PEOPLE OF MI V JOEY DUANE OLIVER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 23, 1998
Plaintiff-Appellee,
v
Nos. 184741;199968
Jackson Circuit Court
LC No. 94-071022-FC
JOEY DUANE OLIVER,
Defendant-Appellant.
Before: Markey, P.J. and Michael J. Kelly and Whitbeck, JJ.
PER CURIAM.
Defendant appeals by right from his conviction by guilty plea of conspiracy to commit armed
robbery, MCL 750.157a; MSA 28.354(1); armed robbery, MCL 750.529; MSA 28.797; and
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b; MSA
28.424(2). He also pled to being a second felony habitual offender, MCL 769.10; MSA 28.1082.
This Court previously granted a motion to remand in connection with sentencing issues.1 After that
remand, the trial court resentenced defendant to two years’ imprisonment for felony-firearm, to be
followed by concurrent terms of twenty-three to sixty years on the conspiracy conviction and twenty to
sixty years on the armed robbery conviction.
In the late morning of December 1, 1994, it was reported that a robbery had taken place at a
location of Republic Bank and that the suspects were two black males. Shortly thereafter, police
officers stopped a vehicle occupied by four black males including defendant, Casual Unique Banks
(“Banks”) and the driver Anthony Taylor (“Taylor”). There was undisputed testimony that the vehicle
was owned by Taylor. A police officer who performed a “pat down” search of Banks found a large
bundle of money in one of his coat pockets, a bank wrapper on one bundle of money and a Michigan
identification card for defendant. After defendant was taken to a police station, a police officer found a
wad of money in defendant’s coat pocket. Defendant thereafter made self-incriminating statements to
the police.
Defendant moved to suppress the evidence found in the search of Banks’ person and
defendant’s own person, as well as his self-incriminating statements, as the fruit of an illegal search. He
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maintained that the traffic stop was improper because it was without sufficient justification.2 The trial
court concluded that the traffic stop was supported by reasonable suspicion and, accordingly, denied
the motion to suppress. Thereafter, defendant pled guilty to the charged offenses, with the condition
that defendant reserved the right to appeal from the trial court’s ruling on the suppression motion.
I
A trial court’s findings of fact after a suppression hearing will not be disturbed unless they are
clearly erroneous. People v LoCicero, 453 Mich 496, 500; 556 NW2d 498 (1996). However, the
trial court’s legal conclusions are subject to de novo review. People v Medlyn, 215 Mich App 338,
340; 544 NW2d 759 (1996).
The initial question is whether defendant had standing to challenge the seizure of the evidence
found on Banks’ person. We agree with the prosecution that defendant had no standing to seek
suppression of the evidence found on Banks’ person as the product of an illegal search or seizure. The
constitutional right to be free of unreasonable searches and seizures is personal, and a defendant must
personally have a reasonable expectation of privacy in the subject of a search and seizure to challenge
its validity. See People v Wood, 447 Mich 80; 523 NW2d 477 (1994); People v Lombardo, 216
Mich App 500, 504-505; 549 NW2d 596 (1996). When a passenger in an automobile that is the
subject of a traffic stop does not have a property or possessory interest in the vehicle or an interest in
any property that is seized, that passenger does not have standing to challenge the search of an area of
the vehicle unless that passenger has a reasonable expectation of privacy in the area that was searched.
Rakas v Illinois, 439 US 128; 130, 148; 99 S Ct 421; 58 L Ed 2d 387 (1978); People v
Armendarez, 188 Mich App 61, 71; 468 NW2d 893 (1991).
It follows that defendant, who had no property or possessory interest in Taylor’s automobile,
lacked standing to challenge the search of Banks’ person that followed the traffic stop.3 Thus,
regardless of the soundness of the trial court’s rationale in concluding that the traffic stop was justified
by reasonable suspicion, the trial court properly declined to suppress the evidence found on Banks’
person from being used against defendant.
However, defendant plainly had standing to challenge the admission of the incriminating
evidence found on his own person. Nevertheless, once the evidence seized from Banks’ person was
discovered, it is beyond reasonable dispute that the police had probable cause to arrest defendant.
Defendant was in a vehicle with Banks shortly after the robbery. Defendant, Banks and Taylor were
close by the location of the bank that had been robbed. People v Champion, 452 Mich 92, 115; 549
NW2d 849 (1996) (probable cause to arrest exists where facts and circumstances in officer’s
knowledge and of which he has reasonably trustworthy information are sufficient in themselves to
warrant a person of reasonable caution in the belief that an offense has been or is being committed).
Defendant was then arrested and taken to the police station. It was only after being taken to the police
station that defendant was searched and that incriminating evidence, a wad of money, was found on his
person. Because there was probable cause to support defendant’s arrest, the arrest was lawful.
Therefore, the search of defendant’s person was justified as a search incident to arrest. Id. Similarly, in
light of defendant’s lawful arrest, there was no reason for suppression of any self-incriminating
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statements that he made to the police. In sum, the trial court reached the right result by denying the
suppression motion. See People v Brake, 208 Mich App 233, 242 n 2; 527 NW2d 56 (1994).
II
Defendant argues that the trial court erred by denying his motion to withdraw his guilty plea.
We review a trial court’s ruling on a motion to withdraw a guilty plea before sentencing for an abuse of
discretion. People v Spencer, 192 Mich App 146, 149-150; 480 NW2d 308 (1991). To support
withdrawal of a guilty plea before sentencing, a defendant must show that withdrawal of the plea is
supported by reasons “based on the interests of justice.” Id. at 151. In essence, defendant asserts that
he was mentally impaired and that he incorrectly believed that he had to plead g
uilty to preserve his
appeal from the evidentiary ruling discussed in the preceding section of this opinion. During the hearing
in which defendant entered his guilty plea, the trial court stated that defendant maintained his right to
appeal from the decision on the suppression motion even though he was entering a guilty plea. The trial
court also explained to defendant the nature and consequences of a guilty plea. Thus, it was clear that
defendant would have had the right to appeal the decision on the suppression motion had defendant
been convicted after a trial. We find that the trial court did not abuse its discretion by denying
defendant’s motion to withdraw his guilty plea.
III
Defendant argues that his sentences of twenty-three to sixty years for conspiracy to commit
armed robbery/habitual second and twenty to sixty years for armed robbery/habitual second were
disproportionately severe. Sentences imposed on habitual offenders are reviewed for an abuse of
discretion. People v Hansford (After Remand), 454 Mich 320, 323-324; 562 NW2d 460 (1997).
Defendant’s arguments in his brief regarding this issue are predicated on comparing defendant’s
sentences with the recommendation of the sentencing guidelines in this case. However, it is
inappropriate for this Court to give any consideration to the sentencing guidelines in reviewing an
habitual offender sentence. People v Gatewood, 450 Mich 1025; 546 NW2d 252 (1996); People v
Gatewood (On Remand), 216 Mich App 559, 560; 550 NW2d 265 (1996).
In any event, we do not consider defendant’s sentences to be disproportionate. In its
comments preceding the imposition of sentence, the trial court stated that it considered the factors of
punishment, rehabilitation, deterrence and the protection of society. Cf. People v Snow, 386 Mich
586, 592; 194 NW2d 314 (1972) (basic considerations in sentencing include reformation of offender,
protection of society, disciplining wrongdoer and deterrence of others from committing like offenses).
The trial court noted the circumstances of the offenses as well as defendant’s extensive criminal and
juvenile offense record. We conclude that the trial court did not abuse its discretion by imposing the
severe sentences at issue inasmuch as defendant’s crimes “in the context of his previous felon[y],
evidence[] that the defendant has an inability to conform his conduct to the laws of society.” Hansford,
supra at 326.
Affirmed.
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/s/ Jane E. Markey
/s/ Michael J. Kelly
/s/ William C. Whitbeck
1
Accordingly, the sentencing issues raised in defendant’s initial appeal, Docket No. 184741, are now
moot.
2
Police officers may make a valid investigatory stop if they possess “reasonable suspicion” that crime is
afoot. People v Champion, 452 Mich 92, 98; 549 NW2d 849 (1996). Although this does not
require suspicion rising to the level of probable cause, it entails more than an inchoate or unparticularized
suspicion and must have a particularized and objective basis. Id. at 98-99.
3
Clearly, defendant lacked any reasonable expectation of privacy in Banks’ person. We note that
another panel of this Court, in considering Banks’ appeal from his convictions in connection with the
same robbery concluded that the traffic stop was supported by reasonable suspicion. People v Banks,
unpublished per curiam opinion of the Court of Appeals, issued March 7, 1997 (Docket No. 185855).
In light of our disposition of this issue, we need not express an opinion regarding whether the traffic stop
was supported by reasonable suspicion.
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