PEOPLE OF MI V DANNY G PHILLIPS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 3, 2009
Plaintiff-Appellant,
v
No. 280631
Monroe Circuit Court
LC No. 07-036156-FH
DANNY G. PHILLIPS,
Defendant-Appellee.
Before: Stephens, P.J., and Cavanagh and Owens, JJ.
PER CURIAM.
The Monroe County Prosecutor appeals of right from the circuit court’s decision to
suppress evidence found by police in a search of defendant’s vehicle and to dismiss the charge of
possession with intent to deliver methylenedioxymethamphetamine (commonly known as
“Ecstasy” or MDMA), MCL 333.7401(2)(b)(i). We affirm.
A Michigan State Police trooper stopped defendant’s vehicle because it had two air
fresheners hanging from the rearview mirror in violation of MCL 257.709(1)(c). The trooper
determined that defendant’s two passengers had outstanding warrants and they were placed
under arrest.1 He then conducted a search of the vehicle incident to the arrests. In a hidden
compartment, he found a white athletic sock containing ten clear baggies with 906 multi-colored
pills of Ecstasy. Defendant gave a statement to the police in which he admitted driving to
Detroit with another man to purchase Ecstasy, being given 100 pills in return for doing so, and
intending to sell the 100 pills for $10 each when he returned to Cincinnati.
At the preliminary examination, defendant moved to suppress the drug evidence on the
ground that the trooper lacked probable cause to stop his vehicle. Defendant’s vehicle was
licensed in Ohio and he pointed out that the statute contained an express exemption precluding
its application to vehicles registered in another state. MCL 257.709(3)(d). Defendant also cited
an unpublished federal case, United States v Acuna-Payan, unpublished opinion of the United
1
The trooper testified that the front seat passenger had a felony warrant from Cincinnati and the
backseat passenger also had an arrest warrant and that he arrested both passengers. However, the
prosecutor than asked, “Okay. And after you had taken the one person into custody then what
did you do?” This apparent discrepancy was not cleared up.
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States District Court for the Western District of Michigan, issued May 23, 2006 (Docket No.
1:05-CR-291), that held that the police lacked probable cause to stop an out-of-state vehicle with
a crucifix hanging from the rearview mirror. Defendant argued that the police were not justified
in stopping every out-of-state vehicle they observed with some ornament obscuring a portion of
the windshield merely to confirm that the vehicle was validly registered. The district court
denied defendant’s motion and bound the case over for trial.
Defendant renewed his motion in the circuit court. The circuit court granted defendant’s
motion after ruling that the police had “no probable cause to stop this vehicle” because the
exception in MCL 257.709(3)(d) precluded application of the statute to cars registered in other
states. The prosecution has appealed the circuit court’s ruling.
This Court reviews a trial court’s2 findings of fact from a suppression hearing for clear
error. People v Williams, 472 Mich 308, 313; 696 NW2d 636 (2005). However, “the application
of constitutional standards regarding searches and seizures to essentially uncontested facts is
entitled to less deference; for this reason, we review de novo the trial court’s ultimate ruling on
the motion to suppress.” Id., citing People v Jenkins, 472 Mich 26, 31; 691 NW2d 759 (2005)
and People v Oliver, 464 Mich 184, 191-192; 627 NW2d 297 (2001).
MCL 257.709 provides in relevant part:
(1) A person shall not drive a motor vehicle with any of the following:
*
*
*
(c) A dangling ornament or other suspended object that obstructs the
vision of the driver of the vehicle, except as authorized by law.
However, an exception to this prohibition is provided in MCL 257.709(3)(d):
(3) This section shall not apply to:
*
*
*
(d) A vehicle registered in another state, territory, commonwealth of the
United States, or another country or province.
This Court’s responsibility when interpreting statutory language is to discern the intent of
the Legislature and the language of the statute generally reveals that legislative intent. People v
Lowe, 484 Mich 718, 721-722; __ NW2d __ (2009). Where “the language of the statute is plain
2
Here the trial court was the circuit court. However, the actual suppression hearing occurred in
the district court and the proceedings in the trial court were more in the nature of an appeal
without a new evidentiary hearing being conducted. It appears, though, that the facts developed
at the district court suppression hearing were uncontested by the parties, and the circuit court
engaged in no additional fact-finding. Therefore, we conclude that de novo review of the circuit
court’s ruling is appropriate.
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and unambiguous, we enforce the statute as written and follow its plain meaning, giving effect to
the words used by the Legislature.” People v Barbee, 470 Mich 283, 286; 681 NW2d 348
(2004), citing In re MCI, 460 Mich 396, 411; 596 NW2d 164 (1999). The language of this
statute is plain: the prohibitions of § 709(1) do not apply to out-of-state vehicles. This Court is
therefore required to apply the statute as written.
The stop of a motor vehicle must be based on reasonable suspicion that the driver or the
passenger(s) are involved in criminal activity.3 People v Whalen, 390 Mich 672, 682; 213 NW2d
116 (1973); People v Yeoman, 218 Mich App 406; 554 NW2d 577 (1996). The trooper’s only
reason for stopping defendant’s vehicle was his observation that it had two air fresheners
hanging from the rear view mirror. While that might suffice under the statute to support the stop
of a Michigan vehicle, defendant’s vehicle displayed an Ohio license plate. Therefore, the only
reasonable conclusion would have been that the out-of-state vehicle was exempt from the ambit
of the statute.
The prosecution argues that the police had the right to stop the vehicle to see if it was
validly registered, analogizing the vehicle stop to the right the police would have to demand
identification in a bar to verify that an individual was over twenty-one years old. However, that
right is based upon the officer’s view of a particular subject and a reasonable suspicion that the
person was underage. In this case the officers offered no testimony regarding any irregularity in
the appearance of the plate. If anything, the regular appearance of the plate gave rise to
reasonable suspicion of validity, and, therefore, the inapplicability of MCL 257.709.
Defendant relies on two unpublished decisions. While unpublished decisions are not
precedentially binding authority, MCR 7.215(C)(1), they may be persuasive. See: People v
Christopher Green, 260 Mich App 710, 720 n 5; 680 NW2d 477 (2004). We find these
decisions on point and their analyses persuasive.
In People v Gales, unpublished opinion per curiam of the Court of Appeals, issued June
14, 2007 (Docket No. 269803), the defendant was stopped by the police because his vehicle was
driving in the left (or “fast”) lane of I-75 and it violated the “window-tint” provision of MCL
257.709(1)(a). A search of the vehicle disclosed quantities of heroin and marijuana. The trial
court granted a suppression motion and dismissed the controlled substance charges, which the
prosecutor appealed. This Court affirmed the dismissal, holding that the defendant did not
violate the statute that prohibited driving in the left lane except to pass. This Court also held
that, while the defendant’s car did not comply with the statutory window-tinting regulations,
those regulations were not applicable because the car was from another state. This Court stated:
3
To the extent that the circuit court indicated that probable cause was required to stop
defendant’s vehicle, the court erred. Probable cause is generally required to justify the search of
the vehicle. People v Levine, 461 Mich 172, 185-186; 600 NW2d 622 (1999). In this case, the
prosecutor claimed that probable cause was unnecessary to justify the search because it was
conducted under the “search incident to arrest” exception to the warrant requirement. Under the
United States Supreme Court’s recent ruling in Arizona v Gant, 566 US __; 129 S Ct 1710; 173
L Ed 2d 485 (2009), it is questionable that this exception would apply. However, this issue was
not raised or considered below, and, given our disposition of this case, it is unnecessary for us to
resolve it on appeal.
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Apparently it is not disputed that defendant’s car did not comply with
window-tinting regulations imposed on Michigan vehicles. However, vehicles
registered in another state are not subject to those regulations.
MCL
257.709(3)(d). The prosecutor admits that defendant’s car had an out-of-state
license plate on it, but contends that a stop was appropriate to make sure the
vehicle was properly registered in another state. But there is no evidence to
indicate that the officer had any reason to believe that the displayed license plate
was invalid. He had not run a LEIN check before he initiated the stop and did not
identify any defect or irregularity suggesting that the plate was not valid.
Therefore, the tinting, which would constitute a violation of § 709 for a vehicle
registered in Michigan, did not create probable cause for stopping a vehicle
registered in another state. [Opinion at p 2.]
The instant case is, in all relevant respects, identical to the Gales case. The only reason
offered for stopping defendant’s car was the fact that air fresheners were hanging from the
rearview mirror in violation of the statutory prohibition. However, because defendant’s vehicle
was from Ohio, it was exempt from the statute. There is no indication the trooper ran a LEIN
check and determined defendant’s vehicle was not properly registered before he stopped it.
Therefore, the plain language of the statute, and the analysis of the Gales decision, clearly
forbade the vehicle stop.
Similarly, in United States v Acuna-Payan, unpublished opinion of the United States
District Court for the Western District of Michigan, issued May 23, 2006 (Docket No. 1:05-CR291), a police officer stopped the defendant’s car, which had an Illinois license plate, because it
had a crucifix and beads hanging from the rearview mirror in apparent violation of MCL
257.709(1)(c). The federal district court ruled that the vehicle stop was invalid because the
statute does not apply to an out-of-state vehicle.
We hold that these two unpublished decisions have correctly applied the plain language
of the statute to their respective facts. The salient facts are identical to this case: the police
stopped out-of-state vehicles based solely on the apparent violation of a statute that, by its own
terms, does not apply to out-of-state vehicles. No other justification for the stops was offered.
Therefore, the statutory exemption clearly applied and served to invalidate the vehicle stops.
Applying the same logic to this case, there was no basis to support the stop of defendant’s
vehicle, and the district court clearly erred by upholding the stop. The circuit court’s ruling
reversing the district court and dismissing the charge against defendant was proper.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Mark J. Cavanagh
/s/ Donald S. Owens
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