PEOPLE OF MI V JEROME ANTHONY MCKINLEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
January 14, 2003
9:05 a.m.
Plaintiff-Appellant,
v
No. 236310
Kalamazoo Circuit Court
LC No. 00-001111-AR
JEROME ANTHONY MCKINLEY,
Defendant-Appellee.
Updated Copy
March 28, 2003
Before: Wilder, P.J., and Bandstra and Hoekstra, JJ.
WILDER, P.J.
The prosecution appeals by leave granted orders of the 8th District Court and the
Kalamazoo Circuit Court dismissing the charge against defendant. We reverse and remand.
I
Defendant was driving his mother's dark green Chevrolet Caprice at approximately 1:30
a.m. on November 2, 1999, and was observed traveling north on I-94 by Officer Brett Stapert of
the Portage Police Department. For reasons not indicated on the record, Officer Stapert began
following the vehicle and ran the license plate of the vehicle through the Law Enforcement
Information Network (LEIN) system.1 When the LEIN system returned the name of the owner
of the vehicle, the officer recognized the owner as being defendant's mother. Officer Stapert was
also aware that there was an outstanding warrant for defendant's arrest on a charge of first-degree
criminal sexual conduct. The vehicle traveled beyond of the city limits, and Officer Stapert
advised his dispatcher to contact the Kalamazoo County Sheriff 's Department and request that
they send a deputy to defendant's mother's residence to further investigate.
Deputy Craig Schmaltz, a Kalamazoo County sheriff 's deputy assigned to traffic and
patrol duty, overheard Officer Stapert's conversation with the Portage city dispatcher and was
subsequently dispatched to defendant's mother's residence on Tulsa Street. The sheriff 's
department dispatcher advised Deputy Schmaltz of the registration information pertaining to the
1
Defendant has not asserted that the police officer inappropriately followed the vehicle
defendant was driving or that the officer should not have checked the license plate on the LEIN
system.
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license plate, including information that the vehicle was a green, mid-80s Chevrolet Caprice
four-door. The dispatcher also provided Deputy Schmaltz with defendant's name and date of
birth. Deputy Schmaltz obtained the Portage Police Department warrant entry through the
mobile data terminal in his vehicle and received a description of defendant as a "fairly large
black male in his early 20s."
As Deputy Schmaltz drove to the Tulsa Street residence he observed a vehicle matching
the dispatcher's description approach him. Deputy Schmaltz noted that the driver was a large
black male and, believing the driver to be defendant, he activated the emergency equipment on
the fully marked sheriff 's department vehicle he was driving and positioned his vehicle in such a
way as to partially block the driveway entrance and prevent the suspect vehicle from going onto
the driveway. Deputy Schmaltz then got out of his vehicle to initiate a traffic stop and
approached the suspect vehicle to make contact with defendant, who was on his cell phone at the
time. Deputy Schmaltz, who was also fully uniformed, arrived at defendant's vehicle and
overheard defendant say into his cell phone that "the police are out here."
Deputy Schmaltz, who had never seen defendant before, told defendant that he believed
defendant was wanted on an outstanding Portage warrant and asked for defendant's driver's
license. Defendant refused to produce his license or identify himself. Deputy Schmaltz then told
defendant he was under arrest for failure to produce his driver's license and ordered defendant to
get out of the vehicle. After arguing with Deputy Schmaltz for a few minutes, defendant told the
deputy that he was not going to give him his driver's license or otherwise identify himself and
that he was going to leave. Defendant maneuvered his vehicle around the sheriff 's department's
vehicle and left the scene.
Subsequently, Deputy Schmaltz reviewed a booking photograph of defendant and
positively identified defendant as the driver of the vehicle who refused to identify himself at the
Tulsa Street residence.
II
Defendant was arrested and charged with resisting and obstructing an officer while
making an arrest. A preliminary examination was held on this charge, and the district court
dismissed the charge without prejudice. The prosecution appealed. While the appeal was
pending, the prosecution withdrew its appeal and recharged defendant with resisting and
obstructing an officer during the investigation of an outstanding felony warrant. A preliminary
examination was held on this charge and the district court dismissed the case. The district court
found that the traffic stop of defendant was valid because the officer had reasonable suspicion to
believe that the driver of the stopped vehicle was defendant. Nevertheless, the district court
concluded that Deputy Schmaltz had not orally identified himself to defendant as a police officer
and had therefore failed to identify himself within the meaning of MCL 257.311. Accordingly,
the district court held that there was insufficient probable cause to bind defendant over for trial
on the resisting and obstructing charge because defendant had no obligation to produce his
driver's license at the officer's request and was free to leave the scene.
On appeal to the circuit court, the circuit court affirmed the dismissal of the charge. The
circuit court agreed with the district court's finding that, because of the deputy's failure to
identify himself to a police officer, there was insufficient probable cause to bind over for trial. In
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addition, the circuit court found that the initial traffic stop was invalid and that the dismissal of
the charge was appropriate on this basis as well. This Court granted the prosecution's application
for leave to appeal.
III
The circuit court reviews the entire record of the preliminary examination to determine
whether the district court's bindover decision constituted an abuse of discretion. People v
Orzame, 224 Mich App 551, 557; 570 NW2d 118 (1997). This Court reviews de novo the circuit
court's determination whether the district court abused its discretion. Id. An abuse of discretion
occurred if the result was so violative of fact and logic that it evidences a perversity of will, a
defiance of judgment, or an exercise of passion or bias. People v Hudson, 241 Mich App 268,
276; 615 NW2d 784 (2000).
Whether Deputy Schmaltz identified himself as a police officer in accordance with the
requirements of MCL 257.311 is a matter of statutory interpretation, a question of law that we
review de novo. Etefia v Credit Technologies, Inc, 245 Mich App 466, 469; 628 NW2d 577
(2001), citing Oakland Co Bd of Co Rd Comm'rs v Michigan Prop & Cas Guaranty Ass'n, 456
Mich 590, 610; 575 NW2d 751 (1998); In re S R, 229 Mich App 310, 314; 581 NW2d (1998).
We review de novo the application of the constitutional standard for lawful police stops to these
facts. People v LoCicero (After Remand), 453 Mich 496, 500-501; 556 NW2d 498 (1996).
IV
In reviewing the district court decision not to bind defendant over to the circuit court for
trial, the circuit court found that there was not a reasonable suspicion to justify the traffic stop
initiated by Deputy Schmaltz. We disagree. In People v Lewis, 251 Mich App 58, 69-70; 649
NW2d 792 (2002), we noted the following in determining whether there is reasonable suspicion
to support an investigatory stop:
In People v Champion, 452 Mich 92, 98-99; 549 NW2d 849 (1996), our
Supreme Court observed:
"Police officers may make a valid investigatory stop if they possess
'reasonable suspicion' that crime is afoot. Reasonable suspicion entails something
more than an inchoate or unparticularized suspicion or 'hunch,' but less than the
level of suspicion required for probable cause.
"A valid investigatory stop must be justified in its inception and must be
reasonably related in scope to the circumstances that justified interference by the
police with a person's security. Justification must be based on an objective
manifestation that the person stopped was or was about to be engaged in criminal
activity as judged by those versed in the field of law enforcement when viewed
under the totality of the circumstances. The detaining officer must have had a
particularized and objective basis for the suspicion of criminal activity."
[Citations omitted.]
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In [People v Oliver, 464 Mich 184, 192-196; 627 NW2d 297 (2001),] the
Supreme Court expanded on its prior discussion of "reasonable suspicion":
"[I]n determining whether the totality of the circumstances provide
reasonable suspicion to support an investigatory stop, those circumstances must
be viewed 'as understood and interpreted by law enforcement officers, not legal
scholars . . . .' Also, '[c]ommon sense and everyday life experiences predominate
over uncompromising standards.'
* * *
"'In analyzing the totality of the circumstances, the law enforcement
officers are permitted, if not required, to consider "the modes or patterns of
operation of certain kinds of lawbreakers. From [this] data, a trained officer
draws inferences and makes deductions—inferences and deductions that might
well elude an untrained person."'"[Citations omitted.]
From the record presented it is clear that Deputy Schmaltz had a reasonable suspicion
that defendant had committed a crime. While he did not know defendant, he was aware that
there was a felony warrant for defendant's arrest and had a description of defendant from the
warrant entry. He observed a vehicle matching the description of defendant's mother's vehicle
driving toward defendant's mother's home, and he observed that the driver appeared to match the
description of defendant from the warrant entry. Thus, Deputy Schmaltz clearly had a basis to
investigate whether the person he observed driving the dark green Chevrolet Caprice was
defendant. Thus, the circuit court erred in finding there was no basis for the traffic stop.
The lower courts also erred in finding that because he did not orally identify himself as a
police officer, Deputy Schmaltz had failed to identify himself within the meaning of MCL
257.311, and that, accordingly, defendant's failure to produce his driver's license at Deputy
Schmaltz' request did not constitute sufficient probable cause to bind defendant over to circuit
court for trial. In Macomb Co Prosecutor v Murphy, 464 Mich 149, 158; 627 NW2d 247 (2001),
our Supreme Court stated:
In considering a question of statutory construction, this Court begins by
examining the language of the statute. We read the statutory language in context
to determine whether ambiguity exists. If the language is unambiguous, judicial
construction is precluded. We enforce an unambiguous statute as written. Where
ambiguity exists, however, this Court seeks to effectuate the Legislature's intent
through a reasonable construction, considering the purpose of the statute and the
object sought to be accomplished. [Citations omitted.]
"Unless defined in the statute, every word or phrase of a statute should be accorded its plain and
ordinary meaning, taking into account the context in which the words are used," Phillips v
Jordan, 241 Mich App 17, 22 n 1; 614 NW2d 183 (2000), citing Western Michigan Univ Bd of
Control v Michigan, 455 Mich 531, 539; 565 NW2d 828 (1997), and if a term is not expressly
defined in the statute, it is permissible for this Court to consult dictionary definitions in order to
aid in construing the term "in accordance with [its] ordinary and generally accepted meaning[]."
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People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999), citing Oakland Co Bd, supra at
604. "[N]othing [should] be read into a statute that is not within the manifest intent of the
Legislature as [indicated by] the act itself," In re S R, supra at 314, and the language must be
applied as written, Camden v Kaufman, 240 Mich App 389, 394; 613 NW2d 335 (2000); Ahearn
v Bloomfield Charter Twp, 235 Mich App 486, 498; 597 NW2d 858 (1999).
MCL 257.311 provides that:
The licensee shall have his or her operator's or chauffeur's license, or the
receipt described in section 311a, in his or her immediate possession at all times
when operating a motor vehicle, and shall display the same upon demand of any
police officer, who shall identify himself or herself as such.
There is no dispute that Deputy Schmaltz was a police officer within the meaning of the statute,
as MCL 257.42, § 42 of the Michigan Vehicle Code, defines the term "police officer" to include
every sheriff 's deputy. However, both lower courts interpreted the word "identify" in the statute
to mean orally identify. This interpretation was erroneous. The term "identify" is not defined in
the statute or the vehicle code, thus, we consult the Random House Webster's College Dictionary
(2001), to construe the term "identify" to mean "to recognize or establish as being a particular
person or thing."
Deputy Schmaltz had activated the emergency equipment in his fully marked sheriff 's
department vehicle and approached defendant while he was fully uniformed as a Kalamazoo
County sheriff 's deputy. We hold that as a matter of law, such indicia are sufficient to satisfy the
statutory requirement that an officer identify himself as an officer when requesting a driver's
license from a person who was operating a motor vehicle. Clearly, these indicia establish instant
recognition that the person so attired is a police officer (rare indeed is the speeding motorist who,
seeing such indicia, does not immediately apply the brakes of his vehicle or take the foot off the
gas pedal).
We reject defendant's contention that the absence of language in MCL 257.311 requiring
that the officer requesting the license be in uniform or an official police vehicle, in contrast with
MCL 750.479a, demonstrates the Legislature's intention to require an officer to do more than be
in uniform or a official police vehicle to identify himself as a police officer. MCL 750.479a
prohibits a person who is operating a motor vehicle from using that motor vehicle to flee and
elude a police officer who is acting in the lawful performance of his duty, and applies only in
instances where the officer is in uniform and in an official police vehicle identified as such. The
fact that a person cannot be charged under this section for fleeing and eluding a non-uniformed
officer is consistent with the fact that the ability of an operator of a motor vehicle to identify a
police officer as a police officer is best facilitated through the indicia of the police uniform and
officially marked vehicle.2 Under MCL 257.311, however, not only can identification of the
officer occur by observation of the officer's uniform and fully marked vehicle, in the case of a
2
It is ironic in light of defendant's argument in this regard that the preliminary examination
testimony established that Deputy Schmaltz was in uniform and used his officially marked
vehicle to block defendant's entrance into his mother's driveway.
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non-uniformed police officer, identification can occur by use of a badge or oral or other
identification.
We also note that, setting aside our interpretation of the statutory language, the
preliminary examination testimony supports the conclusion that defendant was aware of the
deputy's identity as a police officer. The undisputed testimony was that Deputy Schmaltz
overheard defendant tell the person at the other end of his cell phone conversation that "the
police are out here."
V
The circuit court abused its discretion in finding that Deputy Schmaltz had no basis to
initiate a traffic stop of defendant and that the traffic stop was invalid. Furthermore, the district
court and circuit court each abused its discretion in finding that Deputy Schmaltz failed to
identify himself as a police officer within the meaning of MCL 257.311 and that there was
insufficient evidence to bind defendant over to circuit court for trial on the pending charge.
Accordingly, we reverse and remand to the district court for further proceedings consistent with
this opinion.
We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra
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