation omitted; alterations in original; emphasis added). While an officer "may conduct certain unrelated checks during an otherwise lawful traffic stop . . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Id. at 355.
The distinction between the respective outcomes in Caballes and Rodriguez illustrates the crux of the issue in the instant case and the point on which I disagree with my colleagues. In Caballes and Rodriguez, the issue was not whether the officers could conduct a dog sniff of the vehicle-they generally could without violating the Constitution-but instead involved questions of when and on what basis a dog sniff could be permissible-i.e., officers could not conduct what would have otherwise been a permissible dog sniff if the mission of investigating an ordinary traffic offense should already have reasonably been completed before they conducted the dog sniff unless there was reasonable suspicion to justify extending the detention of the vehicle's occupants. Reading Mimms, Wilson, Caballes, and Rodriguez together yields the general principle that an officer does not need a specific reason to order an occupant out of a vehicle during a lawful traffic stop that is reasonable in scope and duration relative to the traffic-enforcement mission of the stop, but there must be the requisite reasonable suspicion to justify prolonging the stop after the point that it reasonably should have been over in order for an officer to then permissibly require the occupants to exit the vehicle. In short, application of reasonableness to our inquiry requires that the permissible authority to order the occupants out of the vehicle as a matter of course expires when the traffic stop should have reasonably been terminated.
My colleagues propose that the stop should not reasonably conclude until after the officers takes advantage of the opportunity to order the occupants out of the car as a matter of course. They are wrong. The majority appears to justify this position by citing Johnson, 555 U.S. at 333 in support of the statement, "It is equally well-settled that a traffic stop is not over until the officer completes his investigation and releases the driver to leave." While true from a practical standpoint, the Supreme Court in Johnson unequivocally did not imply that all traffic stops are constitutional in scope and duration from the time the vehicle is pulled over until the officer releases the driver. Rather, the Johnson Court's statement of the relevant legal framework is consistent with body of caselaw that I have already discussed:
A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. [Id. (citation omitted; emphasis added).]
Here, the trial court held that the stop of the motor vehicle went beyond what was reasonable and that the stop should have been terminated once Esposito knew that the driver had the proper license, was registered, insured and had no warrants-all of the relevant information which formed the basis for the stop-and had returned to the vehicle to issue the citation (which was already written) and return the driver's documents. The trial court's conclusion is supported both legally and factually. Thus, the question next becomes whether there was reasonable suspicion to justify prolonging the stop.
It was Esposito's contention that the stop could be prolonged because the driver looked nervous and defendant made a furtive movement. However, both of these observations occurred after the trial court concluded the stop should have been terminated. Additionally, the trial court held that neither basis, without any additional evidence, constituted reasonable suspicion to prolong the stop. Hence, the trial court held, by the time Esposito searched the motor vehicle, the constitutional violation had occurred.
The prosecutor, and my colleagues in the majority, disagree with the trial court's holding that Esposito's observation of the driver appearing "nervous" was insufficient to constitute reasonable suspicion to prolong the stop. The trial court held that being nervous did not constitute reasonable suspicion because there exists a certain amount of nervousness in any traffic stop, regardless of whether criminal behavior is afoot. It seems a matter of commonsense, and self-evident to me as well, that there is a certain level of nervousness associated with a police officer stopping a vehicle and asking the driver for their license, registration and proof of insurance. Hence it is difficult for me to conclude that nervousness alone, in the manner of "fidgeting," is sufficient to constitute anything more than a hunch when determining whether an officer has provided a legal basis for a finding of reasonable suspicion. "[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior." People v Oliver, 464 Mich. 184, 197; 627 N.W.2d 297 (2001) (quotation marks and citation omitted). Reasonable suspicion to detain an individual "entails something more than an inchoate or unparticularized suspicion or 'hunch,' but less than the level of suspicion required for probable cause." People v Champion, 452 Mich. 92, 98; 549 N.W.2d 849 (1996) (citation omitted). To determine whether an officer acted reasonably, "due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Terry, 392 U.S. at 27 (citation omitted).
Additionally, the prosecution argues, Esposito testified that while he was watching the driver act "nervous" he saw defendant make a furtive movement. However, Esposito never saw defendant grab anything, never saw the presence of a weapon or narcotics until after Esposito told defendant to exit the vehicle. Our Supreme Court has held that furtive gestures alone are insufficient to establish a reasonable suspicion of criminal activity. See People v Shabaz, 424 Mich. 42, 61; 378 N.W.2d 451 (1985). ("Because the police could only guess about what defendant was seeking to hide, their speculation did not provide a particularized suspicion of possessory wrongdoing, but only a generalized one.").
And, as previously stated, the presence of nervousness is of limited value. While the United States Supreme Court has recognized "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion," Illinois v Wardlow, 528 U.S. 119, 124; 120 S.Ct. 673; 145 L.Ed.2d 570 (2000), it is only that-a factor. Indeed, other courts have stated nervousness "is an unreliable indicator, especially in the context of a traffic stop . . . [because] [m]any citizens become nervous during a traffic stop, even when they have nothing to hide or fear." United States v Richardson, 385 F.3d 625, 630-631 (CA 6, 2004); see also United States v Simpson, 609 F.3d 1140, 1147 (CA 10, 2010) (stating that "[nervousness is of limited value in assessing reasonable suspicion" because it is a common behavior, even for law-abiding citizens, "when confronted by a law enforcement officer" and "it is natural for a motorist to become more agitated as a stop is prolonged and particularly when the officer seems skeptical or suspicious"). Rather, "[a]n officer testifying that he inferred on the basis of his experience and training is obliged to articulate how the behavior that he observed suggested, in light of his experience and training, an inference of criminal activity." People v LoCicero, 453 Mich. 496, 505-506; 556 N.W.2d 498 (1996).
Other than reporting defendant's alleged "furtive" gesture and that he appeared "a little nervous," Esposito did not sufficiently articulate how, based on his training and experience, these behaviors lead him to believe defendant or the driver were engaged in criminal activity.Thus, the trial court did not err in concluding it was an unreasonable seizure because there is evidence showing the original purpose for the stop was resolved, or reasonably should have been resolved, and there is no evidence in the record demonstrating new facts which give rise to reasonable suspicion of additional criminal activity. Consequently, it was also not error for the trial court to suppress the evidence under the exclusionary rule because the trial court determined the evidence flowed from an unreasonable seizure. Because the trial court did not err in suppressing the evidence on the basis of an unreasonable seizure, it is unnecessary to consider the prosecution's additional arguments to the contrary, because they are premised on the supposition that Esposito's seizure of defendant was reasonable.Accordingly, I would affirm the trial court.
Esposito testified:
[The prosecutor]: So based off your training and experience, did that concern you that you were observing furtive gestures from the passenger in the vehicle, the defendant?
A. It did.
[The prosecutor]: And why is that?
A. I wasn't sure what he was doing, what he was hiding, retrieving, just I wasn't sure.
[The prosecutor]: And did you make any other observations about his behavior at any point?
A. I mean, he seemed a little nervous. I don't entirely recall exactly his demeanor.
I note that contrary to the prosecution's argument, defendant has standing to challenge the constitutionality of the traffic stop because passengers in vehicles are "seized, just as the driver is, 'from the moment [a car stopped by the police comes] to a halt on the side of the road.'" Johnson, 555 U.S. at 332 (alteration in original), quoting Brendlin v California, 551 U.S. 249, 263; 127 S.Ct. 2400; 168 L.Ed.2d 132 (2007).
Stephen L. Borrello