PEOPLE OF TROY V EMRAN CHOWDHURY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE CITY OF TROY,
FOR PUBLICATION
September 10, 2009
9:00 a.m.
Plaintiff-Appellant,
v
No. 288696
Oakland Circuit Court
LC No. 2008-008862-AR
EMRAN CHOWDHURY,
Defendant-Appellee.
Advance Sheets Version
Before: STEPHENS, P.J., and JANSEN and WILDER, JJ.
PER CURIAM.
Plaintiff, the city of Troy (City), appeals by leave granted the circuit court’s denial of
leave to appeal, which allowed to stand the district court’s order striking down a City ordinance
and suppressing certain evidence collected from defendant during a preliminary breath test
(PBT). Having found no error in the district court’s ruling or the circuit court’s denial of leave to
appeal, we now affirm.
I
A number of young adults under 21 years of age were allegedly drinking alcoholic
beverages at a house party in the City. Police officers responded to a call and arrived to find a
group of individuals leaving the party on foot. The officers detained the group of young adults,
which included defendant. An officer asked each of the young adults whether he or she had been
drinking alcohol. Some of the young adults indicated that they had been drinking, and others
indicated that they had not. The officer divided the young adults into two smaller groups,
separating those who admitted that they had been drinking from those who denied drinking at the
party. The officers then proceeded to administer PBTs to the young adults. One of the officers
administered a PBT to defendant, which resulted in a reading of “0.025.” It is undisputed that
the officer did not request defendant’s consent before administering the PBT. Neither that
particular officer, nor any other officer, obtained a search warrant before administering the PBTs.
The City ordinance at issue in this case, Troy Ordinance § 98.10.03, provides in relevant
part:
A person less than 21 years of age shall not purchase or attempt to
purchase alcoholic liquor, consume or attempt to consume alcoholic liquor, or
possess or attempt to possess alcoholic liquor. A person who violates this section
is guilty of a misdemeanor . . . .
-1-
***
A peace officer who has reasonable cause to believe a person less than 21
years of age has consumed alcoholic liquor may require the person to submit to a
preliminary chemical breath analysis. A peace officer may arrest a person based
in whole or in part upon the results of a preliminary chemical breath analysis.
The results of a preliminary chemical breath analysis or other acceptable blood
alcohol test are admissible in a criminal prosecution to determine whether the
minor has consumed or possessed alcoholic liquor.
Furthermore, Troy Ordinance § 98.10.04 provides in relevant part that a “person less than 21
years of age who refuses to submit to a preliminary chemical breath analysis . . . is responsible
for a civil infraction and may be ordered to pay a civil fine of not more than $100.00.”
Defendant testified before the district court that the officers had indicated that he and the
others were required take a PBT. According to defendant and other witnesses, the officers
informed the young adults that they would be taken to the police station—and possibly go to
jail—if they did not comply by submitting to the PBTs. Defendant testified that he believed that
he had no choice but to submit to the PBT. Defendant and other witnesses stated that the officers
had been aggressive and had used profane language toward the young adults. Defendant testified
that he had felt intimidated and that he had therefore submitted to the PBT without objecting and
without asking any questions of the officers.
After having been charged with violating Troy Ordinance § 98-10-03, defendant moved
in the district court to suppress the results of the PBT. Defendant argued that the ordinance was
unconstitutional because it purported to allow a police officer to perform a warrantless search,
because warrantless searches are generally considered unreasonable unless an exception applies,
and because no exception to the warrant requirement was applicable in this case. In support of
his position, defendant cited two cases in which the United States District Court for the Eastern
District of Michigan had ruled that a similarly worded ordinance and a similarly worded state
statute were unconstitutional. Defendant at all times maintained that the police officers had been
aggressive, that he had felt compelled to comply with the officers’ directions, and that he had not
voluntarily submitted to the PBT.
The district court held oral argument on defendant’s motion and heard the testimony of
several witnesses. The district court ruled that Troy Ordinance § 98-10-03 was unconstitutional
on its face, that the warrantless search of defendant’s person had been unreasonable, and that no
exception to the warrant requirement had been applicable on the facts of this case. Therefore, the
district court suppressed the evidence collected from defendant during the PBT.1
1
Although the district court suppressed the evidence collected from defendant during the PBT, it
did not grant defendant’s motion to dismiss. The district court remarked, “I’m not going to
dismiss the case yet [because] the People might be able to prove it without a PBT test, I don’t
know whether they can or not, but I am not going to go so far as to dismiss it yet.”
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The City subsequently sought leave to appeal the district court’s ruling in the Oakland
Circuit Court. The circuit court held no oral argument and decided the City’s application for
leave to appeal on the basis of the written submissions alone. In a succinct but complete opinion
and order, the circuit court observed that it had surveyed the relevant caselaw and had found no
decisions on point, other than the two federal cases cited by defendant before the district court.
The circuit court opined that “[t]here is nothing from the appellate courts upon which to base the
reversal of the district court” and that the “district court’s decision was correct insofar as the
ordinance is unconstitutional . . . .” Accordingly, the circuit court denied the City’s application
for leave to appeal the district court’s ruling.
We granted leave to appeal to consider this issue of first impression for the Michigan
appellate courts. People of Troy v Chowdhury, unpublished order of the Court of Appeals,
entered March 20, 2009 (Docket No. 288696).
II
The constitutionality of an ordinance is reviewed de novo, People v Barton, 253 Mich
App 601, 603; 659 NW2d 654 (2002), as are all other questions of constitutional law, People v
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). We will not disturb a trial court’s2 findings
of fact at a suppression hearing unless they are clearly erroneous. People v Farrow, 461 Mich
202, 209; 600 NW2d 634 (1999). However, the ultimate question whether evidence should be
suppressed is an issue of law for the court. People v Dungey, 235 Mich 144, 146-147; 209 NW
57 (1926). “Questions of law relevant to a motion to suppress evidence are reviewed de novo.”
People v Hawkins, 468 Mich 488, 496; 668 NW2d 602 (2003).
III
We cannot conclude that the circuit court erred by denying the City’s application for
leave to appeal, thereby allowing to stand the district court’s order striking down Troy Ordinance
§ 98.10.03 and suppressing the evidence collected from defendant during the PBT.
The United States District Court for the Eastern District of Michigan has already held a
substantially similar Bay City ordinance and a substantially similar state statute unconstitutional.
Spencer v Bay City, 292 F Supp 2d 932 (ED Mich, 2003); Platte v Thomas Twp, 504 F Supp 2d
227 (ED Mich, 2007). In the instant matter, the district court cited these two federal cases as
persuasive authority, ruling that Troy Ordinance § 98.10.03 “is too broad,” that “requesting
someone to submit to a PBT is a search,” and that the police were required to obtain a warrant
before administering the PBTs unless it could be shown that one of the exceptions to the search
warrant requirement applied. As discussed previously, the circuit court agreed, finding no
Michigan caselaw on which to base a reversal of the district court’s ruling.
2
In cases such as this, wherein a district court ruling has been appealed in the circuit court, we
refer to the district court as the “trial court.” See MCR 7.101(A)(1).
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A
The City argues that the federal caselaw relied on by the district and circuit courts failed
to adequately address the “special needs” exception to the search warrant requirement. The City
contends that the “special needs” exception should be applied in this case because there is a
compelling state interest in protecting young people from the dangers of alcohol abuse and in
protecting the general public from the potential consequences of alcohol abuse by young persons.
It is true, as the City points out, that we are not bound by the decisions of lower federal
courts. Abela v Gen Motors Corp, 469 Mich 603, 606; 677 NW2d 325 (2004). However, both
Spencer and Platte thoroughly discussed the issues presented in the instant case and specifically
refute the City’s argument that the “special needs” exception to the search warrant requirement
should apply.
“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, 90-91; 755 NW2d 224 (2008) (citations
omitted); see also US Const, Am IV; Const 1963, art 1, § 11. “‘The constitutions do not forbid
all searches and seizures, only unreasonable ones. . . . The applicable test in determining the
reasonableness of an intrusion is to balance the need to search, in the public interest, for evidence
of criminal activity against invasion of the individual’s privacy.’” People v Wilkens, 267 Mich
App 728, 733; 705 NW2d 728 (2005) (citation omitted).
“Ordinarily, searches or seizures conducted without a warrant are unreasonable per se.
And, generally, when evidence has been seized in violation of the constitutional prohibition
against unreasonable searches and seizures, it must be excluded from trial.” People v Dagwan,
269 Mich App 338, 342; 711 NW2d 386 (2005) (citation omitted). “There are, however, a
number of recognized exceptions to the warrant requirement . . . .” Id. Among others, these
exceptions include “exigent circumstance[s], searches incident to a lawful arrest, stop and frisk,
consent, and plain view. Each of these exceptions, while not requiring a warrant, still requires
reasonableness and probable cause.” People v Brzezinski, 243 Mich App 431, 433-434; 622
NW2d 528 (2000) (citation omitted). In addition, under “the governmental ‘special needs’ or
regulatory exception,” a “warrant or probable cause will not be required . . . as long as the
searches meet ‘reasonable legislative or administrative standards.’” People v Woods, 211 Mich
App 314, 317; 535 NW2d 259 (1995), quoting Griffin v Wisconsin, 483 US 868, 873; 107 S Ct
3164; 97 L Ed 2d 709 (1987).
In Spencer, 292 F Supp 2d at 935, the federal district court considered a Bay City
ordinance that provided:
A peace officer who has reasonable cause to believe a person less than 21
years of age has consumed alcoholic liquor may require the person to submit to a
preliminary chemical breath test analysis. A peace officer may arrest a person
based in whole or in part upon the results of a preliminary chemical breath
analysis. The results of a preliminary chemical breath analysis or other
acceptable blood alcohol tests are admissible in a criminal prosecution to
determine whether the minor has consumed or possessed alcoholic liquor. A
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person less than 21 years of age who refuses to submit to a preliminary chemical
breath test analysis as required in this subsection is responsible for a state civil
infraction and may be ordered to pay a civil fine of not more than $ 100.00.
Bay City defended its ordinance against a claim that it violated the Fourth Amendment by
asserting “that the so-called ‘special needs’ exception excuses the requirement for a search
warrant, and the searches are reasonable because they are based on reasonable suspicion.” Id. at
939. The Spencer court disagreed, concluding that
[t]here is nothing “special” in the need of law enforcement to detect evidence of
ordinary criminal wrongdoing; even where crime is on the rise and the disorder
and insecurity caused by criminal behavior in a community is grave, the Supreme
Court has consistently held that “the gravity of the threat alone cannot be
dispositive of questions concerning what means law enforcement officers may
employ to pursue a given purpose.” City of Indianapolis v. Edmond, 531 U.S. 32,
42, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). “Where a search is undertaken by
law enforcement officials to discover evidence of criminal wrongdoing, th[e
Supreme] Court has said that reasonableness generally requires the obtaining of a
judicial warrant.” Vernonia School Dist [47J v Acton], 515 U.S. [646, 653], 115
S.Ct. 2386 [132 L Ed 2d 564 (1995)]. [Spencer, 292 F Supp 2d at 941.]
Moreover, as the Spencer court explained, the “Supreme Court made clear . . . that laudable, noncriminal purposes of a law authorizing warrantless searches will not exempt the practice from the
traditional mandate of a warrant issued upon probable cause when an objective to gather
evidence also exists.” Id. at 942; see also Ferguson v City of Charleston, 532 US 67; 121 S Ct
1281; 149 L Ed 2d 205 (2001). The Spencer court concluded that “Bay City’s ordinance cannot
be justified under the ‘special needs’ exception to the requirement that a search of a person,
including a search and seizure of breath samples, must be authorized by a judicial officer through
the search warrant process.” Spencer, 292 F Supp 2d at 942.
Bay City had also argued that “the warrantless searches called for by the ordinance are
justified by exigent circumstances, due to the length of time required in Bay City to obtain a
search warrant for breath samples.” Id. at 939. However, the Spencer court found that exigent
circumstances must be considered on a case-by-case basis because the “time necessary to obtain
a warrant in cases that fall within the scope of the ordinance does not create an exigency as a
matter of legislative fact, nor does it serve to establish an automatic exemption from the warrant
requirement.” Id. at 944.
In Platte, 504 F Supp 2d at 230-231, the federal district court considered MCL
436.1703(6), which provides:
A peace officer who has reasonable cause to believe a minor has
consumed alcoholic liquor or has any bodily alcohol content may require the
person to submit to a preliminary chemical breath analysis. A peace officer may
arrest a person based in whole or in part upon the results of a preliminary
chemical breath analysis. The results of a preliminary chemical breath analysis or
other acceptable blood alcohol test are admissible in a criminal prosecution to
determine whether the minor has consumed or possessed alcoholic liquor or had
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any bodily alcohol content. A minor who refuses to submit to a preliminary
chemical breath test analysis as required in this subsection is responsible for a
state civil infraction and may be ordered to pay a civil fine of not more than
$100.00.
In Platte, several plaintiffs brought claims under 42 USC 1983 against Thomas Township and
other municipalities, as well as the Governor of Michigan and the director of the Michigan State
Police, arguing that MCL 436.1703(6) was “unconstitutional insofar as it authorized police
officers to compel minors to submit to breath tests for alcohol in the absence of a warrant or
circumstances excusing the requirement of a search warrant.” Platte, 504 F Supp 2d at 230. In
response, the defendants argued, as does the City in the case at bar, “that the statute is
constitutional on its face because warrantless searches pursuant thereto can be justified on the
basis of exigent circumstances and special needs.” Id. at 231.
Relying on Spencer and Skinner v Railway Labor Executives’ Ass’n, 489 US 602, 616617; 109 S Ct 1402; 103 L Ed 2d 639 (1989), the Platte court observed that “‘[i]t is well
established that the taking of a breath sample to test for the presence of alcohol constitutes a
search under the Fourth Amendment. As such, the search must be reasonable.’” Platte, 504 F
Supp 2d at 236 (citations omitted). Regarding the plaintiffs’ facial challenge to MCL
436.1703(6), the Platte court explained that “the text and context of the statute must be examined
to determine if it can be construed in such a way that an unconstitutional interpretation can be
avoided, or, on the other hand, whether the statute’s plain language authorizes unconstitutional
conduct on the part of the government.” Id. at 238.
The Platte court went on to observe that MCL 436.1703(6)
plainly does not require the police officer to obtain a warrant before taking a
breath sample from a minor . . . . There is no dispute that there is a preference
expressed in the Fourth Amendment that searches, to be reasonable, be sanctioned
by the issuance of a warrant by a neutral and detached judicial officer. Nor does
the statute require that any of the recognized exceptions to the warrant
requirement exist before the police officer compels a minor to submit to a breath
test. [Id. (citation omitted).]
Although the defendants in Platte argued that the “exigent circumstances” exception to the
search warrant requirement should apply, as did Bay City in Spencer, the Platte court explained
that
to say that there are some circumstances under which breath samples can be taken
from minors in a constitutional way does little to answer the question whether the
statute itself is constitutional, when the statute allows searches and seizures absent
the condition of a warrant or an excuse for proceeding without one. [Id.
(emphasis added).]
One of the defendants in Platte contended that “exigent circumstances always exist as a
matter of law because search warrants cannot be obtained before a teenager’s blood alcohol
content dissipates. Therefore, . . . the statute is valid and the procedures employed by [the]
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officers thereunder are constitutional.” Id. at 241. Again, the court rejected the “exigent
circumstances” argument, explaining that it
ignores the general rule that in the criminal context, warrantless searches are
presumptively unreasonable; the government bears the burden of establishing an
exception to the warrant requirement in the case at hand; the resulting
reasonableness vel non of the search must turn on the facts of each case; and
blanket exceptions to the warrant requirement are disfavored. [Id. at 241-242
(citations omitted).]
The Platte court concluded that the defendant in question had “not demonstrated that [MCL]
436.1703(6) can survive constitutional challenge by means of a blanket exigent circumstances
exception to the Warrant Clause of the Fourth Amendment . . . .” Id. at 245.
With respect to the defendants’ “special needs” argument, the Platte court stated that the
“Supreme Court has held that some searches can be reasonable absent both a warrant and exigent
circumstances, specifically ‘when “special needs, beyond the normal need for law enforcement,
make the warrant and probable-cause requirement impracticable.”’” Id. at 238 (citations
omitted). Referring to the decision in Spencer, 292 F Supp 2d at 939-941, the Platte court
observed, “It is enough to note that the weight of authority relegates the ‘special needs’
exception to non-criminal governmental activity.” Platte, 504 F Supp at 239. The court
concluded that MCL 436.1703(6) “‘endorses procedures to authorize a search that clearly do not
comport with the Fourth Amendment’” and therefore that the statute “is unconstitutional on its
face.” Id. (citation omitted).3
The decisions in Spencer and Platte are both well reasoned and consistent with existing
Fourth Amendment law. Accordingly, we find Spencer and Platte to be persuasive, see Abela,
469 Mich at 607, and conclude that Troy Ordinance § 98.10.03 is unconstitutional on its face.
Moreover, we agree with the Spencer court that “[t]here is nothing ‘special’ in the need of law
enforcement to detect evidence of ordinary criminal wrongdoing” and that “‘reasonableness
generally requires the obtaining of a judicial warrant.’” Spencer, 292 F Supp 2d at 941 (citation
omitted). The “special needs” exception to the search warrant requirement is quite simply not
applicable on the facts of this case. See id. at 941-942.
3
The Platte court was “not prepared to conclude as a matter of law that the offense of minor in
possession of alcohol is so insignificant a transgression that warrantless searches can never be
conducted to gather evidence of this crime. If officers must act so quickly to prevent the
immediate destruction of evidence that they cannot obtain a search warrant within the time it
would reasonably take to procure one, then administration of a PBT without a warrant may be
consistent with the Fourth Amendment . . . .” [Platte, 504 F Supp at 246 (emphasis deleted).]
The Platte court noted that, on the specific facts of that case, there remained “fact questions on
the material issue of whether exigent circumstances existed.” Id.
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B
The City argues that even if Troy Ordinance § 98.10.03 is unconstitutional on its face, the
district and circuit court decisions should still be reversed because defendant’s Fourth
Amendment rights were not violated. Specifically, the City argues that the PBT did not
constitute a search within the meaning of the Fourth Amendment and that when the police asked
defendant to submit to the PBT, he consented. In addition, the City contends that even if the
PBT was a search, the likely dissipation of defendant’s bodily alcohol content was an exigency
that justified the warrantless search in this case.
As an initial matter, we disagree with the City’s contention that because a PBT is
different and less intrusive than a Breathalyzer test, it is not a search for purposes of the Fourth
Amendment. “A search within the meaning of the Fourth Amendment ‘occurs when an
expectation of privacy that society is prepared to consider reasonable is infringed.’” Jones, 279
Mich App at 91, quoting United States v Jacobsen, 466 US 109, 113; 104 S Ct 1652; 80 L Ed 2d
85 (1984). “Because the Fourth Amendment protects people, as opposed to places or areas, . . . a
search for purposes of the Fourth Amendment occurs when the government intrudes on an
individual’s reasonable, or justifiable, expectation of privacy.” People v Taylor, 253 Mich App
399, 404; 655 NW2d 291 (2002). “Indeed, what an individual ‘“seeks to preserve as private,
even in an area accessible to the public, may be constitutionally protected.”’” Id., quoting
People v Clark, 133 Mich App 619, 625; 350 NW2d 754 (1983), in turn quoting Katz v United
States, 389 US 347, 351-352; 88 S Ct 507; 19 L Ed 2d 576 (1967).
As discussed previously, the Spencer court held that a PBT was a search under the Fourth
Amendment: “It is well established that the taking of a breath sample to test for the presence of
alcohol constitutes a search under the Fourth Amendment. As such, the search must be
reasonable.” Spencer, 292 F Supp 2d at 939. Other courts have also held that breath tests
constitute searches for Fourth Amendment purposes. See, e.g., State v McGuigan, 184 Vt 441,
447-448; 965 A2d 511 (2008); Milwaukee Co v Proegler, 95 Wis 2d 614, 623; 291 NW2d 608
(Wis App, 1980). Indeed, the United States Supreme Court has held that although breath and
urine tests for alcohol may be less intrusive than blood tests,4 they nonetheless rise to the level of
searches within the meaning of the Fourth Amendment. Skinner, 489 US at 616-617. On the
basis of this authority, we have no difficulty concluding that the PBT administered to defendant
in this case constituted a search under the Fourth Amendment.
Nor can we agree with the City’s argument that defendant consented to the PBT and that
a search warrant was consequently not required. “To validate an otherwise unreasonable search
or seizure, . . . consent must be unequivocal, specific, and freely and intelligently given.”
4
It is true, as the City notes, that the United States Supreme Court in Skinner found breath tests
to be less intrusive than blood tests. Skinner, 489 US at 625-626. But this conclusion was in the
context of a broader holding that chemical tests administered to railroad employees for safety
reasons—and not for the purpose of ordinary crime detection—met the “special needs” exception
to the search warrant requirement. See id. at 633-634. As discussed previously, the “special
needs” exception is inapplicable to law enforcement’s desire to detect evidence of ordinary
criminal wrongdoing, such as in the case at bar. Spencer, 292 F Supp 2d at 941.
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Dagwan, 269 Mich App at 342. “Consent [to search] is not voluntary if it is the result of
coercion or duress.” People v Bolduc, 263 Mich App 430, 440; 688 NW2d 316 (2004).
“‘When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he
has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden
cannot be discharged by showing no more than acquiescence to a claim of lawful authority.’”
Farrow, 461 Mich at 208 (citation omitted).
[K]nowledge of the right to refuse consent is not a prerequisite to effective
consent. Rather, knowledge of the right to refuse is but one factor to consider in
determining whether consent was voluntary under the totality of the
circumstances. However, . . . the people need not prove that the person giving
consent knew of the right to withhold consent. [People v Borchard-Ruhland, 460
Mich 278, 294; 597 NW2d 1 (1999) (citations omitted).]
In the case at bar, the district court did not address the issue of consent, which generally
presents a question of fact and normally involves credibility determinations. Nonetheless, it is
clear from the record that defendant was never asked for his consent. Although there was
conflicting testimony regarding which officer administered certain of the PBTs in this case, both
officers testified that they did not ask defendant and the other young adults for their consent.
Defendant testified, as did the others, that he had not consented to the PBT and that he had felt as
though he had no choice in the matter. Indeed, defendant testified that he believed that he would
go to jail if he refused to submit to the PBT.5 Defendant also testified that one officer “was
really aggressive and intimidating. I didn’t want to say anything to tick him off.” Even one of
the officers admitted that he was “pretty sure it was implied [that the young adults] were not able
to leave until I finished the investigation.”
The record plainly establishes that defendant was never asked for his consent and did not
give his consent at any time. The City does not cite any caselaw to suggest that a mere failure to
object to a proposed search constitutes actual consent. Nor could the City do so, as no such
authority exists. Indeed, as noted earlier, the prosecution bears the burden of proving that
consent to search was freely and voluntarily given. Farrow, 461 Mich at 208. “‘This burden
cannot be discharged by showing no more than acquiescence to a claim of lawful authority.’” Id.
(citation omitted). Defendant did not consent to the police officers’ administration of the PBT in
this case.
Lastly, we disagree with the City’s argument that there were exigent circumstances that
precluded the need for a search warrant in the present case. The City asserts that because the
Troy police were dealing with a group of several young adults, it would have taken too long to
5
According to the testimony of certain witnesses, one of the officers had stated that anyone who
refused to take the PBT would go to jail. Other witnesses testified somewhat differently.
However, even these other witnesses testified that the officer had told them that if they refused to
take the PBT, he would “take us to the station” or to “the police station.” One witness testified
that although he could not recall the exact words used by the officer, he had assumed that he
would go to jail if he refused to take the PBT.
-9-
secure search warrants authorizing the administration of a PBT to each of the minors.
Specifically, the City asserts that during the time it would have taken to obtain search warrants,
the minors’ bodily alcohol content would have dissipated and any evidence of illegal alcohol
consumption would have been lost.
The existence of exigent circumstances must be considered on a case-by-case basis. The
“exigent circumstances” exception to the search warrant requirement provides that the police
may search without a warrant in cases of “‘actual emergency’” if there are “‘specific and
objective facts indicating that immediate action is necessary to (1) prevent the imminent
destruction of evidence, (2) protect the police officers or others, or (3) prevent the escape of a
suspect.’” People v Beuschlein, 245 Mich App 744, 749-750; 630 NW2d 921 (2001) (citation
omitted).
As in Platte, we perceive no exigencies in the case at bar that would have permitted a
PBT search without a valid search warrant. Similar to the City’s argument in this case, one of
the defendants in Platte complained of “the rapid rate of dissipation of alcohol in the
bloodstream compared to the time it takes its police officers to obtain a search warrant.” Platte,
504 F Supp 2d at 242. The Platte court found that the “record in this case . . . fails to establish
that the evidence sought ‘would probably be destroyed within the time necessary to obtain a
search warrant’ when measured against the time the . . . police officers loitered at the scene in
this case.” Id. (emphasis deleted; citation omitted). Moreover, while one of the police officers in
Platte testified that “a search warrant could be obtained . . . in an hour and fifteen minutes,” an
expert witness testified that “alcohol would not dissipate from the average male’s blood until two
hours and twenty minutes after consumption ceases; for an average female, dissipation would not
occur until three hours after consumption.” Id. at 243. The Platte court concluded that “the
record in this case establishes that the . . . police officers had time to request a search warrant to
take breath samples from [the defendants].” Id.
In the instant case, the City presented no evidence at the district court suppression
hearing to establish that the police officers could not have sought and obtained search warrants
before dissipation of the minors’ bodily alcohol content. Nor did the City present evidence of
any other exigent circumstances. In short, the City failed to substantiate its claim that “it would
have taken a long time to secure search warrants specifically authorizing the administration of a
PBT” to each of the young adults. The district court did not clearly err by declining to find the
existence of exigent circumstances in this case. See Farrow, 461 Mich at 209. No exigent
circumstances having been established, we conclude that the police were required to procure a
valid search warrant before administering the PBT to defendant.
C
The PBT administered to defendant in this case constituted a search within the meaning
of the Fourth Amendment, to which defendant did not consent. None of the exceptions to the
search warrant requirement applied, and the police officers were accordingly required to seek
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and obtain a valid search warrant before administering the PBT to defendant. The district court
did not err by ruling that Troy Ordinance § 98.10.03 is unconstitutional on its face or by
suppressing the evidence collected from defendant during the warrantless PBT search. Nor did
the circuit court err by denying the City’s application for leave to appeal.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Kathleen Jansen
/s/ Kurtis T. Wilder
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