PEOPLE OF WESTLAND V JOHN THOMAS KIRKEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE CITY OF WESTLAND,
UNPUBLISHED
July 26, 2002
Plaintiff-Appellant,
v
No. 239054
Wayne Circuit Court
LC No. 01-500089
JOHN THOMAS KIRKEY,
Defendant-Appellee.
Before: Gage, P.J., and Cavanagh and Wilder, JJ.
PER CURIAM.
The City of Westland appeals by leave granted from the circuit court’s order dismissing
several charges brought against defendant. We reverse.
Defendant was charged with operating a motor vehicle under the influence of intoxicating
liquor (OUIL), MCL 257.625(1)(a), having an unlawful blood alcohol level (UBAL), MCL
257.625(1)(b), and driving with a revoked license, MCL 257.904. Defendant filed a motion to
suppress evidence of his intoxicated state and to dismiss the complaint and warrant against him
on the basis that the police officer who had stopped him lacked reasonable suspicion to do so.
Following an evidentiary hearing, the district court denied defendant’s motions.
Defendant subsequently pleaded guilty of UBAL, conditioned on his preservation of the
right to appeal the propriety of the officer’s stop and search.1 On defendant’s appeal to the
circuit court, the court reversed the district court and ordered dismissal of the charges against
defendant.
The prosecution argues on appeal that the circuit court erred in reversing the district
court’s decision because a constitutional basis supported the arresting officer’s approach of
defendant at his residence. In considering a motion to suppress evidence, this Court reviews de
novo the trial court’s ultimate conclusions of law, but reviews the trial court’s factual findings to
determine if they are clearly erroneous. People v Snider, 239 Mich App 393, 406; 608 NW2d
502 (2000). Factual findings qualify as clearly erroneous if, after reviewing the record, this
1
The district court sentenced defendant to sixty days in jail and assessed fines and court costs.
Defendant posted bond pending appeal.
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Court is left with a definite and firm conviction that a mistake was made. People v Givans, 227
Mich App 113, 119; 575 NW2d 84 (1997).
Both the United States and the Michigan Constitutions prohibit unreasonable searches
and seizures. US Const, Am IV; Const 1963, art 1, § 11; Snider, supra. “A ‘seizure’ occurs
within the meaning of the Fourth Amendment if, in view of all the circumstances surrounding an
encounter with the police, a reasonable person would have believed that the person was not free
to leave.” People v Shankle, 227 Mich App 690, 693; 577 NW2d 471 (1998). The taking of
blood to determine alcohol content constitutes a search and seizure. People v BorchardRuhland, 460 Mich 278, 293; 597 NW2d 1 (1999). The reasonableness of a search depends on a
balancing of the need to search against the intrusion the search entails. People v Wallin, 172
Mich App 748, 750; 432 NW2d 427 (1988). An investigatory stop is reasonable if under the
totality of the circumstances, the police officer has a particularized suspicion, based on objective
observations, that the person stopped has been, is, or is about to be engaged in criminal activity.
People v Shields, 200 Mich App 554, 557; 504 NW2d 711 (1993).
City of Westland Police Officer Mark Cholak testified at the evidentiary hearing that he
had been dispatched “to sit on” an Alvin Street address because of an anonymous report that a
man living there usually drove home from work drunk on Fridays. Cholak observed defendant’s
pickup, which matched the vehicle description Cholak had received, approach defendant’s house
and pull into the driveway without incident. Cholak, who was in uniform, parked in the street,
and approached defendant in his driveway as defendant exited his pickup. Cholak advised
defendant why he was there and indicated that he would like to speak with defendant. Cholak
observed that defendant had glassy and red eyes, smelled of intoxicants, and slurred his speech.
We reject defendant’s suggestion that Cholak improperly approached him in the
driveway. It is not unconstitutional for a police officer, who possesses some information that he
believes warrants further investigation, to go to a private residence and engage in conversation
with another person. People v Frohriep, 247 Mich App 692, 697; 637 NW2d 562 (2001). The
mere fact that an officer initiates contact with a citizen on private property does not implicate
constitutional protections. Id. at 698; Shankle, supra at 693-694. “It is unreasonable to think
that simply because one is at home that they are free from having the police come to their house
and initiate a conversation.” Frohriep, supra at 698.
However, the “knock and talk” procedure must comply with general constitutional
protections. If an officer initiates the “knock and talk” procedure, the subject must feel free to
leave and the consent to search must not be forced when viewed in the context of the
circumstances. Id. In this case, no indication exists that defendant did not feel free to leave or
that Cholak pressured or coerced defendant to speak with him. We note Cholak’s testimony that
had defendant walked away into his house, Cholak “wouldn’t have stopped him.” Officer
Cholak merely initiated a conversation with defendant, and if defendant was willing to listen or
offer voluntary answers, this was not a violation of constitutional protections. Frohriep, supra at
697-698; see also People v Shabaz, 424 Mich 42, 56-57; 378 NW2d 451 (1985) (noting that the
police do not violate constitutional rights merely be approaching and speaking with someone in a
public place). Thus, Officer Cholak was lawfully in the driveway when he spoke with defendant.
Furthermore, (1) Cholak’s lawful detections of defendant’s red and glassy eyes, odor of
intoxicants, and slurred speech, taken together with (2) the apparently accurate anonymous tip
the police had received, reasonably led Cholak to believe that defendant, whom Cholak had just
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observed driving a vehicle on a public road, had violated MCL 257.625. People v Levine, 461
Mich 172, 184-185; 600 NW2d 622 (1999); People v Ulman, 244 Mich App 500, 509-510; 625
NW2d 429 (2001). Accordingly, Cholak properly detained defendant for sobriety and
Breathalyzer testing, and ultimately for arrest. MCL 764.15(1)(a).
Defendant relies on Florida v J L, 529 US 266; 120 S Ct 1375; 146 L Ed 2d 254 (2000),
which we find factually distinguishable from the instant case. In Florida v J L, an anonymous
caller reported to the police that a young black male wearing a plaid shirt was carrying a gun at a
particular bus stop. The police arrived at the bus stop and saw a young black male wearing a
plaid shirt. The officers had no reason other than the tip to suspect illegal conduct, but searched
the man and found a gun in his pocket. Id. at 268. The United States Supreme Court held that
the anonymous tip alone, which “lacked [even] moderate indicia of reliability,” did not constitute
reasonable suspicion justifying the police officers’ stop and frisk of the suspect. Id. at 271, 274.
In the instant case, probable cause rested not only on an anonymous tip regarding defendant’s
weekly drinking and driving, but also on Cholak’s own lawful observations of defendant’s
apparently intoxicated condition while driving.
We conclude that the circuit court erred in granting defendant’s motion to suppress and
dismissing the charges against defendant on the basis of its erroneous finding that Cholak lacked
probable cause to detain defendant.
We reverse and remand for further proceedings not inconsistent with this opinion. We do
not retain jurisdiction.
/s/ Hilda R. Gage
/s/ Mark J. Cavanagh
/s/ Kurtis T. Wilder
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