People of Michigan v. Tremell C Mathews

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

September 2, 2021

Plaintiff-Appellant,

v No. 348155

Wayne Circuit Court

TREMELL C. MATHEWS, LC No. 18-008966-01-FH

Defendant-Appellee.

Before: TUKEL, P.J., and SERVITTO and BECKERING, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court’s order granting defendant’s motion to suppress

evidence and dismissing the charges of possession of a controlled substance less than 25 grams,

MCL 333.7403(2)(a)(v), and possession of marihuana, MCL 333.7403(2)(d). We affirm.

FACTS

On September 20, 2108, Detroit Police Officer Michael Bailey was driving a patrol car,

with Officers Yossif Mana and Antoine Hill as passengers, when he saw defendant run a red

light in the city of Detroit. Officer Bailey initiated a traffic stop and, upon speaking to

defendant, was told that defendant did not have a driver’s license and that he did not have

insurance for the vehicle he was driving. Officer Bailey had defendant step out of the vehicle

and patted him down. He searched defendant a second time, finding several lottery tickets

in defendant’s pants pocket. Officer Bailey returned the tickets to defendant’s pocket and then

instructed defendant to stand in front of the patrol car’s dashboard camera (dashcam).

Defendant, who was not handcuffed or physically restrained in any way, complied, and Officer

Hill stood near defendant at the patrol car. Officer Bailey then proceeded to search defendant’s

vehicle.

During his search, Officer Bailey found four folded lottery tickets that contained suspected

heroin under the vehicle’s headliner where it met the windshield. Officer Bailey then instructed

Officer Mana to search defendant again. During his search of defendant, Officer Mana found

a bag of marijuana and a bag of heroin in defendant’s pockets. Officer Mana then handcuffed

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defendant and informed him that he was under arrest. Defendant was charged with possession

of the substances found in his pockets.1

A preliminary examination was held in this matter, after which defendant was bound over

to the circuit court as charged. Thereafter, defendant filed a motion to suppress evidence and

for dismissal. Defendant contended that after he exited his vehicle, his person was twice

searched by Officer Bailey. Defendant was then directed to stand in front of Officer Bailey’s

patrol car, which he did. Defendant asserts that he was not told he was under arrest, nor was he

placed in restraints to indicate that he was under arrest. Nevertheless, according to defendant,

Officer Bailey began to conduct an invalid “inventory search” of his vehicle and allegedly

recovered suspected heroin in the headliner of the vehicle. Defendant averred that Officer Mana

then searched him a third time and that neither the third search of his person, nor the search

of his vehicle was a search incident to arrest. Defendant further asserted that the search of his

vehicle was made in violation of departmental procedure requirements to fill out an impound

inventory card, was unconstitutional in that it was not a lawful inventory search, and that no

probable cause existed to search his vehicle.2 The trial court granted defendant’s motion,

finding that the prosecution’s failure to provide an automobile inventory card with respect to

the vehicle search demonstrated the police officers’ failure to comply with their own policy and

that further, without evidence of an inventory card, the prosecution could not sustain its case

against defendant.

The prosecution now appeals the trial court’s order, asserting that the search of defendant’s

vehicle was a valid inventory search and was conducted in accordance with departmental policy,

such that the vehicle search and the third search of defendant’s person were not unconstitutional

searches. We disagree.

LAW

“We review for clear error a trial court’s findings of fact in a suppression hearing, but

we review de novo its ultimate decision on a motion to suppress.” People v Hyde, 285 Mich App

428, 436; 775 NW2d 833 (2009). “Clear error occurs if the reviewing court is left with a definite

and firm conviction that the trial court made a mistake.” People v Johnson, 502 Mich 541, 565;

918 NW2d 676 (2018) (quotation marks and citation omitted). “To the extent that a trial court’s

ruling on a motion to suppress involves an interpretation of the law or the application of a

constitutional standard to uncontested facts, our review is de novo.” People v Tanner, 496 Mich

199, 206; 853 NW2d 653 (2014) (quotation marks and citation omitted). We also review de

novo “whether the Fourth Amendment was violated and whether an exclusionary rule applies.”

People v Anthony, 327 Mich App 24, 32; 932 NW2d 202 (2019).

1

An analysis of the substances found in defendant’s vehicle was inconclusive as to the presence

of narcotics and defendant was thus not charged with possession of the substances found in the

vehicle.

2

The dissent erroneously states, on several occasions, that the sole basis advanced in support of

suppression was the failure to produce an impound inventory card. Contrary to the dissent’s

repeated assertions otherwise, defendant also did not style his argument as seeking redress for

discovery abuse.

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Both the Fourth Amendment of the United States Constitution and article 1, § 11 of the

Michigan Constitution guarantee every person’s right to be free from unreasonable searches

and seizures. People v Slaughter, 489 Mich 302, 310-11; 803 NW2d 171 (2011). To that end,

a warrant supported by probable cause is generally required in order to deem a search

reasonable. In re Forfeiture of $176,598, 443 Mich 261, 265; 505 NW2d 201 (1993). There

are, however, several specifically established exceptions to the warrant requirement. Relevant

to the instant matter, these include searches incident to contemporaneous lawful arrests and

inventory searches conducted according to established procedure. Slaughter, 489 Mich at 311.

The Supreme Court has held that immediately upon arrest, an officer may lawfully

search the person of an arrestee and the area within the arrestee’s immediate control without

first procuring a warrant. Illinois v Lafayette, 462 US 640, 644; 103 S Ct 2605; 77 L Ed 2d 65

(1983). Known as a “search incident to arrest,” such searches are permissible in order to “protect

evidence in the possession of the arrestee and to protect the officer from danger posed by articles

in the arrestee’s possession.” Id. at 644-645, quoting United States v Robinson, 414 US 218,

235; 94 S Ct 467; 38 L Ed 2d 427 (1973). The “search incident to arrest” exception to the

warrant requirement further permits police to search a vehicle incident to an arrest: (1) when

the arrestee is unsecured and within reaching distance of the vehicle’s compartments, and (2)

when police reasonably believe that evidence related to the crime of arrest may be found in the

vehicle. Arizona v Gant, 556 US 332, 343; 129 S Ct 1710; 173 L Ed 2d 485 (2009). These

two narrow circumstances best serve the interest of officer safety, which is the fundamental

rationale of the “search incident to arrest” exception to the warrant requirement. Id. at 338,

347-348.

Under the inventory search exception, the police may conduct an inventory search of a

vehicle, in accordance with its departmental regulations, that is being impounded following the

driver’s valid arrest. People v Toohey, 438 Mich 265, 271–72; 475 NW2d 16 (1991). Such an

inventory search “is considered to be an administrative function performed by the police, rather

than part of a criminal investigation which the Fourth Amendment was intended to

circumscribe.” Id. “Inventory procedures serve to protect an owner’s property while it is in the

custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard

the police from danger.” Florida v Wells, 495 US 1, 4; 110 S Ct 1632; 109 L Ed 2d 1 (1990)

(citations omitted). But “an inventory search must not be a ruse for a general rummaging in

order to discover incriminating evidence.” Id. Thus, “[t]he lack of an underlying motive or bad

faith by the police in conducting an inventory search is an important aspect which courts must

consider in determining the validity of such a search.” Toohey, 438 Mich at 276. “To be

constitutional, an inventory search must be conducted in accordance with established

departmental procedures, which all police officers are required to follow, and must not be used

as a pretext for criminal investigation.” Id. at 284 (emphasis in original).

Evaluation of the reasonableness of a search or seizure depends upon the facts and

circumstances of each case. Id. at 272. “The benchmark for satisfaction of Fourth Amendment

rights is reasonableness, and reasonableness requires a fact-specific inquiry that is measured by

examining the totality of the circumstances.” People v Corr, 287 Mich App 499, 507; 788

NW2d 860 (2010), quoting Hyde, 285 Mich App at 436.

It is uncontested that the police in this matter searched defendant’s person and vehicle

without a search warrant. There appears to be no claim of unconstitutionality with respect to

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the initial and secondary search of defendant’s person by Officer Bailey. Officer Bailey

initiated a traffic stop of defendant’s vehicle when he purportedly saw defendant disregarding

a red light. Officer Bailey’s preliminary examination testimony and his body camera (bodycam)

video played at preliminary examination establish that upon questioning, defendant readily

admitted that he did not have a driver’s license (a misdemeanor under MCL 257.904), that the

vehicle was uninsured, and that he had marijuana on him (but had his medical marijuana card in

his wallet). At that point, defendant was asked to step out of the vehicle, which he did, and

Officer Bailey twice patted defendant down, finding nothing he deemed suspicious on

defendant’s person. Defendant does not appear to challenge these two searches. The searches

that followed, however, present a different story. The issues for our resolution, then, are

whether the third warrantless search of defendant’s person and the warrantless search of his

vehicle fell within an exception to the warrant requirement.

I. ARREST

Officer Bailey testified at the preliminary examination that when defendant was unable

to produce a driver’s license, he ordered defendant from the vehicle and “placed him in custody

for operating without a driving license.” Officer Bailey testified that defendant was under arrest

when he exited the vehicle. Officer Bailey further testified that he thereafter began conducting

an inventory search of defendant’s vehicle because the vehicle was going to be impounded.

Officer Bailey’s bodycam footage played at the preliminary examination and Officer Mana’s

preliminary examination testimony undermine these assertions.

Before delving into that evidence, we note that it is not clear from the record that the

entirety of Officer Bailey’s bodycam footage from this incident was played for the district court

or admitted into the preliminary examination record. At the beginning of the preliminary

examination, defense counsel asked to have “the body cams” admitted into the record. The

prosecutor stated that it would not have a problem with the admission of bodycam footage where

the bodycam footage corresponding to a particular witness was played while that specific

witness was testifying. The court stated it would address the issue at a later time, but did not

do so. Nevertheless, is clear from the record that portions of Officer Bailey’s bodycam footage,

portions of Officer Mana’s bodycam footage, and portions of the patrol car dashcam footage

were played during the preliminary examination while these two officers testified.

Reviewing the portions of Officer Bailey’s bodycam footage that were played during

the preliminary examination, we find it significant that when asking defendant to exit the

vehicle, Officer Bailey clearly told defendant, “shut the car off real quick man; I ain’t gonna

hold you up too long.” Reviewing Officer Mana’s played bodycam footage and testimony, we

also find it significant that Officer Mana testified that when defendant was standing in front of

the patrol car, and while Officer Bailey was searching his vehicle, defendant was not under

arrest at that point. Officer Mana affirmatively testified that defendant was instead being

detained for an investigation and he was placed under arrest only after the third search of person

revealed suspected heroin. Officer Mana testified that it was he who placed defendant under

arrest at that time, specifically for a violation of controlled substances law.

To determine whether a person is in custody, “the ultimate inquiry is simply whether

there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a

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formal arrest.” California v Beheler, 463 US 1121, 1125; 103 S Ct 3517; 77 L Ed 2d 1275

(1983). In Berkemer v McCarty, 468 US 420, 441–42; 104 S Ct 3138; 82 L Ed 2d 317 (1984),

for example, the Supreme Court rejected an assertion that the defendant was in custody after

his vehicle was stopped and he was told to exit the vehicle:

. . . respondent has failed to demonstrate that, at any time between the initial

stop and the arrest, he was subjected to restraints comparable to those associated

with a formal arrest. Only a short period of time elapsed between the stop and the

arrest. At no point during that interval was respondent informed that his

detention would not be temporary. Although Trooper Williams apparently

decided as soon as respondent stepped out of his car that respondent would be

taken into custody and charged with a traffic offense, Williams never

communicated his intention to respondent. A policeman’s unarticulated plan has

no bearing on the question whether a suspect was “in custody” at a particular

time; the only relevant inquiry is how a reasonable man in the suspect’s position

would have understood his situation. Nor do other aspects of the interaction of

Williams and respondent support the contention that respondent was exposed to

“custodial interrogation” at the scene of the stop. From aught that appears in the

stipulation of facts, a single police officer asked respondent a modest number of

questions and requested him to perform a simple balancing test at a location

visible to passing motorists. Treatment of this sort cannot fairly be characterized

as the functional equivalent of formal arrest. [footnotes deleted]

And in Terry v Ohio, 392 US 1, 26; 88 S Ct 1868; 20 L Ed 2d 889 (1968) the Supreme Court

clarified that there is a distinct difference between a brief detention and an arrest:

An arrest is a wholly different kind of intrusion upon individual freedom from a

limited search for weapons, and the interests each is designed to serve are likewise

quite different. An arrest is the initial stage of a criminal prosecution. It is intended

to vindicate society’s interest in having its laws obeyed, and it is inevitably

accompanied by future interference with the individual’s freedom of movement,

whether or not trial or conviction ultimately follows.

The actions and testimony of the officers support that defendant was initially briefly

detained because he allegedly ran a red light and then freely admitted he did not have a valid

driver’s license, (see Terry, 392 US 1), but was not under arrest until Officer Mana told him he

was and handcuffed him. Dashcam footage shows that after defendant exited the vehicle, he stood

in front of the police car, chatting with the officers. He was not handcuffed and his movement was

not restrained. Approximately six minutes after Officer Bailey initiated his search of the vehicle,

Officer Mana approached Officer Bailey (who was still searching) and Officer Bailey told Officer

Mana that he had found “folds” (folded lottery tickets, which Officer Bailey testified was

indicative of heroin packaging) stuffed into the headliner above the passenger compartment.

Officer Bailey then directed Officer Mana to search defendant again, because defendant had a

pocket full of lottery tickets. After Officer Mana’s search of defendant and his finding of suspected

heroin in defendant’s pocket, Officer Mana handcuffed defendant, then walked back to Officer

Bailey and queried, “take him?” to which Officer Bailey replied “sure.” It is only at that point,

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some fifteen minutes after Officer Bailey’s initial conversation with defendant, that Officer Mana

advised defendant, “You’re being arrested right now for violation of controlled substances.”

Before the search of the car, there was no indicia of a formal arrest.3 On his exit from the

vehicle and for some time thereafter, defendant was not handcuffed, was not read his Miranda4

rights, was not told he was under arrest, and was not placed in a patrol car. His freedom of

movement was not restricted. Officer Mana unequivocally testified that it was he that placed

defendant under arrest and his bodycam video supports his testimony. Only after the search of his

vehicle revealed suspected controlled substances and a third search of his person arrest revealed

the same did Officer Mana handcuff defendant, tell him he was under arrest, and identify a specific

reason for defendant’s arrest.5 Indeed, no mention was made of an arrest for driving without a

valid driver’s license in any of the bodycam footage that was played at the preliminary

examination. Thus, defendant was not under arrest until after the search of his vehicle and the

third search of his person, when Officer Mana arrested him.

SEARCH INCIDENT TO ARREST

As previously indicated, the search of a vehicle incident to arrest is permitted only when

the arrestee is unsecured and within reaching distance of the vehicle’s compartments, and when

police reasonably believe that evidence related to the crime of arrest may be found in the

vehicle. Gant, 556 US at 343. Even if this Court were to conclude that defendant was under

arrest immediately upon exiting the vehicle, Officer Bailey’s search of defendant’s vehicle does

not qualify as a search incident to arrest under Gant.6

It is uncontested (and the bodycam videos establish) that defendant was pulled over and

Officer Bailey initiated contact with him at approximately 10:23 p.m. Less than three minutes

later, defendant exited the vehicle and stood in front of the police car, facing away from Officer

Bailey and accompanied by Officer Hill. At that point, Officer Bailey began searching

defendant’s vehicle. The vehicle, and none of the compartments or contents therein were

anywhere near defendant, let alone within his reach when the search was initiated or conducted.

Gant, 556 US at 343. Additionally, if, as the prosecution argues, defendant was under arrest

for driving without a valid operator’s license upon his exit from the vehicle, there would be no

evidence “related to the crime of the arrest” to be found in his vehicle. Gant, 556 US at 343.

3

The dissent fails to distinguish between a seizure and an arrest, mixing the caselaw and the

concepts interchangeably.

4

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

5

While Officer Bailey testified that during his initial two searches of defendant he found lottery

tickets in his back pocket, he also testified that this finding was not suspicious to the level of

probable cause.

6

Although the prosecution asserts only that the search at issue was a valid inventory search, for

purposes of thoroughness, we nevertheless address whether the search of defendant’s vehicle could

alternatively qualify as a search incident to arrest.

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Given the above, Officer Bailey’s search of defendant’s vehicle does not qualify as a search

incident to arrest.7

The dissent repeatedly circles back to the third search of defendant’s person that

revealed drugs to conclude that there were at least factual issues concerning a valid search

incident to arrest or valid inventory search of defendant’s person. Notably, however, the

prosecution did not raise the issue of whether Officer Mana’s search of defendant’s pockets was

independently justifiable as a search incident to defendant’s purported arrest for operating

without a license. Rather, the prosecution argued that Officer Bailey’s discovery of suspected

drugs during a lawful inventory search of defendant’s vehicle provided probable cause for

Officer Mana to then search defendant’s pockets.8

And, we cannot ignore the sequence of events. Defendant was not placed under arrest

when he exited the car and was never placed under arrest for driving without a valid license.

Officer Mana unequivocally testified that he arrested defendant. And he did so only after

Officer Bailey conducted a search of defendant’s car, found suspected drugs therein, and told

Officer Mana to search defendant a third time. The bodycam footage played at the preliminary

examination verifies the above. Defendant was not charged with driving without a valid

operator’s license. Indeed, the only charges brought against defendant were for violation of

controlled substances laws based upon the substances found on his person—which is exactly

for what Officer Mana testified he arrested defendant.9

Thus, while the dissent may find it unclear why the search of the vehicle is material, it

is abundantly clear to this Court, as it was the trial court, that where the search of defendant’s

7

The dissent cites to Illinois v Lafayette, 462 US at 646, for the proposition that “it is entirely

proper for police to remove and list or inventory property found on the person or in the possession

of an arrested person who is to be jailed.” The dissent, however, omits the phrase immediately

preceding the quoted language, which states “At the stationhouse, it is entirely proper . . .”

(emphasis added). Lafayette is thus inapplicable to the matter before this Court.

8

The prosecution clearly and thoroughly stated its arguments as such and is in no need of vigorous

advocacy by the dissent of other arguments.

9

If a search of defendant, conducted because he was being placed under arrest for driving without

a valid license (and otherwise constitutionally sound), had revealed drugs on his person, that search

of his person would undoubtedly qualify as a search incident to arrest. But that is not what

happened. While the dissent makes much about the majority’s purported “fact-finding,” this is not

a case of “he said she said” or one where the facts are largely contested. Indeed, having video

recording of the entire incident and the testimony of Officer Bailey provides the lower court and

this Court with a very clear understanding of what transpired. Both courts have been presented

issues of legal, rather than factual significance. Two searches of defendant’s person revealed

nothing illegal or suspicious, according to Officer Bailey’s uncontested testimony. He thereafter

proceeded to search defendant’s vehicle as, he specifically testified, an inventory search, and then,

only after Officer Bailey discovered suspected drugs in the headliner of the vehicle and told Officer

Mana to search defendant for the third time were drugs found. We cannot look at the third search

of defendant’s person in a vacuum.

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vehicle prompted the search of his person wherein drugs were found, the search of the vehicle

is highly material, as is further discussed below.

INVENTORY SEARCH

Police may conduct an inventory search of a vehicle, in accordance with their

departmental regulations, that is being impounded following the driver’s valid arrest. Toohey,

438 Mich at 271–272. While Officer Bailey could have reasonably arrested defendant for

driving without a valid license and thus impounded the vehicle, again, there is no indication

that he did so. Assuming, without deciding, the vehicle could have been lawfully impounded

upon immediate removal of defendant from the car, the validity of the inventory search depends

on the whether there were standardized criteria, policies, or routines regulating how inventory

searches were to be conducted. People v Poole, 199 Mich App 261, 265; 501 NW2d 265 (1993),

citing Wells, 495 US at 4. Once a warrantless search has been shown, the state bears the burden

of showing that the search is within an exception to the rule. People v Reed, 393 Mich 342, 362;

224 NW2d 867 (1975).

While police may exercise some discretion in executing an inventory search consistent with

departmental policies, that discretion is not unfettered. Poole, 199 Mich App at 266 (citation

omitted). After all, the foremost goal of requiring policies “is to prevent inventory searches from

being used as ‘a ruse for general rummaging in order to discover incriminating evidence’ and,

therefore, the applicable policy ‘should be designed to produce an inventory.’ ” Id. at 266,

quoting Wells, 495 US at 4. “The individual police officer must not be allowed so much latitude

that inventory searches are turned into a purposeful and general means of discovering evidence

of crime.” Wells, 495 US at 4, quoting Colorado v Bertine, 479 US 367, 376; 107 S Ct 738;

93 LEd2d 739 (1987).

In Wells, our Supreme Court held that because the applicable standardized criteria did not

regulate the opening of containers found during inventory searches, the search “was not

sufficiently regulated to satisfy the Fourth Amendment” and that incriminating evidence found

as a result of the inventory search was properly suppressed. Id. at 5. Thus, to pass constitutional

muster, an inventory search must be performed pursuant to a standardized policy and that policy

must regulate the manner in which inventory searches are conducted.

The Detroit Police Department Manual’s “Impounding of Vehicles” states, in its first

paragraph, that “[w]henever a vehicle . . . is impounded by a member of the Department for any

reason (e.g., evidence, safekeeping, accidents, abandonment, etc.) two (2) original copies of an

Impound Vehicle Card (DPD406) shall be completed in dark blue or black ink.” The policy further

states that “[a]ny member impounding a vehicle shall complete Impounded Vehicle Cards

(DPD406) with an itemized list detailing the ‘Accessories on Vehicle’ section.” There is nothing

in the policy setting forth parameters as to how in-depth the interior of a vehicle is to be searched,

or what and in what manner specific property found inside the vehicle is to be documented. While

Officer Bailey testified at the preliminary examination that his department requires an inventory

search of impounded vehicles, there was no further testimony as to how an inventory search is to

be conducted and in reading the policy itself, there is no clear departmental policy on how such

searches should be conducted. As a matter of law, then, the search here suffered from the same

constitutional defect as that in Wells, supra.

Moreover, Officer Bailey admitted at the preliminary examination that the department

policy requires that when a car is to be impounded, an inventory search must be conducted and a

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card be filled out with respect to the inventory. He testified that his police report did not include

an impound inventory card, and he could not recall if he filled out an impound card inventorying

items inside the vehicle as required by departmental procedures. As of the date of the hearing on

defendant’s motion to suppress (three months after the preliminary examination was held), the

prosecution was still unsure whether an impound inventory card existed. The trial court did not

have the benefit of any impound inventory card when rendering its decision and we do not consider

it here because our review is limited to the record established by the trial court, and a party may

not expand the record on appeal. “[T]o consider evidence presented on appeal that the parties

failed to present to the trial court would be an impermissible expansion of the lower-court record.”

People v Morrison, 328 Mich App 647, 655; 939 NW2d 728 (2019).

While the dissent states otherwise, no videotape establishing that impound tickets were

issued was provided to the trial court in any filings. As previously indicated, at the time of the

suppression hearing, the prosecution was unsure if impound inventory cards existed. It said so

on the record and requested additional time at the suppression hearing to attempt to ascertain

their existence. After the trial court granted defendant’s motion to suppress, the prosecution filed

no motion for reconsideration and submitted no further documentation or requests to the trial

court. Instead, defendant’s motion was granted on February 8, 2019 and the prosecution

proceeded directly to a claim of appeal with this Court on March 22, 2019.

Additionally, while there may have been videotape showing the issuance of an impound

ticket, that appears to this Court to be based on the bodycam footage of Officer Hill. Officer Hill

did not testify at the preliminary examination, his bodycam footage was not played at the

preliminary examination, and the trial court was not provided with this bodycam footage. The

prosecution’s attachment of Officer Hill’s bodycam footage on appeal was an impermissible

attempt to expand the record on appeal, as were much of the prosecution’s other attachments to

its appeal brief.10 See MCR 7.210(A)(1) (“In an appeal from a lower court, the record consists of

the original papers filed in that court or a certified copy, the transcript of any testimony or other

proceedings in the case appealed, and the exhibits introduced.”). Thus, to the extent that the

dissent relies upon an impound inventory card or Officer Hill’s bodycam footage to establish that

the search was a valid inventory search or to establish a question of fact on that issue, such reliance

constitutes fact-finding by the dissent based on evidence outside of the record.11

10

For example, the preliminary examination in this matter was approximately one hour long and

only Officers Bailey and Mana testified. The prosecution improperly appended to its appeal brief

approximately four hours of video footage, which was captured by the dashboard cam and the

bodycams of all three officers involved in the stop.

11

Were the evidence even to be properly considered, we note that according to Officer Mana’s

bodycam, defendant was pulled over at 22:23, and Officer Bailey began searching defendant’s car

within minutes, as defendant stood outside the vehicle and chatted casually with the other officers.

According to Officer Hill’s bodycam, it was not until 22:48 that Officer Hill obtained an

“Impounded Vehicle” form from the police car. At 22:56, Hill got out of the police car, walked

over to where Officer Bailey was still searching defendant’s vehicle, and asked Officer Bailey,

“Any personal property that you know of?” Officer Bailey responded, “not much,” and indicated

that there were some shoes in the back of the vehicle. Thus, the impound inventory card did not

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At the hearing on defendant’s suppression motion, the trial court correctly stated that

the burden was on the People to “demonstrate the reasonableness of this warrantless search.”

The trial court indicated that it had read defendant’s motion and the People’s response and had

also reviewed the preliminary examination. It additionally stated:

And at this point, what the Supreme Court has said about warrantless

searches and vehicles, it can be done after valid impoundment, it can be done if it’s

if an inventory is done in accordance with standard procedures of the department

and where the purpose is to protect the property or the vehicle owner, to protect the

police from lawsuits . . .

Defense counsel argued to the court that the impound inventory card was

very, very pertinent to this matter, your Honor, because it demonstrates

whether or not this clearly was an inventory search with regard to impound, as the

standardized policies and procedures of the Detroit Police Department articulate

inventory. Without the paperwork, the search is not a valid inventory search.

The failure to even affirmatively assert before the trial court, let alone provide evidence to the trial

court, that an impound inventory card was filled out evidenced to the trial court that this was not a

valid inventory search. This is necessarily so, as a failure to fill out the card meant that the officers

had not been searching in accordance with their written policy.

That is, however, only one piece of the question concerning the constitutionality of an

inventory search. Courts “assess the constitutionality of police conduct by whether they acted in

accordance with standardized departmental procedures when conducting an inventory search, in

the absence of a claim that the police were attempting to conduct further criminal investigation

disguised as an inventory search.” Toohey, 438 Mich at 279 (emphasis added). Part and parcel

of a determination concerning the constitutionality of an inventory search, then, is a consideration

of a claim that the search was a disguise for further investigation, if one is made. Defendant made

such a claim and the trial court could properly consider that claim when making its constitutionality

determination.

The prosecution here not only failed to establish that the search of defendant’s vehicle was

conducted in conformance with departmental procedures, it failed to establish that the search was

not used as a pretext for unfounded investigation, as was its burden. See People v Mayes, 202

Mich App 181, 184; 508 NW2d 161 (1993). An inventory search may be conducted on a vehicle

that is being impounded following the driver’s valid arrest. Toohey, 438 Mich at 271–272. At the

preliminary examination, the testimony of Officers Bailey and Mana verify that Officer Bailey

immediately began searching defendant’s vehicle after defendant went to stand by the patrol car.

Officer Mana’s bodycam video also establishes that he advised defendant of his arrest for

possession of controlled substances long after Officer Bailey initiated his search of the vehicle.

More importantly, Officer Bailey performed a search of defendant’s vehicle that went well

beyond the purpose of an inventory search. He felt along the headliner of the vehicle (within the

even make an appearance until more than 20 minutes after Officer Bailey had begun his extensive

search of defendant’s vehicle and it was not even Officer Bailey who filled it out.

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first three minutes of searching), which he advised Officer Mana was a good hiding place because

it was “not tore down at all. It’s tight up there.” Officer Bailey’s bodycam also shows him

removing part of the dashboard while conducting his purported “inventory” search.

In People v Sinistaj, 184 Mich App 191, 199; 457 NW2d 36 (1990), this Court held that

the search of a vehicle was not a valid inventory search, in part “because the officers failed to

follow established departmental procedures for an inventory search, and because their removal of

the panel from inside the trunk went far beyond the scope of those procedures.” Thus, where a

search is so clearly unrelated to the purposes of an inventory search to protect defendant’s property

while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized

property, and to guard the police from danger (Wells, 495 US at 4), it is unconstitutional. This

principal is reinforced in Sibron v New York, 392 US 40, 65–66; 88 S Ct 1889; 20 L Ed 2d 917

(1968):

Even assuming arguende that there were adequate grounds to search Sibron for

weapons, the nature and scope of the search conducted by Patrolman Martin were

so clearly unrelated to that justification as to render the heroin inadmissible. The

search for weapons approved in Terry consisted solely of a limited patting of the

outer clothing of the suspect for concealed objects which might be used as

instruments of assault. Only when he discovered such objects did the officer in

Terry place his hands in the pockets of the men he searched. In this case, with no

attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand

into Sibron’s pocket and took from him envelopes of heroin. His testimony shows

that he was looking for narcotics, and he found them. The search was not reasonably

limited in scope to the accomplishment of the only goal which might conceivably

have justified its inception—the protection of the officer by disarming a potentially

dangerous man. Such a search violates the guarantee of the Fourth Amendment,

which protects the sanctity of the person against unreasonable intrusions on the part

of all government agents.

Though not binding upon this Court, we also find rulings made by other courts on this issue

persuasive. In State v Jewell, 338 So 2d 633 (La, 1976), for example, police found the defendant

asleep in driver’s seat of vehicle which was illegally parked on a highway at night with its motor

running and lights out. Id. at 635. The defendant was then removed from the vehicle and arrested.

Id. One police officer immediately searched the defendant’s vehicle and found illegal drugs in

small aspirin bottle in an open ashtray. Id. at 639. The court found that the facts surrounding the

search, specifically where standard inventory forms were not completed at time of the search of

the vehicle, and the search was made for obtaining incriminating evidence and not for safekeeping

of valuables in vehicle, the warrantless search of the vehicle was not justified as an inventory

search. Id. at 638-640.

In United States v Taylor, 636 F3d 461, 463 (CA 8, 2011), a defendant was stopped for a

traffic violation and was arrested. A search of his vehicle ensued. The police towing policy

required officers to complete a report, which included a detailed inventory of the vehicle’s

contents, when a vehicle is towed. Id. at 463. The court found the police did not comply with

their written standardized procedures. Id. at 465. The court also noted that “[e]ven if police fail

to adhere to standardized procedures, the search is nevertheless reasonable provided it is not a

pretext for an investigatory search” but that “ ‘something else’ must be present to suggest that

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the police were engaging in their criminal investigatory function, not their caretaking function,

in searching the defendant’s vehicle.” Id. at 465.12

The “something else” in this matter was the scope and meticulousness of Officer Bailey’s

search of defendant’s vehicle. Officer Bailey’s search went far beyond identifying and

documenting any items in defendant’s car in order to protect his property, insure against claims

of lost or stolen property, or to protect the police from danger. The search was not prompted

by a plain view of any valuables in the car and did not serve a caretaking function. Rather, it is

readily apparent that the search of the vehicle was conducted for the express purpose of

investigating potential evidence of any other crime, i.e., it was used as pretext for an

investigative search and was thus unconstitutional.

The constitutionality of the inventory search is critical to determining whether the final

search of defendant’s person was proper. This is necessarily so, as inventory searches are

exempt from the warrant requirement precisely because they are “described as community

caretaking functions, totally divorced from the detection, investigation, or acquisition of

evidence relating to the violation of a criminal statute.” Cady v Dombrowski, 413 US 433, 441;

93 S Ct 2523; 37 L Ed 2d 706 (1973).

The search of defendant’s vehicle here was the only thing that supplied the police with

probable cause to arrest defendant and search him a final time for contraband. The trial court

ultimately held:

Well the Court at this time is going to grant the defense motion to

suppress the evidence. The Court believes that the lack or failure of the People

to produce the inventory cards speaks to the department’s noncompliance with

their own inventory policy, which was attached to the defense motion as Exhibit

B.

The Court does find at this point that without the—the evidence that the

people cannot sustain their case and the Court is going to dismiss the case.

Without prejudice.

The trial court thereafter entered an order dismissing the case without prejudice.13

12

See also, United States v Lugo, 978 F2d 631, 636 (CA 10, 1992) (“The issue, however, is whether

or not Sabourin's actions in bending over the corner of the vent in the door panel and looking

inside, then reaching inside the cavity between the door panel and door to retrieve a paper sack,

can fairly be described as a community caretaking function within the meaning of Cady [v

Dombrowski, 413 US 433, 441; 93 S Ct 2523; 37 L Ed 2d 706 (1973)]. We think not. … Thus,

we hold that the search into the interior of the door panel was not constitutionally justifiable as a

community caretaking function.”) and United States v Best, 135 F3d 1223, 1225 (CA 8, 1998)

(“Trooper Byrd's use of a flashlight to look inside the window and his opening Best's door panel

did not serve the purpose of ‘protecting the car and its contents.’”).

13

The ruling was not, as the dissent asserts, a dismissal based upon a discovery violation.

Defendant requested that the case be dismissed due to a lack of evidence, and the trial court

explicitly found that the prosecution did not meet its burden of establishing that the inventory

search was conducted in compliance with its departmental policy. The trial court thus found that

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In the context of the trial court’s ruling (and the only logical conclusion that can be

drawn therefrom its decision, given defense counsel’s arguments immediately preceding the

ruling and the court’s statements during the hearing) is that the purported inventory search was

actually a pretext for an evidence-gathering expedition. As the dissent points out, defendant

was charged with violation of controlled substances laws for items found on his person. He

was not charged with any crime related to driving, nor was he charged with any crime

concerning anything found in his vehicle. The trial court found that the purported inventory

search was invalid because there was no evidence that it had been conducted in compliance

with departmental policy. It then concluded that without “the evidence” the people could not

sustain their case. The only evidence for which defendant was charged was the drugs found on

his person. Thus, it was that evidence that must, according to the trial court, be suppressed. Had

the trial court determined that the search of defendant’s person that revealed the drugs was a

separate and valid search, it would not have dismissed the charges.

SUPPRESSION OF EVIDENCE

Evidence obtained in violation of the rights afforded under the Fourth Amendment and

article 1, § 11 is inadmissible as substantive evidence in criminal proceedings. Toohey, 438

Mich at 272. The exclusionary rule prohibiting the admission of evidence procured in violation

of a person’s constitutional rights extends to materials and testimony that are “the products or

indirect results of an illegal search” under the “fruit of the poisonous tree” doctrine. People v

Mahdi, 317 Mich App 446, 470–471; 894 NW2d 732 (2016). As stated by the Supreme Court,

the apt question in reviewing evidence that would not have come to light but for illegal police

actions is “whether, granting establishment of the primary illegality, the evidence to which

instant objection is made has been come at by exploitation of that illegality or instead by means

sufficiently distinguishable to be purged of the primary taint.” Wong Sun v United States, 371

US 471, 487–488; 83 S Ct 407; 9 L Ed 2d 441 (1963) (citation omitted).

“[T]he exclusionary rule reaches not only primary evidence obtained as a direct result

of an illegal search or seizure, but also evidence later discovered and found to be derivative of

an illegality or ‘fruit of the poisonous tree.’ ” People v Frazier, 478 Mich 231, 247 n 17; 733

NW2d 713 (2007), quoting Segura v United States, 468 US 796, 804; 104 S Ct 3380; 82 LEd2d

599 (1984) (internal citations omitted). Exclusion of such evidence is warranted when the

evidence would not have come to light but for the illegal actions of the police. People v Maggit,

319 Mich App 675, 693; 903 NW2d 868 (2017).

The substances discovered in defendant’s vehicle (which prompted the final search of

defendant) would not have come to light but for the police action of engaging in an

the inventory search did not pass constitutional muster. In addition, the dismissal was without

prejudice. If, as the prosecution now argues (and the dissent appears to agree), that the dismissal

was based solely on the failure to produce the inventory cards during discovery, it could have

moved for reconsideration or to reinstate the case based upon it locating and belatedly producing

the inventory cards. It did not. Instead, it sought appeal to this Court and, in doing so, also

attempted expand the record by providing documentary evidence that was not provided to the trial

court.

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unconstitutional purported inventory search of his vehicle. Thus, evidence of the substances

found in defendant’s vehicle would not have been admissible as evidence against defendant.

The same holds true for the substances found on defendant’s person.

After Officer Bailey found suspected narcotics during his illegal search of defendant’s

vehicle, defendant was searched for a third time. That third search revealed suspected

marihuana and controlled substances. Defendant had twice been already searched without any

illegal substances having been found, and he was not subject to the third search until the

suspected controlled substances were illegally obtained from his vehicle. It was at that point

that Officer Bailey directed Officer Mana to search defendant again “good.” The third search

and finding of illegal substances on defendant’s person came about by an exploitation of the

illegal vehicle search and the process through which the substances were obtained from his

person was not sufficiently distinguishable from the illegal vehicle search to be purged of the

primary taint. Wong Sun, 371 US at 487–488. The trial court thus properly granted defendant’s

motion to suppress the evidence and dismissed the charges against him.

THE DISSENT

The dissent asserts that this Court engaged in fact-finding to reach its conclusions and

emphasizes that there was no evidentiary hearing conducted on this issue. However, the dissent

disregards the actual evidence provided to the trial court, and ignores that the trial court did not

deny the prosecution an opportunity to have an evidentiary hearing. Neither defendant nor the

prosecution requested one. And, significantly, the prosecution attached no evidence to its

response to defendant’s motion or at the hearing on defendant’s motion to suppress that would

allow the trial court to find that the search of defendant’s vehicle was conducted in conformance

with departmental policies. In response to defendant’s motion, the prosecution set forth law

applicable to inventory searches and stated that it was not clear if an inventory card was filled

out. The prosecution stated that while the proper remedy would be to have a hearing to discover

if there was one, “[n]onetheless, that alone does not give rise to the suppression of the evidence

in this case.” The prosecution argued that the search at issue was “not unreasonable based on

the circumstances that have been placed into record during the Preliminary Examination” and

premised its response to defendant’s motion exclusively on the preliminary examination

testimony and evidence. Parties in a criminal action are permitted to rely on preliminary

examination testimony in a post-examination motion14 to exclude evidence and it is not

improper for a trial court to decide a motion to suppress based upon the record of the preliminary

examination in that case. See People v Kaufman, 457 Mich 266, 275; 577 NW2d 466 (1998).

Moreover, the rule cited by the dissent for the proposition that the trial court was required

to afford the prosecution an opportunity for an evidentiary hearing, MCR 6.110(D)(2), is

inapplicable. That rule provides:

(2) If, during the preliminary examination, the court determines that evidence

being offered is excludable, it must, on motion or objection, exclude the

evidence. If, however, there has been a preliminary showing that the evidence

14

There need not be a written or verbal stipulation to the use of a preliminary examination as the

basis for a trial court’s ruling on a suppression motion; the fact that the parties base their arguments

on the preliminary examination testimony and evidence and do not dispute essential facts is

sufficient. See People v Kaufman, 457 Mich 266; 577 NW2d 466 (1998).

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is admissible, the court need not hold a separate evidentiary hearing on the

question of whether the evidence should be excluded. The decision to admit or

exclude evidence, with or without an evidentiary hearing, does not preclude a

party from moving for and obtaining a determination of the question in the trial

court on the basis of

(a) a prior evidentiary hearing, or

(b) a prior evidentiary hearing supplemented with a hearing before the trial court,

or

(c) if there was no prior evidentiary hearing, a new evidentiary hearing.

This rule clearly anticipates situations where a “court” conducting a preliminary examination

makes a decision regarding the admissibility of evidence and a party later moves in the “trial court”

for a determination on the admissibility of that evidence. Applying the plain and unambiguous

language of MCR 6.110(D), People v Strong, 213 Mich App 107, 111; 539 NW2d 736 (1995),

that rule merely provides that if a court made an evidentiary ruling on a piece of evidence (with or

without an evidentiary hearing) during the preliminary examination, the defendant is not precluded

from moving for an evidentiary hearing in regard to the admission of that same piece of evidence

in the trial court or at trial. Additionally, in People v Olney, Mich App ; NW2d (2020), this

Court further clarified that the preliminary examination itself can be considered an evidentiary

hearing:

We do not read [MCR 6.110(D)] as concluding that preliminary examinations

are wholly distinct from evidentiary hearings. Rather, the court rule addresses

the necessity for a separate evidentiary hearing to decide questions concerning

the admissibility of evidence. That does not mean that preliminary examinations

are not a type of evidentiary hearing. Rather, the preliminary examination is, in

effect, the evidentiary hearing at which the district court determines whether

sufficient evidence to warrant the bindover is made. [slip opinion at 5]

Where the admissibility of any evidence was not challenged at the preliminary examination,15

neither party requested a separate evidentiary hearing with respect to the admissibility of any

particular piece of evidence before the trial court, and the parties relied on the preliminary

examination testimony, the circuit court was not required to conduct an evidentiary hearing. 16

The trial court correctly found, on the record before it at the time of its ruling, that the

search of defendant’s vehicle was unconstitutional. It thereafter properly suppressed the

15

The district court thus made no determination as to the exclusion or admission of any particular

evidence. Indeed, it bound defendant over to the trial court simply because “it’s a question of

fact.”

16

The dissent states that at the preliminary examination, “defendant argued for suppression of the

evidence on the basis that the police had failed to create impound cards regarding the search of the

vehicle. Defendant contended that the failure to create an impound card was a violation of the

inventory search policy and thus warranted suppression.” That is not only untrue, the dissent

appears to confuse the relevant issues, burdens of proof, and determinations in the district court at

preliminary examination and those in the trial court on the motion to suppress.

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evidence discovered on the third search of defendant’s person because, as the search was

prompted by the unconstitutional search of his vehicle, the evidence was the product or indirect

result of an illegal search.

Affirmed.

/s/ Deborah A. Servitto

/s/ Jane M. Beckering

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