PEOPLE OF MI V JAMES LAWRENCE MULLENAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 23, 2008
Oakland Circuit Court
LC No. 2007-212984-FH
JAMES LAWRENCE MULLEN,
Advance Sheets Version
Before: Meter, P.J., and Sawyer and Wilder, JJ.
The prosecution appeals by delayed leave granted1 the circuit court’s order granting
defendant’s motion to suppress evidence of the results of his blood alcohol content (BAC) test.
Defendant sought to suppress the evidence, contending that the search warrant affidavit included
false information and that material information was omitted. Following an evidentiary hearing,
the circuit court concluded that the arresting officer either intentionally or recklessly included
false information in the search warrant affidavit, and that material information was omitted from
the affidavit. After striking the false information and considering the omitted information, the
circuit court further concluded that the affidavit, as corrected, did not establish probable cause to
issue a search warrant, and granted the suppression motion.
We conclude that although the circuit court’s factual determinations are not clearly
erroneous, its determination that the affidavit, as corrected, did not establish probable cause to
issue a search warrant, was erroneous. Therefore, we reverse the circuit court’s order
suppressing the BAC evidence.
At approximately 2:00 a.m. on November 9, 2006, Troy police officer Frank Shuler saw
defendant’s vehicle stop at a red light, pause for a few seconds, and then proceed past the red
This Court granted leave to appeal limited to the issues raised in the application. People v
Mullen, unpublished order of the Court of Appeals, entered November 30, 2007 (Docket No.
light. Officer Shuler made a traffic stop, and when he approached the driver’s side window of
the vehicle, he smelled alcohol and noticed that defendant’s eyes were bloodshot and watery.
Officer Shuler testified2 that the smell of alcohol was fairly strong and that he therefore asked
defendant if he had consumed any alcohol that evening. Defendant indicated that he drank two
glasses of wine with dinner.
Officer Shuler asked defendant to get out of the vehicle for field sobriety tests, and first
asked defendant to count backward from 89 to 78. While defendant was able to do so, Officer
Shuler averred in his affidavit to the magistrate that defendant’s speech was slurred and that
defendant swayed back and forth. Second, Officer Shuler conducted the “horizontal gaze
nystagmus” test or HGN.3 Officer Shuler asked defendant to stand with his arms at his sides,
then held a pen in front of defendant’s face at eye level, instructed defendant to hold his head
still and to follow the pen with his eyes while Officer Shuler moved it side to side. Officer
Shuler held the pen four to six inches from defendant’s face, but despite the officer’s directions,
defendant repeatedly moved his head to follow the pen. Officer Shuler testified that defendant
“had the lack of smooth pursuit [meaning that defendant’s eyes allegedly jolted or staggered
while defendant shifted his gaze to follow the pen] and maximum deviation at onset prior to
forty-five.” By describing “maximum deviation,” Officer Shuler meant that defendant’s eyes
began to strain and “bounced” side to side within 45 degrees of center.
Third, Officer Shuler subjected defendant to the “one-legged stand” test. Before
conducting this test, defendant notified the officer that he had a knee injury, so the officer
instructed defendant to stand on his good leg. Officer Shuler testified that he demonstrated the
test and instructed defendant to count until told to stop. Officer Shuler testified that defendant
stopped counting before he was instructed to do so, and swayed while standing on one leg.4
Finally, Officer Shuler conducted the “finger to nose” test. He first demonstrated the test
for defendant, and then instructed defendant to keep his feet together, put his arms out to his
sides with his palms up, tilt his head back, and alternate touching the tip of his nose with his right
and left index fingers. Officer Shuler testified that defendant was unable to touch the actual tip
of his nose, touching the bridge instead, and that defendant also swayed back and forth during
With the exception of testimony to be identified, later, Officer Shuler provided essentially the
same testimony at both the preliminary examination and the evidentiary hearing conducted by
the trial court.
HGN “is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side.”
HGN is “exaggerated and may occur at lesser angles” when a person is intoxicated.
Development of a Standardized Field Sobriety Test, Appendix A: Standardized Field Sobriety
Testing, available at <http://www.nhtsa.dot.gov/people/injury/alcohol/SFST/appendix_a.htm>
(accessed February 5, 2008).
However, the fact that defendant swayed during the one-legged stand test was not disclosed by
Officer Shuler on the affidavit.
the test. Officer Shuler noted that defendant’s speech was “a little slurred” throughout the entire
Officer Shuler then conducted a preliminary breath test (PBT). Officer Shuler testified at
the preliminary examination that he checked defendant’s mouth before placing him in the
backseat of the patrol car, waited 15 minutes, and then administered the test. He also specifically
testified that he could not recall whether defendant had paper in his mouth before administering
the test. At the evidentiary hearing, Officer Shuler testified that defendant was chewing gum
when he was stopped, that he asked defendant to spit the gum out, and that he believed defendant
complied. Officer Shuler further testified that he checked defendant’s mouth and found it to be
empty, but he subsequently admitted that, when he began to read defendant his PBT rights, he
noticed that defendant had a little piece of paper in his mouth. Officer Shuler explained that he
did not believe that the paper would compromise the PBT results, and therefore waited only a
few minutes after noticing the paper before administering the test. Defendant’s PBT result was
Officer Shuler placed defendant under arrest and transported him to the police station.
After conducting a LEIN5 search, the officer discovered that defendant had one or two prior
arrests for driving under the influence of liquor. He read defendant his chemical test rights and
asked for a blood sample. Defendant initially consented, but then refused. Officer Shuler then
proceeded to secure a search warrant. He filled out a standardized form affidavit to secure the
warrant. On the form, Officer Shuler circled the entry indicating that he was investigating a case
of operating a motor vehicle while under the influence of liquor. Among several choices
provided on the form, Officer Shuler selected one stating that there was a strong odor of alcohol
emanating from defendant’s breath and person. He also selected one indicating that defendant
had slurred speech and watery eyes. The officer reported that defendant had a PBT result of
0.15. Officer Shuler noted that he observed defendant stop at a red light and then proceed on
red. He indicated that defendant “conducted field sobriety test poorly . . . stopped counting
before he was told to stop on the one leg stand . . . Nystagmus was present . . . [and defendant]
was unable to touch his right & left tip of his index fingers to the tip of his nose.” Officer Shuler
did not disclose in his affidavit that the defendant had paper in his mouth less than 15 minutes
before he conducted the PBT.
Relying on the affidavit, the magistrate issued a search warrant for a blood sample. The
blood test revealed that defendant had a blood alcohol content of 0.11 grams of alcohol per 100
milliliters of blood. Defendant was charged, as a third offender, with operating a motor vehicle
while intoxicated, in violation of MCL 257.625(1).
Before concluding its evidentiary hearing, the circuit court viewed the videotape of the
traffic stop. Following the hearing, the circuit court ruled that Officer Shuler had recklessly
omitted information that defendant had paper in his mouth less than 15 minutes before the
“LEIN” stands for the Law Enforcement Information Network.
administration of the PBT, recklessly stated in the affidavit only that Nystagmus was present
without informing the magistrate that he had administered the HGN test in a non-standardized
way and explaining the manner in which the test was administered, intentionally or recklessly
misrepresented that defendant’s speech was slurred (a conclusion that the circuit court reached
after viewing a videotape), intentionally or recklessly misrepresented that defendant stopped
counting at an inappropriate time during the one-legged stand test, and intentionally or recklessly
misrepresented that defendant was unable to touch the tip of his nose with his index fingers. The
circuit court concluded that given the remaining information in the affidavit indicating that a
strong odor of intoxicants emanated from defendant and that defendant had watery eyes, there
was insufficient evidence to support a finding of probable cause to issue the search warrant, and
the BAC evidence should be suppressed.
We review de novo a trial court’s ultimate determination on a motion to suppress, People
v McBride (On Remand), 273 Mich App 238, 249; 729 NW2d 551 (2006), rev’d in part on other
grounds 480 Mich 1047 (2008), and its factual findings for clear error, People v Williams, 472
Mich 308, 313; 696 NW2d 636 (2005). We review de novo underlying issues of law such as
statutory questions or the application of a constitutional standard to uncontested facts. People v
Keller, 479 Mich 467, 473-474; 739 NW2d 505 (2007).
We begin with the constitutional text. The Fourth Amendment of the United States
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized. [US Const, Am IV (emphasis added).]
Whether a search is reasonable is a fact-intensive determination and must be measured by
examining the totality of the circumstances. Williams, supra at 314. A reviewing court must
give great deference to a magistrate’s finding of probable cause to issue a search warrant.
Accordingly, we do not review de novo the lower court’s determination regarding the sufficiency
of a search warrant affidavit. Keller, supra at 474, 476-477. Rather, “this Court need only ask
whether a reasonably cautious person could have concluded that there was a substantial basis for
the finding of probable cause.” People v Martin, 271 Mich App 280, 297; 721 NW2d 815
(2006) (quotation marks and citation omitted). To find a substantial basis, we must “ensure that
there is a fair probability that contraband or evidence of a crime will be found in a particular
place.” Martin, supra at 297 (quotation marks and citation omitted).
The prosecutor contends that the circuit court clearly erred by determining that Officer
Shuler intentionally or recklessly misrepresented material facts and omitted material facts from
the affidavit. “A finding is clearly erroneous when, although there is evidence to support it, the
reviewing court is left with a definite and firm conviction that a mistake has been made.” People
v Lanzo Constr Co, 272 Mich App 470, 473; 726 NW2d 746 (2006).
The United States Supreme Court has found that false statements must be stricken from a
search warrant affidavit:
[W]here the defendant makes a substantial preliminary showing that a
false statement knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit, and if the allegedly
false statement is necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the defendant’s request. In the
event that at that hearing the allegation of perjury or reckless disregard is
established by the defendant by a preponderance of the evidence, and, with the
affidavit’s false material set to one side, the affidavit’s remaining content is
insufficient to establish probable cause, the search warrant must be voided and
the fruits of the search excluded to the same extent as if probable cause was
lacking on the face of the affidavit. [Franks v Delaware, 438 US 154, 155-156;
98 S Ct 2674; 57 L Ed 2d 667 (1978) (emphasis added).]
See also People v Stumpf, 196 Mich App 218, 224; 492 NW2d 795 (1992).
The trial court determined that Officer Shuler, either intentionally or with reckless
disregard for the truth, omitted material information regarding defendant’s PBT result. In his
affidavit, Officer Shuler indicated that defendant’s PBT results were 0.15, but he omitted that
defendant had a piece of paper in his mouth several minutes before administering the test. A
PBT should be administered only after the defendant’s mouth has been clear of foreign
substances for 15 minutes. Mich Admin Code R 325.2655(2)(b). The purpose of the rule is to
ensure accuracy of test results. See People v Wujkowski, 230 Mich App 181, 187; 583 NW2d
257 (1998); People v Rexford, 228 Mich App 371, 378; 579 NW2d 111 (1998). Having
reviewed the record, we conclude that the circuit court did not clearly err when it determined that
Shuler acted intentionally or with reckless disregard for the truth when he omitted this
information about the PBT.
But the fact that Shuler intentionally or recklessly omitted relevant information does not,
by itself, invalidate the warrant. In Michigan, there is a presumption that an affidavit supporting
a search warrant is valid. Martin, supra. Martin states:
A defendant is entitled to a hearing to challenge the validity of a search
warrant if he “makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included
by the affiant in the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause . . . .” Franks, supra at 155-156; see
also Stumpf, supra at 224. However, there is a presumption that the affidavit
supporting the search warrant is valid. Franks, supra at 171. In order to warrant
a hearing, the challenge “must be more than conclusory and must be supported by
more than a mere desire to cross-examine.” Id. The rule from Franks is also
applicable to material omissions from affidavits. Stumpf, supra at 224. [Martin,
supra at 311.]
Thus, according to Stumpf, only when there have been material omissions necessary to the
finding of probable cause may the resulting search warrant be invalidated. We conclude on the
basis of this record that the omission by Shuler (the fact that defendant had paper in his mouth
less than 15 minutes before the PBT was conducted) was not material, because defendant
presented insufficient evidence in the hearing below that the presence of paper in his mouth,
three minutes before administration of the PBT, would significantly call into question the
accuracy of the PBT result so as to preclude a finding of probable cause.
If, for example, Shuler had disclosed on the affidavit the fact that paper was in
defendant’s mouth approximately three minutes before he was administered the PBT, the
magistrate would have been able to determine what weight to give the PBT result and would not
have been required to exclude consideration of the PBT evidence.6 In this situation, the
magistrate’s discretion to consider the PBT evidence was broad because only a probable cause
finding was required, not proof beyond a reasonable doubt. People v Yost, 468 Mich 122, 126;
659 NW2d 604 (2003). As the Supreme Court noted in Yost: “[T]o find probable cause, a
magistrate need not be without doubts regarding guilt. The reason is that the gap between
probable cause and guilt beyond a reasonable doubt is broad . . . and finding guilt beyond a
reasonable doubt is the province of the jury.” Id.
The circuit court also did not clearly err when it determined that Officer Shuler omitted
certain facts related to the HGN test, either intentionally or with reckless disregard for the truth.
While the standard distance for holding the stimulus when conducting the HGN test is 12 to 15
inches from the suspect’s face, Officer Shuler could not recall the proper distance that he learned
in training and held the pen only four to six inches from defendant’s face. When conducting an
HGN test, the officer looks for three factors: (1) “the eye cannot follow a moving object
smoothly”; (2) “jerking is distinct when the eye is at a maximum deviation”; and (3) “the angle
of onset of jerking is within 45 degrees of center.” See Development of a Standardized Field
Sobriety Test, Appendix A: Standardized Field Sobriety Testing, available at
<http://www.nhtsa.dot.gov/people/injury/alcohol/SFST/appendix_a.htm> (accessed February 5,
In analogous situations, the failure strictly to observe the administrative rule requirements for
administration of a PBT (such as the 15 minute observation period) has not led to exclusion of
the evidence. In Wujkowski, supra, the operator continually observed the defendant from 5:05
a.m. until 5:23 a.m. except for the few seconds it took the officer to walk over and check the
datamaster to determine if the fifteen minutes had elapsed. Id. at 186. This Court held “that the
momentary time that the officer did not observe defendant was so minimal that the test results
cannot be assumed to be inaccurate,” noting that “there was no allegation that defendant placed
anything in his mouth or regurgitated. Under these circumstances, the Circuit Court erred in
ruling that the violation of the administrative rule required suppression of the results of the
Breathalyzer test.” Id. at 186.
Although Officer Shuler testified that he knew and understood these factors, he
generically stated in the affidavit that “nystagmus is present” without revealing that he had the
stimulus too close to defendant’s eyes. Because nystagmus occurs naturally and is always
present, the fact that the test had not been performed accurately was a significant omission in the
warrant affidavit reviewed by the magistrate. We agree with the circuit court that Officer
Shuler’s incorrect administration of the HGN test led to an inaccurate interpretation of the
results, and that Officer Shuler acted with at least reckless disregard for the truth when including
the misleading statement about the HGN test results in the affidavit.
We also conclude that the circuit court did not clearly err in determining that Officer
Shuler’s affidavit statement about the results of the one-legged stand test was false or
misleading. Upon review of the patrol car video, the circuit court concluded that while
defendant appeared to pause once while counting, he did not stop counting as averred by Officer
Shuler. Moreover, Officer Shuler omitted from the affidavit the fact that defendant was swaying
slightly during the test, despite the fact that swaying is a standardized factor. The circuit court
also did not err by striking the reference to the “finger to nose” test from the affidavit, because
the record supports the circuit court’s finding that Officer Shuler instructed defendant to touch
his nose, rather than the tip of his nose, and that defendant performed the test as he was
instructed to do.
Finally, we conclude that the circuit court did not clearly err by determining that Officer
Shuler falsely stated that defendant exhibited slurred speech. While the video reveals that
defendant did speak slowly, we agree with the circuit court that there is no sign of slurred
speech. Accordingly, the circuit court properly struck this statement from the affidavit.
The circuit court determined that after striking the inaccurate facts in the affidavit and
considering the omitted material facts, there was insufficient evidence to support the magistrate’s
finding of probable cause. We disagree.
Absent the stricken statements, and after adding the material information that was
improperly omitted, the affidavit would have asserted that Officer Shuler detected the “strong”
odor of alcohol and noticed that defendant had “watery eyes,” that defendant drove his vehicle
through a red light at 2:00 a.m., and that while defendant had paper in his mouth three minutes
before the test was administered, defendant’s PBT result was 0.15.
“Probable cause does not require certainty. Rather, it requires only a probability or
substantial chance of criminal activity.” People v Champion, 452 Mich 92, 111 n 11; 549 NW2d
849 (1996), citing Illinois v Gates, 462 US 213, 243-244 n 13; 103 S Ct 2317; 76 L Ed 2d 527
Probable cause to search exists when facts and circumstances warrant a
reasonably prudent person to believe that a crime has been committed and that the
evidence sought will be found in a stated place. Whether probable cause exists
depends on the information known to the officers at the time of the search.
[People v Brzezinski, 243 Mich App 431, 433; 622 NW2d 528 (2000).]
The remaining information in the search warrant affidavit, after the improperly omitted
information is added and the improper information is disregarded, is sufficient to form probable
cause to issue a search warrant for defendant’s blood. When reviewing a search warrant
affidavit, we must read it in a “common sense and realistic manner,” People v Whitfield, 461
Mich 441, 444; 607 NW2d 61 (2000) (quotation marks and citation omitted), not a crabbed or
hypertechnical manner. Defendant was stopped for a traffic violation in the middle of the night
and exhibited a strong smell of alcohol. On the basis of that evidence, Shuler subjected
defendant to field sobriety tests. Although the officer failed to correctly administer some of the
tests, the evidence presented below did not establish that the 0.15 PBT test result was
significantly unreliable as to preclude the reasonable belief by a police officer or a magistrate
that defendant’s blood might contain evidence of intoxication. Given the absence of any basis to
significantly call into question the 0.15 PBT result, and given the other circumstantial evidence
that defendant was intoxicated, we find that the circuit court erred by determining that a
reasonable magistrate would not have found probable cause to issue a search warrant.
Reversed and remanded to the circuit court for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
/s/ David H. Sawyer