PEOPLE OF MI V MARK LAVELL LEONARD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 27, 2008
Plaintiff-Appellant,
v
No. 270638
Wayne Circuit Court
LC No. 05-009123-01
MARK LAVELL LEONARD,
Defendant-Appellee.
Before: Davis, P.J., and Schuette and Borrello, JJ.
DAVIS, J. (concurring).
The People of the State of Michigan appeal as of right an order dismissing defendant’s
charge of armed robbery, MCL 750.529, after suppressing lineup evidence and in-court
identification evidence. Judge Borrello has summarized the disparate conclusions reached by
each of us: we are unanimous in reversing the trial court’s suppression of the in-court
identification, and I concur with Judge Borrello in affirming the suppression of the lineup
identification, albeit for different reasons.
The facts of this case arise out of a wholly different robbery than the one charged in this
case. On the night of August 25, 2005, the two victims of the uncharged robbery flagged down a
Detroit Police officer at the corner of Schoolcraft and Virgil, which is located alongside I-96 in
Wayne County, just East of Redford. They told the officer that they had been robbed by “two
young black males wearing mostly black clothing” ten or fifteen minutes earlier, and the
perpetrators fled on foot into a nearby gated apartment complex by climbing over the complex’s
six-foot chain-link fence. The officer requested backup, describing the perpetrators as “three
black males” wearing “black shirt, pants, hat.” A number of officers responded to the only
vehicular gate to the complex and waited with their headlights, overhead lights, and spotlights
on, “watching to see if there was anybody that fit the description pulling out of the complex.”
Ten to fifteen minutes later, an older model Ford Explorer, occupied by three black males
wearing dark clothing – to the extent officers could detect – drove out of the complex. The
occupants acted suspiciously: an officer testified that people usually “gawk” at large groups of
police, but these individuals instead looked straight ahead. An officer pulled the vehicle over “to
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check it out, get some names;” he later explained that he “probably” would have stopped the
vehicle if it had contained two or four individuals. The officer asked the driver for his driver’s
license, proof of insurance, and registration. When the driver explained that he did not have a
license,1 the officer “pulled him out of the car,” ordered the passengers out, and searched all
three of them. The officer then conducted a search of the vehicle. He discovered two credit
cards under the back seat – the seat itself needed to be pulled up using a tag – where defendant
had been sitting. The credit cards were unrelated to the robbery the officer’s were investigating,
but another officer present recognized the name on the cards – Julian Jones – as belonging to
another individual who had been robbed a few days earlier. At that time, the three individuals
from the Explorer were placed in custody.
The police conducted a live lineup two days later. The lineup contained six men,
including defendant. A defense attorney was present and made no objections. Julian Jones
identified defendant after approximately thirty seconds. Defendant was charged with the robbery
of Jones. At defendant’s jury trial, Jones identified defendant in court as the perpetrator. The
jury hung, and defendant was not convicted. Defendant then moved to suppress evidence of the
lineup and of the in-court identifications made by Jones. Defendant did not explicitly move to
suppress the evidence of the credit cards themselves. However, he argued that the police lacked
reasonable suspicion to stop the Explorer and illegally detained him after the stop, making all
evidence flowing therefrom illegal. The trial court held a hearing and concluded that defendant
lacked standing to challenge the stop, but that defendant’s subsequent detention had been illegal.
On that basis, the trial court concluded that the proper remedy for this violation of defendant’s
right to be free from unreasonable searches and seizures2 was suppression of both identifications.
We review de novo a trial court’s decision whether to suppress evidence, People v
Williams, 472 Mich 308, 313; 696 NW2d 636 (2005), but we review the trial court’s factual
findings at the suppression hearing for clear error. People v Jenkins, 472 Mich 26, 31; 691
NW2d 759 (2005). We review de novo as a matter of law the application of the exclusionary
rule to a Fourth Amendment violation. Id. We likewise review de novo whether a party has
standing. Lee v Macomb Co Bd of Comm’rs, 464 Mich 726, 734; 629 NW2d 900 (2001).
A traffic stop constitutes a “seizure” under the Fourth Amendment of not only the driver,
but also all passengers; those passengers are therefore entitled to challenge the constitutionality
of the stop. Brendlin v California, ___ US ___, ___; 127 S Ct 2400, 2406-2408; 168 L Ed 2d
132 (2007). A passenger in a validly stopped vehicle lacks standing to challenge a search of the
vehicle to which the driver consented3 or that is incident to a valid arrest. People v LaBelle, 478
Mich 891, 891-892; 732 NW2d 114 (2007). A search may be “incident to a valid arrest” even if
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The vehicle was owned by the driver’s father.
2
See US Const, Am IV; Const 1963, art 1, § 11. In the absence of a compelling reason to
impose a different interpretation, Michigan’s constitutional prohibition against unreasonable
searches and seizures provides the same protection as that guaranteed by the Fourth Amendment
to the United States Constitution. People v Collins, 438 Mich 8, 25; 475 NW2d 684 (1991).
3
The driver did not consent in this case.
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it precedes the actual arrest, so long as there was already probable cause to make the arrest that
ensued, and so long as the arrest was not based on the fruits of the search.4 People v Arterberry,
431 Mich 381, 384-385; 429 NW2d 574 (1988); People v Champion, 452 Mich 92, 115-117; 549
NW2d 849 (1996). Where a mere passenger in a stopped vehicle has standing to challenge the
constitutionality of an illegal stop, the only rational inference is that a passenger likewise has
standing to challenge the constitutionality of an illegal search.
Therefore, whether defendant may challenge the stop or the search depends on whether
each was legal. Under the circumstances of this case, I find both to be close questions. But
when the situations are viewed in their entirety, I conclude that, on balance, the stop was legal,
but the search was not.
A Fourth Amendment “seizure” occurs whenever the totality of the circumstances would
cause a reasonable person to believe that he or she may not leave. People v Jenkins, 472 Mich
26, 32; 691 NW2d 759 (2005). As a general matter, the Fourth Amendment prohibits law
enforcement officers from subjecting citizens to any seizure, no matter how brief, unless that
seizure is justified by probable cause. People v Shabaz, 424 Mich 42, 52; 378 NW2d 451
(1985). However, where the police have a reasonable, articulable suspicion that criminal activity
is afoot, a brief investigatory detention just to dispel that suspicion, and a minimal search for
dangerous weapons for the officer’s own self-protection, will be considered reasonable under the
Fourth Amendment. Id., 51-58; Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
Although the officer must base that reasonable suspicion on objective observations, nervous and
evasive behavior, and the officer’s own experience and expertise and common sense, may
suffice; furthermore, all of the circumstances must be considered together. People v Oliver, 464
Mich 184, 192-198; 627 NW2d 297 (2001).
Here, the police certainly knew that a crime had, in fact, just been committed. Although
the description of the perpetrators was minimal – two or possibly three black males wearing dark
clothing – that description is nevertheless sufficient to at least restrict the number of possible
suspects. More importantly, the police knew that the suspects fled into a gated complex from
which vehicles could only emerge at one point. The fact that a vehicle occupied by three black
males in dark clothing emerged a short time after the perpetrators fled into the complex might
not be enough to warrant a Terry stop. However, critically, the occupants of that vehicle acted in
a way that the officers’ experience and expertise told them was suspicious. Although a close
call, when all of these factors are considered together, I believe the totality of the circumstances
provided enough reasonable suspicion to justify the traffic stop.
It is well-established “that, when a person is taken into official custody, it is reasonable to
search for weapons, instruments of escape, and evidence of crime,” and although “the search
must be strictly tied to, and justified by, the circumstances that rendered its initiation
permissible,” it extends not only to the arrestee but also “the area within the arrestee’s immediate
4
“‘[I]t is axiomatic that an incident search may not precede an arrest and serve as part of its
justification.’” Smith v Ohio, 494 US 541, 543; 110 S Ct 1288; 108 L Ed 2d 464 (1990), quoting
Sibron v New York, 392 US 40, 63; 88 S Ct 1889; 20 L Ed 2d 917 (1968).
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reach.” People v Houstina, 216 Mich App 70, 75; 549 NW2d 11 (1996). However, “there must
be a lawful arrest in order to establish the authority to search.” Id. As discussed, that lawful
arrest need not necessarily precede the search, but if the arrest follows the search, it may not be
based on anything revealed by the search. Thus, I am troubled by the fact that, although the
police certainly had probable cause to arrest the driver of the vehicle for failure to produce a
driver’s license, the driver and the other occupants of the vehicle were actually arrested on the
basis of the discovery of the credit cards. On the facts present in this case, I conclude that the
search exceeded the scope permitted for a search incident to an arrest.
A search incident to an arrest “only allows for a search of the area immediately
surrounding the arrestee and, thus, does not allow for the officer to routinely search ‘any room
other than that in which the arrest occurs [or] through all the desk drawers or other closed or
concealed areas in that room itself.’” People v Mungo, 277 Mich App 577, 581; ___ NW2d ___
(2008), quoting Chimel v California, 395 US 752, 763; 89 S Ct 2034; 23 L Ed2d 685 (1969).
There is a reduced expectation of privacy in a vehicle. On that basis the interior of a vehicle may
be searched incident to an arrest, even if the arrestee is merely a passenger and even in the
absence of probable cause to believe the vehicle contains contraband or evidence of illegality.
Id. The search may extend to the passenger compartment and “containers,” essentially meaning
any object capable of containing another object, within the passenger compartment, but not to the
trunk. People v Eaton, 241 Mich App 459, 463-465; 617 NW2d 363 (2000); Mungo, supra at
581-582.
A panel of this Court has recently observed that there is a need for a bright line rule in
this area for the benefit and safety of the police. Mungo, supra at 584-587. But it is equally
important not to lose sight of the purposes behind the Fourth Amendment and the narrowness of
the exceptions thereto. Any analysis under the Fourth Amendment is always a balancing test
between competing interests. People have a reduced expectation of privacy in vehicles, but they
nevertheless have some expectation of privacy therein, even in vehicles in which they are mere
passengers. The purposes of the “search incident to an arrest” exception to the normal warrant
requirement are to protect law enforcement officers by discovering any potential weapons that
might be accessible to the arrestee and to preserve evidence for trial. Eaton, supra at 462. The
touchstone is the fact of the arrest. Mungo, supra at 588. Clearly, therefore, the search should
extend to places from which a person who discerns an imminent arrest or who is, in fact, being
arrested could retrieve a weapon; or where such a person could attempt to dispose of evidence.
But any other location is not sufficiently likely to pose a threat to an officer or to trial evidence to
justify invading any person’s privacy – even if there is only a minimal expectation of privacy –
without a warrant. As has been well established, the Fourth Amendment’s warrant requirement,
and the exceptions thereto, depend on reasonableness.
On balance, I conclude that the search here that uncovered the credit cards went beyond
what was permitted. The area under the seat was apparently not readily accessible to a passenger
sitting on it, making it more akin to a trunk than to a glove box, or even a removable radio or
gearshift boot. The “search incident to an arrest” exception applies even to “containers” that
might not be able to hold a weapon or evidence relevant to the crime that prompted the arrest.
Eaton, supra at 463-464. The purposes to be served by the warrant requirement of the Fourth
Amendment, and the “search incident to an arrest” exception thereto, would be thwarted if the
container searched was not feasibly accessible to the arrestee at the time law enforcement
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personnel initiated contact with the arrestee. If a container cannot readily be opened or accessed
by an arrestee at the time of the arrest, the contents of that container cannot realistically be within
the arrestee’s “immediate control” at the time of the arrest.
None of us have had the benefit of an examination of this particular vehicle. None the
less, I question Judge Schuette’s observation concerning the ease with which one can lift up the
back seat of a vehicle to access something beneath it, particularly if one is attempting to do so in
the immediate presence of several police officers who are at the time focusing on one’s activities,
if one is actually sitting on the seat at the time, or both. I do acknowledge that the record here
suggests that almost immediately following the stop, upon learning that the driver did not have
an operator’s license, the police ordered all occupants out of the vehicle, but that simply creates
another scenario where it is improbable that one would gain easy – or, indeed, any – access to the
area under the car’s seats. Further, at that point no one was going anywhere until the police had
concluded their purposes, so the officers had ample opportunity to follow proper procedures to
obtain a warrant. There was no longer any exigency under the circumstances.
Some additional light is shed on the instant situation by the fact that the police described
the search here as an inventory search. An inventory search is a particular type of search. A
proper inventory search does indeed permit the police to conduct an exhaustive search of a
vehicle pursuant to standardized and neutral procedures intended to protect the vehicle owner’s
property and to protect the police from potential dangers or from assertions of theft or loss.
People v Green, 260 Mich App 392, 412-413; 677 NW2d 363 (2004), overruled on other
grounds People v Anstey, 476 Mich 436; 719 NW2d 579 (2006). But such a vehicle must have
actually been lawfully impounded, and the search may not be a pretext for obtaining evidence.
People v Poole, 199 Mich App 261, 265-266; 501 NW2d 265 (1993). This could not have been
a valid inventory search. We presume that the Detroit Police Department had in place
standardized procedures governing a true inventory search that likely would have been
conducted after the vehicle was impounded, possibly showing that, pursuant to those procedures,
the credit cards would inevitably have been discovered anyway. If so, the “inevitable discovery”
exception to the warrant requirement would obviate the illegality of the instant search. See
People v Stevens (After Remand), 460 Mich 626, 637; 597 NW2d 53 (1999). However, there is
no evidence in the record of any such procedures being employed.
The rather elaborate and lengthy discussion of the circumstances of the initial stop and
the subsequent search of the vehicle in this case is important and necessary to set the stage for
the necessary analysis of the facts as they existed to the applicable law for the purpose of
determining the correctness of the trial court’s ruling on the suppression motion. The
exclusionary rule applies not only to evidence directly obtained through police illegality, but also
to much evidence that was derivatively obtained as a consequence of that illegality. People v
Frazier, 478 Mich 231, 247 n 17; 733 NW2d 713 (2007). For the reasons stated, I conclude that
the initial stop was legally permissible but that the investigatory search of the area under the rear
passenger seat of the vehicle was not. With that conclusion in mind, I turn to an evaluation of
the two opportunities for eyewitness identification of the defendant as a perpetrator of the first
armed robbery that were suppressed by the trial court. Turning first to the lineup identification,
Judge Borrello and I agree that it should have been suppressed, albeit on the basis of different
findings of police illegality, and that the inevitable discovery exception does not apply thereto.
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The inevitable discovery exception to the exclusionary rule requires the prosecution to
“establish by a preponderance of the evidence that the information ultimately or inevitably would
be discovered by lawful means.” People v Kroll, 179 Mich App 423, 429; 446 NW2d 317
(1989). The prosecution cannot: at most, the prosecution speculates that the police
“undoubtedly learned defendant’s name during the initial phase of the investigatory stop” and
would have had probable cause to arrest him after discovering the credit cards. We decline to
engage in such speculation in the absence of record evidence that the police actually did learn
defendant’s name prior to the illegal search, that the police would necessarily have arrested the
driver and impounded the car in the absence of the illegal search, and that the police would then
have discovered the credit cards pursuant to a valid inventory search.5 Furthermore, the
prosecution misunderstands the nature of the evidence to be suppressed: defendant’s identity is
not in dispute, nor is it, strictly speaking, evidence, given that the police may require an
individual to identify him- or herself under a wide array of circumstances. The evidence to be
suppressed is Jones’ lineup identification of defendant as Jones’ assailant, which the prosecution
has simply not shown would inevitably have occurred without the illegal search. I believe the
trial court correctly suppressed the lineup identification.
However, we are unanimous in finding that the trial court erred in suppressing Jones’ incourt identification of defendant. The exclusionary rule will not apply if the causal connection
between the evidence and the misconduct becomes sufficiently attenuated. People v LoCicero,
453 Mich 496, 508-509; 556 NW2d 498 (1996). In United States v Crews, 445 US 463, 477478; 100 S Ct 1244; 63 L Ed 2d 537 (1980), a majority of the Justices of the United States
Supreme Court agreed that “an in-court identification of the accused by the victim of a crime
should not be suppressed as the fruit of the defendant’s unlawful arrest.” According to the
Justices, even if a defendant was illegally arrested, the in-court identification will be admissible
if the victim had an independent recollection of the defendant that antedated and was unaffected
by the unlawful police misconduct. Similarly, this Court has held that when a victim’s in-court
identification of an illegally arrested defendant is a product of the victim’s opportunity to
observe the defendant at the time of the offense, that identification is made independent of the
police taint, so it is admissible. People v Jackson, 46 Mich App 764, 771; 208 NW2d 526
(1973).
Jones testified at trial that when defendant robbed him, the two were face-to-face and less
than a foot away from each other, and Jones could see what defendant looked like. Although
Jones did not look at defendant for the entire duration of their encounter, Jones had the
opportunity to observe his assailant for five to ten minutes. He testified that he described the
perpetrator to police as 20 to 22 years old, 5’5” to 5’7” tall, weighing 150 pounds and of thin
build, with medium brown skin and braids in his hair, and wearing a red shirt and grey jogging
pants. Jones’ testimony shows that his in-court identification of defendant was based on his
independent recollection of the robbery itself, and it was not influenced by the lineup
5
The prosecution also suggests that “the police could easily have arranged for [the victim] to
view a photo array and identify defendant as his assailant,” but this, too, is unsupported by any
record evidence that the police were already in possession of a photograph of defendant.
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identification or by the illegal police search. It appears that the trial court nevertheless
suppressed the in-court identification because Jones did not testify at the suppression hearing and
the court could not recall Jones’ testimony whether he had an independent basis for the
identification. The trial court erred in doing so.
In summary, I find that the police officers’ initial stop of the vehicle in which defendant
was a passenger was legal, but the subsequent search exceeded the scope of what was permitted
under the “search incident to an arrest” exception to the warrant requirement. The trial court
properly suppressed Jones’ lineup identification of defendant as the fruit of an illegal search that
was not shown by the prosecution to have been inevitable in the absence of the illegal search.
However, the trial court improperly suppressed Jones’ independent in-court identification of
defendant as his robber.
I concur in affirming the trial court’s suppression of the lineup identification, in reversing
the trial court’s suppression of the in-court identification, and in remanding for further
proceedings.
/s/ Alton T. Davis
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