PEOPLE OF MI V TOREESE HODGERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 11, 2010
Plaintiff-Appellant,
v
No. 287306
Wayne Circuit Court
LC No. 08-003628-01
TOREESE HODGERS,
Defendant-Appellee.
Before: Servitto, P.J., and Fort Hood and Stephens, JJ.
STEPHENS, J. (dissenting)
I would affirm the trial court’s order dismissing the firearm charges brought against
defendant. I agree with the majority that the initial traffic stop was supported by probable cause.
However, I conclude that the discovery of the firearm evidence occurred after the police officer
exceeded the scope of the stop and improperly detained defendant.
As the majority acknowledges, a detention in the wake of a traffic stop is typically only
permitted to last as long as it takes to issue a traffic citation. People v Burrell, 417 Mich 439,
453; 339 NW2d 403 (1983). A police officer may not detain the subject of the traffic stop for
questioning unrelated to the traffic stop unless that additional questioning is supported by a
reasonable suspicion. Id. at 441. “A traffic stop is reasonable as long as the driver is detained
only for the purpose of allowing an officer to ask reasonable questions concerning the violation
of law and its context for a reasonable period.” People v Williams, 472 Mich 308, 315; 696
NW2d 636 (2005). Despite recognizing the above-cited binding precedent, the majority
concludes that Officer O’Shea’s questioning of defendant was not improper in light of the recent
holding in Arizona v Johnson, ___ US ___; 129 S Ct 781, 788; 172 L Ed 2d 694 (2009). For the
reasons stated below, I disagree with the majority’s application of Johnson to the present case.
As the majority explains, Johnson provides that, “[a]n officer’s inquiries into matters
unrelated to the justification for the traffic stop … do not convert the encounter into something
other than a lawful seizure, so long as those inquiries do not measurably extend the duration of
the stop [emphasis added].” Johnson, supra, 129 S Ct at 788. The Supreme Court did not
expound upon the meaning of the term “measurably extend.” However, by definition, any
extension in time, no matter how slight, is measurable. Upon reviewing the record, I cannot
confidently conclude that Officer O’Shea’s additional questioning of defendant did not result in
an extension of the duration of the traffic stop.
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More importantly, I conclude that the decision in Johnson does not necessarily apply to
the laws of search and seizure in Michigan. “Both the United States Constitution and the
Michigan Constitution guarantee the right against unreasonable searches and seizures. The
Michigan Constitution in this regard is generally construed to provide the same protection as the
Fourth Amendment of the United States Constitution.” People v Jones, 279 Mich App 86, 9091, 755 NW2d 224 (2008) (citations omitted). As the Michigan Supreme Court has stated, “[i]n
interpreting our Constitution, we are not bound by the United States Supreme Court's
interpretation of the United States Constitution, even where the language is identical.” People v
Goldston, 470 Mich 523, 534; 682 NW2d 479 (2004). There is not a “conclusive presumption”
that our interpretation must follow federal law. Id. at 534. “Rather, we must determine what law
“‘the people have made.’” Sitz v Dep't of State Police, 443 Mich 744, 759; 506 NW2d 209
(1993), quoting People v Harding, 53 Mich 481, 485, 19 NW 155 (1884). When determining if
it is appropriate to interpret the Michigan Constitution differently than the United States
Constitution, it is appropriate to consider, among other factors, the history of the state
constitution and common law. People v Collins, 438 Mich 8, 31 n. 39; 475 NW2d 684 (1991). I
conclude that the decisions in Burrell, supra, and Williams, supra, clearly establish that
Michigan has historically protected its citizens from questioning that is unrelated to the purpose
of a traffic stop where that questioning is not prompted by a reasonable suspicion of criminal
activity. The Johnson decision relied upon by the majority is contrary to the jurisprudence of
this state. The trial court properly applied Michigan law in reaching the conclusion that the
evidence of the firearms was inadmissible.
/s/ Cynthia Diane Stephens
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