PEOPLE OF MI V MARK SCOTT VIANO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 3, 2002
Plaintiff-Appellant,
v
No. 231291
Oakland Circuit Court
LC No. 00-173412-FH
MARK SCOTT VIANO,
Defendant-Appellee.
Before: Jansen, P.J., and Holbrook, Jr., and Griffin, JJ.
GRIFFIN, J. (dissenting).
I respectfully dissent. I agree with the majority that defendant was validly stopped for the
purpose of issuing a ticket for the civil infraction of impeding traffic. Further, I agree that the
lower court clearly erred by suppressing the evidence on the basis that defendant was in custody
and therefore entitled to the Miranda1 warnings. On the sole issue that is raised in this appeal, I
join the majority’s holding that “it is clear that the roadside questioning of a motorist detained
pursuant to a routine traffic stop does not require Miranda warnings because the motorist is not
in custody for purposes of Miranda.”
Despite the incorrect reasoning of the lower court, my colleagues nonetheless affirm the
suppression of the evidence of cocaine on the grounds that “the police officer did not have
reasonable and articulable suspicion to conduct a patdown search of defendant or to question
defendant regarding whether he had any drugs on him.” However, these issues are not properly
before us because defendant did not raise or argue these questions in the lower court or on
appeal. People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994); People v Considine, 196
Mich App 160, 162; 492 NW2d 465 (1992). Further, because defendant never challenged the
legality of his Terry2 patdown search, the evidentiary record regarding this unpreserved issue is
not fully developed. Nonetheless, after considering these never argued and unpreserved issues in
light of the undeveloped record, I respectfully disagree with the majority’s Fourth3 and Fifth
Amendment analysis.
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
2
Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
3
Michigan’s constitutional guarantee against unreasonable searches and seizures (art 1, § 11) is
(continued…)
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Following a lawful stop, a police officer may patdown the suspect for weapons in the
interest of protecting the safety of the officer if there is a reason to believe that the suspect may
be armed. Adams v Williams, 407 US 143, 156; 92 S Ct 1921; 32 L Ed 2d 612 (1972); Terry,
supra; People v Champion, 452 Mich 92, 99; 549 NW2d 849 (1996). The purpose of the limited
search is not to discover evidence of a crime, but to allow the officer to pursue his investigation
in safety. Adams, supra.
In the present case, like Adams, the “stop and frisk” of defendant occurred in a “highcrime area.” Because of the “high concentration of drug activity and other criminal activity” in
the area where defendant was stopped, Hazel Park Police Officer Joseph Lowry testified that he
was concerned that defendant may have been armed and, therefore, in the interest of protecting
his personal safety conducted a Terry patdown search.4 In his brief on appeal, defendant does
not contest the validity of the Terry patdown and concedes “the officer did a patdown for his
safety.” In my view, the limited Terry patdown performed by Officer Lowry was reasonable and
not a violation of the Fourth Amendment as applied to the states by the Fourteenth Amendment.
Further, it was during the lawful patdown search of defendant that Officer Lowry felt a rock or
pebble-like object in defendant’s pocket. Thereafter, defendant consented to Officer Lowry
retrieving the object from his pocket. Under these circumstances, which include a valid patdown
search and a consensual seizure, suppression is not warranted under the Fourth Amendment.
(…continued)
not applicable because the motion to suppress regards a narcotic drug seized outside the curtilage
of a dwelling house. People v Custer, 465 Mich 319, 326, n 2; 630 NW2d 870 (2001) (opinion
by Markman, J.).
4
Officer Lowry testified, in pertinent part, as follows:
Q. Would you relate to the Court what happened in the course of your
stopping Mr. Viano on this case for the offense of impeding traffic?
A. I made contact with Mr. Viano, escorted him over out of traffic to a
safe, level portion of the roadway and then conducted a Terry patdown search for
weapons.
Q. And if you could explain to the Court the reason why you were
conducting a Terry patdown search on Mr. Viano at this time?
A. Well, officer’s safety primarily, but –
Q. And why was your safety a concern to you at that moment given your
contact with Mr. Viano?
A. Well, the area he was in.
Q. And by the area where your safety, where you believed your safety
was in jeopardy, what about that area again?
A. Well, high concentration of drug activity and other criminal activity.
-2-
Also, the Fifth Amendment does not mandate suppression because defendant was not in
custody and Miranda warnings were not required. Accordingly, the officer was entitled to ask
any questions that defendant voluntarily chose to answer. Florida v Bostick, 501 US 429; 111 S
Ct 2382; 115 L Ed 2d 389 (1991); People v Edwards, 158 Mich App 561; 405 NW2d 200
(1987).
As the United States Supreme Court explained in Bostick, supra at 434-435:
Since Terry, we have held repeatedly that mere police questioning does
not constitute a seizure. In Florida v Royer, 460 US 491; 103 S Ct 1319; 75 L Ed
2d 229 (1983) (plurality opinion), for example, we explained that “law
enforcement officers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public place, by asking him
if he is willing to answer some questions, by putting questions to him if the person
is willing to listen, or by offering in evidence in a criminal prosecution his
voluntary answers to such questions.” Id. at 497; 103 S Ct at 1324; see id. at 523,
n 3; 103 S Ct at 1338, n 3 (Rehnquist, J., dissenting).
. . . We have stated that even when officers have no basis for suspecting a
particular individual, they may generally ask questions of that individual, . . . ask
to examine the individual’s identification, . . . and request consent to search his or
her luggage . . . as long as the police do not convey a message that compliance
with their requests is required. [Citations omitted.]
In my view, defendant’s voluntary answer to the officer’s question and consent to the
retrieval of the cocaine do not warrant the suppression of the evidence. In this regard, the
present case is substantially similar to People v Acoff, 220 Mich App 396-400; 559 NW2d 103
(1996), where our Court held:
On appeal, defendant concedes that he consented to the search, but argues
that his consent was involuntary because it was given while he was in police
custody and, therefore, was the product of coercion. We disagree. The evidence
indicates that after defendant got out of his car at the officers’ request, he was
patted down for weapons and asked if there were any drugs or weapons in the car.
Defendant then consented to a search of his car and was placed in the back of the
patrol car. On the basis of the foregoing, it is clear that at the time he consented
to the search, defendant was merely the subject of a Terry-type stop and frisk.
The United States Supreme Court has noted that Terry stops are not inherently
coercive in nature. Berkemer v McCarty, 468 US 420, 437-439; 104 S Ct 3138;
82 L Ed 2d 317 (1984). Therefore, we are not persuaded that defendant’s consent
here was involuntary.
I would reverse and remand for further proceedings consistent with this opinion.
/s/ Richard Allen Griffin
-3-
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