CITY OF BLOOMFIELD HILLS V RANDOLPH VINCENT FAWKES
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STATE OF MICHIGAN
COURT OF APPEALS
CITY OF BLOOMFIELD HILLS,
UNPUBLISHED
May 11, 2010
Plaintiff-Appellant,
v
No. 289800
Oakland Circuit Court
LC No. 2007-008662-AR
RANDOLPH VINCENT FAWKES,
Defendant-Appellee.
Before: CAVANAGH, P.J., and O’CONNELL and WILDER, JJ.
PER CURIAM.
Plaintiff appeals by delayed leave granted from a circuit court order reversing a district
court decision denying defendant’s motion to suppress the results of a chemical analysis of
defendant’s blood, which was obtained pursuant to a search warrant. We reverse the circuit
court’s order.
Bloomfield Hills Police Officer Dustin Lockard arrested defendant for suspicion of
operating a motor vehicle while intoxicated and transported him to the police station. Defendant
refused to take a breathalyzer test, so Officer Lockard prepared an affidavit for a search warrant
to obtain a sample of defendant’s blood. The affidavit was prepared using a standardized form in
which Officer Lockard added details particular to defendant. The affidavit states that Officer
Lockard was “investigating a motor vehicle incident involving intoxicating liquor/controlled
substance that occurred at 2:10 A.M. 05/04/2007 . . . .” Officer Lockard averred that defendant
was the driver involved in the incident and was observed “sitting in the driver’s seat.” The
affidavit further states:
(D) That Affiant believes that said described person is under the influence
of intoxicating liquor And/or controlled substance based upon the following
personal observations:
I. Affiant observed the Subject driving in the following manner:
Operating vehicle on roadway, stop on roadway and exit vehicle.
II. Suspect had an odor of intoxicants emanating from his / [sic] breath,
person, interior of vehicle, and Suspect had watery eyes.
III. Sobriety test results: Refused to perform tests.
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***
IV. Suspect’s driving record indicates 1 alcohol related driving offenses
[sic].
The district court held an evidentiary hearing at which Officer Lockard admitted that he
did not examine defendant’s eyes. The district court found that the reference to “watery eyes” in
the affidavit was “a mistake,” but suppression was not required because the remaining
allegations in the affidavit were sufficient to establish probable cause to issue the search warrant.
Accordingly, the court denied defendant’s motion to suppress.
In his appeal to circuit court, defendant noted that in addition to the inaccuracy regarding
the “watery eyes,” the affidavit used to obtain the search warrant also incorrectly stated that
defendant had a prior alcohol-related driving offense. However, plaintiff did not dispute that
defendant’s driving record actually consisted of a responsible plea to careless driving, a civil
infraction. The circuit court concluded that the assertions concerning “watery eyes” and
defendant’s driving record must be disregarded as false, and the remaining averments in the
affidavit were insufficient to establish probable cause to issue the warrant to draw defendant’s
blood, and the blood test results should therefore be suppressed. The circuit court reversed the
district court’s decision.
On appeal, plaintiff does not dispute that the circuit court properly disregarded
information concerning defendant’s watery eyes and prior driving record, but argues that the
circuit court erred in concluding that the remaining allegations in the affidavit were insufficient
to establish probable cause to obtain a search warrant to draw defendant’s blood.
“We review de novo a trial court’s ultimate determination on a motion to suppress and its
factual findings for clear error.” People v Mullen, 282 Mich App 14, 21; 762 NW2d 170 (2008)
(citations omitted). Generally, “after-the-fact scrutiny by courts of the sufficiency of an affidavit
should not take the form of de novo review. A magistrate’s determination of probable cause
should be paid great deference by reviewing courts.” People v Keller, 479 Mich 467, 474, 477;
739 NW2d 505 (2007) (citations and internal quotations omitted). Where an affidavit has been
redacted, however, de novo review is appropriate to determine whether the redacted affidavit is
sufficient to establish probable cause, because the magistrate did not have the opportunity to
assess the facts as set forth in the redacted version. United States v Elkins, 300 F3d 638, 651
(CA 6, 2002); People v Hebert, 46 P3d 473, 481 (Colo, 2002). Probable cause to search exists
“when a person of reasonable caution would be justified in concluding that evidence of criminal
conduct could be found in a stated place to be searched.” People v Stumpf, 196 Mich App 218,
227; 492 NW2d 795 (1992).
In Stumpf, this Court explained:
Franks v Delaware, 438 US 154, 155-156; 98 S Ct 2674; 57 L Ed 2d 667
(1978), requires that if false statements are made in an affidavit in support of a
search warrant, evidence obtained pursuant to the warrant must be suppressed if
the false information was necessary to a finding of probable cause. In order to
prevail on a motion to suppress the evidence obtained pursuant to a search
warrant procured with alleged false information, the defendant must show by a
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preponderance of the evidence that the affiant had knowingly and intentionally, or
with reckless disregard for the truth, inserted false material into the affidavit and
that the false material was necessary to a finding of probable cause. Id., pp 171172; People v Williams, 134 Mich App 639, 643; 351 NW2d 878 (1984), lv den
421 Mich 860 (1985). [Id. at 224.]
Here, after disregarding the averments regarding defendant’s “watery eyes” and
defendant’s prior driving record, the remaining averments in the affidavit indicate that defendant
“had an odor of intoxicants emanating from his / [sic] breath, person, interior of vehicle,” that
Officer Lockard observed defendant “[o]perating vehicle on roadway, stop on roadway and exit
vehicle,” and that defendant refused Officer Lockard’s request to perform sobriety tests.
Regarding the significance of defendant’s refusal to participate in field sobriety testing,
the circuit court stated:
Finally, Officer Lockard’s affidavit indicates that Defendant refused to
perform sobriety tests. In considering this allegation, it must be recognized that
such conduct “is not evidence of guilt or innocence” in a drunk driving case, nor
is it evidence of any essential element of the crime. People v Stratton, [148 Mich
App 70; 384 NW2d 83 (1985)]; People v Duke, [136 Mich App 798; 357 NW2d
775 (1984).] As a result, such evidence is not admissible in a criminal trial on a
drunk driving offense, at least not to prove that Defendant was, in fact, intoxicated
while operating his vehicle. Id. Moreover, where such evidence is admitted for
another purpose, the jury must be instructed that the evidence may not be used “in
determining the defendant’s innocence or guilt.” MCL 257.625a(9). If
Defendant’s refusal to submit to sobriety testing “is not evidence of guilt or
innocence,” it is difficult to see how the same evidence could be said to establish
probable cause to believe that evidence of illegal levels of intoxication would be
found in Defendant’s blood.
We conclude that the circuit court’s reasoning is flawed because (1) the authorities and principles
on which the circuit court relied concern a refusal to participate in chemical testing pursuant to
MCL 257.625a, and (2) a prohibition on the admissibility of evidence in a prosecutor’s case-inchief does not mean that evidence may not be considered in an evaluation of probable cause.
First, the cases cited by the circuit court, Duke, 136 Mich App 798, and its progeny,
including Stratton, 148 Mich App 70, are based on statutory provisions governing chemical tests
pursuant to MCL 257.625a. MCL 257.625a(9) states,
A person’s refusal to submit to a chemical test as provided in [MCL
257.625a(6)] is admissible in a criminal prosecution for a crime described in
[MCL 257.625c(1)] only to show that a test was offered to the defendant, but not
as evidence in determining the defendant’s innocence or guilt. The jury shall be
instructed accordingly.
MCL 257.625a(6) states that “[t]he following provisions apply with respect to chemical tests and
analysis of a person’s blood, urine, or breath, other than preliminary chemical breath analysis,”
and lists the pertinent provisions. These statutory provisions do not pertain to field sobriety tests,
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and cases applying these provisions have not extended the principles to field sobriety tests.
Decisions from other jurisdictions recognize that it is proper to infer a consciousness of guilt
from a motorist’s refusal to perform field sobriety tests. For example, in State v Sanchez, 131
NM 355, 358; 36 P3d 446 (2001), the court stated:
The State can use evidence of a driver’s refusal to consent to the field
sobriety testing to create an inference of the driver’s consciousness of guilt. [The
arresting officer], or an objectively reasonable officer in his position, could
logically infer from Defendant’s refusal to consent to the field sobriety testing that
Defendant knew he was driving under the influence of alcohol and that these tests
might reveal his impairment. This inference, combined with the officer’s other
observations of Defendant, gave [the arresting officer] probable cause to arrest
Defendant for DWI. [Internal citations omitted.]
See also Hoffman v State, 275 Ga App 356, 358; 620 SE2d 598 (2005); State v Filchock, 166
Ohio App 3d 611, 625; 852 NE2d 759 (2006).
Second, even if the statutory provisions that are applicable to a refusal of chemical testing
were extended by analogy to field sobriety testing, the prohibition on the consideration of
particular evidence on the issue of guilt or innocence does not mean that the evidence cannot be
considered in determining whether there is probable cause for a search warrant. For example, an
affidavit for a search warrant may include information revealed by a confidential informant, and
a search warrant may be issued on the basis of an affidavit that contains hearsay. People v
Harris, 191 Mich App 422, 425; 479 NW2d 6 (1991); People v Brooks, 101 Mich App 416, 419;
300 NW2d 582 (1980).
With respect to the significance of Officer Lockard’s detection of an odor of alcohol, the
circuit court relied on People v Rizzo, 243 Mich App 151, 158; 622 NW2d 319 (2000), in which
this Court agreed that “the strong odor of intoxicants on a motorist’s breath, standing alone, can
provide a police officer with a reasonable, articulable, particularized suspicion that the motorist
was driving while under the influence of intoxicating liquor.” This Court explained that a police
officer may then instruct a motorist to perform roadside sobriety tests in order to confirm or
dispel the reasonable suspicion that the motorist consumed intoxicating liquor and this affected
his ability to operate a motor vehicle. Id. at 161. In this case, the circuit court extrapolated from
Rizzo that, standing alone, a strong odor of intoxicants does not establish probable cause to arrest
the motorist or to search his body for evidence of illegal levels of intoxication. However, the
present case does not involve the odor of intoxicants standing alone.
With respect to the averment concerning the stop and exit on the roadway, the circuit
court noted that the affidavit provided no further information and the court did not see how the
averment could have led the magistrate to conclude that defendant was intoxicated at that time.
However, the fact that defendant stopped his vehicle in the roadway and then exited the vehicle
was properly considered as part of the totality of the circumstances set forth in the affidavit.
We conclude that the averments that defendant stopped and exited his vehicle on the
roadway at approximately 2:00 a.m., that he had “an odor of intoxicants coming from his breath,
person, interior of car,” and that he refused to perform sobriety tests, considered together, are
adequate to establish probable cause to issue a search warrant for defendant’s blood.
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Accordingly, the district court did not err in denying defendant’s motion to suppress, and the
circuit court erred in reversing that decision.
Reversed.
/s/ Mark J. Cavanagh
/s/ Peter D. O’Connell
/s/ Kurtis T. Wilder
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