PEOPLE OF MI V KENNETH DEWAYNE ROBERTS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 28, 2010
Plaintiff-Appellant,
v
No. 290094
Ingham Circuit Court
LC No. 08-000838-FH
KENNETH DEWAYNE ROBERTS,
Defendant-Appellee.
Before: FORT HOOD, P.J., AND BORRELLO AND STEPHENS, JJ.
STEPHENS, J. (dissenting).
I would remand this matter for an evidentiary hearing to determine whether defendant
was lawfully detained at the time the firearm was discovered in his car.
As the majority states, conflicting evidence was presented below regarding the
circumstances surrounding defendant's detention, including the timing of the detention and the
type of the confinement. The trial court did not resolve the inconsistencies nor did it make any
determinations regarding the credibility of the various witnesses. These unresolved issues
control whether the detention was lawful under the standards set forth in Terry v Ohio, 392 US 1,
22; 88 S Ct 1868; 20 L Ed 2d 889 (1968). I disagree with the majority’s conclusion that the
legality of the detention in this case is irrelevant in determining whether the exclusionary rule
applies. As the majority recognizes, “The exclusionary rule is a harsh remedy designed to
sanction and deter police misconduct where it has resulted in a violation of constitutional rights”
and “should be used only as a last resort.” People v Frazier, 478 Mich 231, 247; 733 NW2d 713
(2007) (quotations and citations omitted). “It is only when an ‘unlawful detention has been
employed as a tool to procure any type of evidence from a detainee’ that the evidence is
suppressed under the exclusionary rule.” People v Kelly, 231 Mich App 627, 634; 588 NW2d
480 (1998), quoting People v Mallory, 421 Mich 229, 240-241, 243, n 8; 365 NW2d 673 (1984)
(emphasis in original). Here, defendant is arguing that the police asked his consent to search his
vehicle. When consent was denied, defendant was placed in custody, perhaps unlawfully. At
that point, the officers observed a firearm in the vehicle while they were waiting for a K-9 unit to
arrive. Based on those facts, it could certainly be concluded that an unlawful detention was
utilized for the purpose of obtaining the evidence in question. Consequently, it would be proper
to apply the exclusionary rule.
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Likewise, if the detention was unlawful, the plain view doctrine would not apply. “The
plain view doctrine allows police officers to seize, without a warrant, items in plain view if the
officers are lawfully in a position from which they view the item, and if the item's incriminating
character is immediately apparent.” People v Champion, 452 Mich 92, 101; 549 NW2d 849
(1996). In the present case, whether the officers were in a lawful position is dependent upon the
legality of the detention. If the detention was unlawful, the officers were only in a position to
discover the evidence directly because of their improper conduct. Conversely, if the detention
was lawful the plain view doctrine renders the search constitutional.
Finally, I disagree with the majority’s reliance on the inevitable discovery doctrine. The
majority correctly explains that exclusion is unnecessary if discovery of the evidence was
inevitable despite the unconstitutional conduct. People v Stevens (After Remand), 460 Mich 626,
637; 597 NW2d 53 (1999). If defendant was improperly detained, it follows that discovery was
not inevitable. As explained above, the firearm was not discovered until after defendant was
detained. Had defendant not been detained, the record demonstrates that defendant would have
departed from the scene and the officers would not have had the opportunity to discover the
evidence.
Because I conclude that each of the prosecution’s theories of admissibility are dependent
on the legality of the detention, I would remand this matter for an additional hearing to determine
the circumstances surrounding the decision to place defendant in custody and the nature of the
detention. I would direct the trial court to exclude the evidence if it is determined that the
detention was unlawful.
/s/ Cynthia Diane Stephens
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