PEOPLE OF MI V REGINAL LAVAL SHORT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
August 26, 2010
9:10 a.m.
Plaintiff-Appellee,
v
No. 292288
Saginaw Circuit Court
LC No. 09-032100-FH
REGINAL LAVAL SHORT, also known as
REGINALD LAVAL SHORT,
Defendant-Appellant.
Before: MURRAY, P.J., and SAAD and M.J. KELLY, JJ.
SAAD, J.
The prosecutor charged defendant with carrying a dangerous weapon with unlawful
intent, MCL 750.226, felon in possession of a firearm, MCL 750.224f, carrying a concealed
weapon, MCL 750.227, and possession of a firearm during the commission of a felony (two
counts), MCL 750.227b. Defendant appeals by leave granted from the trial court’s order that
denied his motion to suppress evidence. We affirm.
I. NATURE OF THE CASE AND ISSUE OF FIRST IMPRESSION
A disputed search of defendant’s vehicle after defendant was arrested and placed in the
back of a police car raises a Fourth Amendment issue of first impression under Michigan law left
unresolved by our Court’s recent opinion in People v Mungo, ___ Mich App ___; ___ NW2d
___ (2010). In light of the United States Supreme Court’s decision in Arizona v Gant, 556 US
__, 129 S Ct 1710, 173 L Ed 2d 485 (2009), which abrogated the well-established rule in New
York v Belton, 453 US 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981) and its progeny, we must
consider whether an officer’s good faith reliance on case law that is later overturned may form a
proper basis to avoid the operation of the exclusionary rule. For the reasons explained below,
and pursuant to the reasoning and rationale of rulings from the Tenth and Eleventh federal
circuits, we hold that the good faith exception applies and the trial court correctly denied
defendant’s motion to suppress.
II. FACTS AND PROCEEDINGS
Michigan State Police Trooper Jasen Sack testified at the hearing on defendant’s motion
to suppress evidence of two weapons found in his vehicle. Trooper Sack testified that, on
January 13, 2009, at around midnight, he observed defendant’s vehicle traveling west on Webber
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Street in Saginaw. As defendant turned north onto Maplewood Avenue, Trooper Sack noticed
that defendant’s vehicle did not have a license plate. Trooper Sack and his partner turned around
in their patrol car to pursue defendant’s vehicle. As defendant pulled into the parking lot of a
convenience store and parked his car, Trooper Sack followed and activated the patrol car’s
flashing lights. Trooper Sack stopped his patrol car approximately 10 to 15 feet away from
defendant’s vehicle. According to Trooper Sack, defendant stepped out of his vehicle, Trooper
Sack alighted from his patrol car, and defendant began to walk toward the troopers. Trooper
Sack asked defendant about his license plate and defendant said he did not have one. Trooper
Sack testified that, because defendant also stated that he did not have a driver’s license or
insurance, Trooper Sack placed defendant under arrest for driving with no operator’s license and
no insurance. Trooper Sack handcuffed defendant and placed him in the back of the patrol car.
Defendant offered testimony similar to Trooper Sack’s except, according to defendant, he
had exited his vehicle and was walking toward the entrance of the convenience store when he
noticed that the troopers had followed him into the parking lot. Defendant further testified that
the troopers asked him to come towards them and, after answering some questions about his
license and insurance, he was arrested and placed in the back of the patrol car. It is undisputed
that Trooper Sack searched defendant’s vehicle after defendant was handcuffed and placed inside
the patrol car. As he searched the inside of defendant’s car, Trooper Sack found a rifle with a cut
stock, a .223 caliber assault rifle, and four or five ammunition magazines.
Defendant filed a motion to suppress evidence of the weapons found in his car on the
ground that the search of his vehicle violated his Fourth Amendment rights. Defendant also
sought to suppress evidence obtained during a subsequent search of his home. After taking
testimony from Trooper Sack and defendant on April 21, 2009, the trial court denied defendant’s
motion to suppress. The court ruled that the search of defendant’s vehicle was constitutional
pursuant to Belton, 453 US 454 and Thornton v United States, 541 US 615, 632; 124 S Ct 2127;
158 L Ed 2d 905 (2004). On the day of the suppression hearing, the United States Supreme
Court decided Gant, 556 US __, 129 S Ct 1710, which, in essence, narrowed the application of
Belton. The trial court reconsidered defendant’s motion to suppress, but again denied the motion
on the ground that, while the search may have been unconstitutional under Gant, when they
conducted the search the troopers acted reasonably and in good faith based on Belton.
Accordingly, the trial court applied the good faith exception to the exclusionary rule and
declined to suppress the evidence.
III. ANALYSIS
Defendant argues that Gant applies retroactively, the search of his vehicle was
unconstitutional pursuant to Gant, and the trial court should not have applied the good faith
exception to the exclusionary rule because the exception does not or ought not to apply to
warrantless searches under Michigan law. The prosecutor acknowledges that Gant applies
retroactively to this case and that, pursuant to Gant, the search of defendant’s vehicle violated his
Fourth Amendment rights. However, the prosecutor argues that, because Trooper Sack relied on
the long-standing rule in Belton and its progeny that he could conduct a search of the vehicle
incident to defendant’s arrest, the trial court correctly applied the good faith exception.
As this Court explained in People v Hyde, 285 Mich App 428, 436; 775 NW2d
833 (2009), “[w]e review for clear error a trial court’s findings of fact in a suppression hearing,
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but we review de novo its ultimate decision on a motion to suppress.” This Court also reviews
de novo whether an exclusionary rule applies. Id.
The parties are correct that, pursuant to the Supreme Court’s holding in Gant, the search
of defendant’s vehicle was unconstitutional. Under Belton and its progeny, it was lawful for an
officer to search a vehicle “incident to the arrest of a recent occupant even if there is no
possibility the arrestee could gain access to the vehicle at the time of the search.” Gant, 129 S Ct
at 1718. However, the Court in Gant rejected this widely-accepted reading of Belton, and ruled
that, pursuant to Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969), police
may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured
and within reaching distance of the passenger compartment at the time of the search.” Gant, 129
S Ct at 1719. A vehicle search is also permissible if it is “‘reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle.’” Gant, 129 S Ct at 1719, quoting
Thornton, 541 US at 632 (Scalia, J., concurring in judgment). Again, defendant was handcuffed
and secured in the back of the police car when Trooper Sack conducted the search. Also,
defendant was arrested for operating a vehicle without a license and without insurance, so the
officers could not reasonably expect to find evidence related to the reason for defendant’s arrest
inside the vehicle. Accordingly, the search of defendant’s vehicle violated the Fourth
Amendment as interpreted in Gant.
The parties are also correct that Gant applies retroactively to this case pursuant to Griffith
v Kentucky, 479 US 314, 328; 107 S Ct 708, 93 L Ed 2d 649 (1987) (“a new rule for the conduct
of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on
direct review or not yet final, with no exception for cases in which the new rule constitutes a
‘clear break’ with the past.”). Though Gant was decided well after defendant’s arrest and the
vehicle search, the case was pending in the trial court when the Supreme Court issued its opinion
and, thus, the holding in Gant applies. However, retroactive application of Gant does not
necessarily require suppression of the disputed evidence. “[W]hether the exclusion of evidence
is an appropriate sanction in a particular case is a separate issue from whether police misconduct
violated a person’s Fourth Amendment rights.” People v Goldston, 470 Mich 523, 529; 682
NW2d 479 (2004). When there has been a violation of a defendant’s Fourth Amendment rights,
the exclusionary rule generally bars the use of the disputed evidence at trial, People v Mungo,
___ Mich App ___, slip op at 5, citing United States v Leon, 468 US 897, 906; 104 S Ct 3405; 82
L Ed 2d 677 (1984), but our courts have also recognized that exclusion is not an automatic
remedy for an unlawful search. As the Mungo Court explained:
The purpose of the exclusionary rule is to deter police misconduct. [Leon,
468 US at 906.] In Leon, the United States Supreme Court established a goodfaith exception to the exclusionary rule, noting that application of the
exclusionary rule requires weighing the benefits of the resulting deterrence of
police misconduct against the costs incurred by preventing the introduction of
otherwise valid evidence. Id. at 906-907. The Leon Court concluded that
circumstances could exist in which these costs could outweigh any slight benefits
gained by application of the exclusionary rule. For example, if a law enforcement
officer acted in good faith and in an objectively reasonable manner on a search
warrant later found to be defective due to judicial error, excluding the evidence
obtained in the search would not operate to deter police misconduct. Id. at 920-3-
921. The Leon Court concluded that the exclusionary rule should be applied on a
case-by-case basis, and only if application would deter police misconduct. Id. at
918. [Mungo, ___ Mich App ___, slip op at 5.]
Contrary to defendant’s position on appeal, this Court has rejected the view “that the
retroactivity doctrine precludes application of the good faith exception to the exclusionary rule.”
Mungo, ___ Mich App ___, slip op at 8. Indeed, the fact that Gant may apply retroactively
“does not inevitably lead to the conclusion that the good-faith exception cannot be considered to
determine the appropriate remedy.” Id., quoting People v Key, ___ P3d ___; 2010 WL 961646
(Colo App, 2010).
The question of first impression here is whether case law may form the basis of an
officer’s good faith reliance to avoid exclusion of the disputed evidence at trial. The Sixth
Circuit has not ruled on this question, and the federal district courts in Michigan disagree on the
matter. See United States v Schuttpelz, 2010 WL 200827 (ED Mich, 2010) (even if the search
would have violated Gant, Belton “was the law of the land” at the time of the search and the
good faith exception applies); United States v Peoples, 668 F Supp 2d 1042 (WD Mich, 2009)
(will not extend the good faith exception to include an officer’s good faith reliance on existing
case law). This Court discussed, but did not decide this question in Mungo, ___ Mich App ___,
slip op at 9:
Whether reliance on case law can form a basis to invoke the good faith
exception to the exclusionary rule is a significant legal question. The United
States Supreme Court is silent on this issue. The Sixth Circuit and Tenth Circuit
federal courts of appeal have expanded the good faith exception to apply to a law
enforcement officer’s reliance on case law. In [United States v McCane, 573 F3d
1037 (CA 10, 2009)] and similarly in [United States v Lopez, ___ F Supp 2d ___
(Ed Ky, 2009)], however, it was the clear and established law of the circuit that
law enforcement officers were vested with the right to search a vehicle incident to
a recent occupant's arrest. McCane, 573 F3d at 1041-1042 (citing several Tenth
Circuit opinions upholding searches without regard to the nature of the offense
and where the defendant was already restrained); Lopez III, --- F Supp 2d at ---(“Like its sister circuits prior to Gant, the Sixth Circuit recognized as lawful under
Belton searches of vehicles conducted incident to an arrest even in circumstances
where the arrestee did not have access to the passenger compartment of his car.”).
See also [United States v Grote, 629 F Supp 2d 1201, 1205 (ED Wa, 2009)]
(noting that at the time the defendant’s vehicle was searched it was “well accepted
in the Ninth Circuit and elsewhere” that police could search a motor vehicle
incident to a lawful arrest, “without regard to whether an arrestee was secured or
unsecured, and without regard to whether evidence particular to the crime of
arrest might be found in the vehicle.”).
Notwithstanding its acknowledgement of the probability that the good faith exception can be
premised on an officer’s reliance on existing case law in Michigan, the Court in Mungo declined
to rule on the question because Mungo involved an issue of first impression about whether the
rule in Belton could be extended “to a vehicle search solely incident to a passenger’s arrest.”
Mungo, ___ Mich App ___, slip op at 9 (emphasis added). The Mungo Court explained:
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Given our conclusion that the law in this state on this point was not
established and clear, the search and seizure of evidence from defendant’s vehicle
could not, as a matter of law, have been premised on law enforcement's good-faith
reliance on case law. We therefore conclude that the good faith exception to the
exclusionary rule has no application in the present case. [Id.]
In contrast, when the troopers searched defendant’s vehicle in this case, the law in this state and,
indeed, throughout the country, was well-established and abundantly clear: Under Belton and its
progeny, the search of defendant’s vehicle was lawful incident to defendant’s arrest.
At the time Trooper Sack acted, the validity of the search was clearly supported by settled
case law that was subsequently abrogated by Gant. Again, the Court in Belton ruled that “when
a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger compartment of that automobile.”
Belton, 453 US at 461. In United States v White, 871 F2d 41, 44 (CA 6, 1989), the Sixth Circuit
Court of Appeals interpreted Belton to permit the search of a vehicle incident to an arrest “even
when the arrestee is out of reach of the car and its contents.” Indeed, the Court in White
specifically held, “in this Circuit, our consistent reading of Belton has been that, once a police
officer has effected a valid arrest, that officer can search the area that is or was within the
arrestee’s control.” Id.; see also, United States v Martin, 289 F3d 392 (CA 6, 2002). Trooper
Sack testified that he turned on the flashing lights of his patrol vehicle as he followed defendant
into the convenience store parking lot. As the Sixth Circuit opined in US v Hudgins, 52 F3d 115,
119 (CA 6, 1995), “Where the officer initiates contact with the defendant, either by actually
confronting the defendant or by signaling confrontation with the defendant, while the defendant
is still in the automobile, and the officer subsequently arrests the defendant (regardless of
whether the defendant has been removed from or has exited the automobile), a subsequent search
of the automobile’s passenger compartment falls within the scope of Belton and will be upheld as
reasonable.” And, though defendant maintains that he was away from his vehicle and walking
toward the convenience store when the troopers approached him, in Thornton, the Supreme
Court ruled that, as long as the arrestee was a recent occupant of the vehicle, an officer may
conduct a search of the vehicle “even when an officer does not make contact until the person
arrested has left the vehicle.” Thornton, 541 US at 617, 623-624. Thus, regardless of which
version of events is true, the search was clearly valid under case law existing at the time of the
search.
The majority in Gant recognized that “[Belton] has been widely understood to allow a
vehicle search incident to the arrest of a recent occupant even if there is no possibility the
arrestee could gain access to the vehicle at the time of the search.” Gant, 129 S Ct 1718. Indeed,
the Court observed that “reading Belton has been widely taught in police academies and . . . law
enforcement officers have relied on the rule in conducting vehicle searches during the past 28
years . . . .” Id. at 1722. Justice Breyer noted the “considerable reliance” on the “bright-line rule
that permits a warrantless search of the passenger compartment of an automobile incident to the
lawful arrest of an occupant―regardless of the danger the arrested individual in fact poses.” Id.
at 1725 (Breyer, J, dissenting). Justice Alito further opined:
The Belton rule has been taught to police officers for more than a quarter
century. Many searches―almost certainly including more than a few that figure
in cases now on appeal―were conducted in scrupulous reliance on that precedent.
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It is likely that, on the very day when this opinion is announced, numerous vehicle
searches will be conducted in good faith by police officers who were taught the
Belton rule. [Id. at 1728 (Alito, J, dissenting).]
Thus, it is beyond dispute that, before Gant, it was broadly understood that the precise actions
taken by Trooper Sack to search defendant’s vehicle were constitutionally sound.
Again, “[t]he purpose of the exclusionary rule is to deter police misconduct.” Goldston,
470 Mich at 526. Courts have long-recognized that, “where the officer’s conduct is objectively
reasonable, ‘excluding the evidence will not further the ends of the exclusionary rule in any
appreciable way; for it is painfully apparent that . . . the officer is acting as a reasonable officer
would and should act in similar circumstances.’” Leon, 468 US at 919-920, quoting Stone v
Powell, 428 US 465, 539-540; 96 S Ct 3037; 49 L Ed 2d 1067 (1976) (White, J, dissenting). As
this Court recently explained in Mungo:
[A]pplication of the exclusionary rule requires weighing the benefits of the
resulting deterrence of police misconduct against the costs incurred by preventing
the introduction of otherwise valid evidence. [Leon, 468 US] at 906-907. The
Leon Court concluded that circumstances could exist in which these costs could
outweigh any slight benefits gained by application of the exclusionary rule. For
example, if a law enforcement officer acted in good faith and in an objectively
reasonable manner on a search warrant later found to be defective due to judicial
error, excluding the evidence obtained in the search would not operate to deter
police misconduct. Id. at 920-921. The Leon Court concluded that the
exclusionary rule should be applied on a case-by-case basis, and only if
application would deter police misconduct. [Mungo, ___ Mich App ___, slip op
at 5.]
Excluding the evidence in this case does nothing to “remov[e] incentives to engage in
unreasonable searches and seizures.” Goldston, 470 Mich at 529. In light of the overwhelming
majority of cases that have explicitly approved conduct identical to that of the trooper in this
case, we hold that the trial court properly applied the good faith exception to the exclusionary
rule. Indeed, “[t]he lack of deterrence likely to result from excluding evidence from searches
done in good-faith reliance upon settled circuit precedent indicates the good-faith exception
should apply in this context.” United States v McCane, 573 F3d 1037, 1044 n 5 (CA 10, 2009).
Accordingly, we agree with and adopt the reasoning of the United States Court of Appeals for
the Tenth Circuit in McCane, 573 F3d at 1044-1045:
Two inseparable principles have emerged from the Supreme Court cases
and each builds upon the underlying purpose of the exclusionary rule: deterrence.
First, the exclusionary rule seeks to deter objectively unreasonable police conduct,
i.e., conduct which an officer knows or should know violates the Fourth
Amendment. See, e.g., [Herring v United States, ___US___, 129 S Ct 695, 70104, 172 L Ed 2d 496 (2009); Illinois v Krull, 480 US 340, 348-49; 107 S Ct 1160;
94 L Ed 2d 364 (1987).] Second, the purpose of the exclusionary rule is to deter
misconduct by law enforcement officers, not other entities, and even if it was
appropriate to consider the deterrent effect of the exclusionary rule on other
institutions, there would be no significant deterrent effect in excluding evidence
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based upon the mistakes of those uninvolved in or attenuated from law
enforcement. See, e.g., [Arizona v Evans, 514 US 1, 14-15; 115 S Ct 1185; 131 L
Ed 2d 34 (1995)]; Krull, 480 U.S. at 351-52; Leon, 468 US at 916-17. Based
upon these principles, we agree with the government that it would be proper for
this court to apply the good-faith exception to a search justified under the settled
case law of a United States Court of Appeals, but later rendered unconstitutional
by a Supreme Court decision.
Just as there is no misconduct on the part of a law enforcement officer
who reasonably relies upon the mistake of a court employee in entering data,
Evans, 514 US at 15, or the mistake of a legislature in passing a statute later
determined to be unconstitutional, Krull, 480 US at 349-50, a police officer who
undertakes a search in reasonable reliance upon the settled case law of a United
States Court of Appeals, even though the search is later deemed invalid by
Supreme Court decision, has not engaged in misconduct. The refrain in Leon and
the succession of Supreme Court good-faith cases is that the exclusionary rule
should not be applied to “objectively reasonable law enforcement activity.” 486
US at 919. Relying upon the settled case law of a United States Court of Appeals
certainly qualifies as objectively reasonable law enforcement behavior.
The Eleventh Circuit also recently ruled “that the exclusionary rule does not apply when the
police conduct a search in objectively reasonable reliance on our well-settled precedent, even if
that precedent is subsequently overturned.” United States v Davis, 598 F3d 1259, 1264 (CA 11,
2010).1 As the Court explained in Davis at 1265:
The [Supreme] Court has gradually expanded this good-faith exception to
accommodate objectively reasonable police reliance on: subsequently invalidated
search warrants, Leon, 468 US 897; subsequently invalidated statutes, Illinois v
Krull, 480 US 340; 107 S Ct 1160; 94 L Ed 2d 364 (1987); inaccurate court
records, Arizona v Evans, 514 US 1; 115 S Ct 1185; 131 L Ed 2d 34 (1995); and
negligently maintained police records, Herring, ___US___, 129 S Ct 695; 172 L
Ed 2d 496. In each of its decisions expanding the exception, the Court has
concluded that the unlawful police conduct at issue was neither “sufficiently
deliberate that exclusion [could] meaningfully deter it” nor “sufficiently culpable
that such deterrence [would be] worth the price paid by the justice system.”
Herring, 129 S Ct at 702.
As in Davis, Trooper Sack did not intentionally violate defendant’s rights and he “cannot be held
responsible for the unlawfulness of the search he conducted.” Davis, 598 F3d 1265. As
discussed, when he conducted the search, our courts adhered to the nearly universally accepted
1
As the court noted in Davis, 598 F3d at 1264 n 3, the Fifth Circuit ruled in 1987 that evidence
should not be excluded if an officer conducted a search in good faith reliance on case law from
that circuit even if the case law was subsequently overturned. United States v Jackson, 825 F2d
853 (CA 5, 1987).
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reading of Belton that an officer may search a vehicle incident to a lawful arrest. Law
enforcement officers are entitled to, and indeed must, rely on court decisions that define
appropriate police conduct and it is illogical to impose “the extreme sanction of exclusion” when
a clear rule of conduct is later abrograted by the Supreme Court. Leon, 468 US at 916.
Accordingly, though the well-settled interpretation of Belton was subsequently changed by Gant,
because it was objectively reasonable for Trooper Sack to rely on that precedent, the good faith
exception to the exclusionary rule applies and the trial court correctly denied defendant’s motion
to suppress.
Affirmed.
/s/ Henry William Saad
/s/ Christopher M. Murray
/s/ Michael J. Kelly
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