Petition for Writ of Certiorari — Griffin v. Michigan

the canine unit to conduct a dog sniff. (Ann. 20-26.)

Robert Griffin is an African American male who was

driving along a highway (I-94) that the state police had

(App. 20-44.) The officer cited to the fact that Griffin had in

his possession a cell phone, pager, address book and air

fresheners in his vehicle at the time of the stop. (App. 26-27,

29-30.) This caused the police officer to search the interior of

the vehicle after Griffin was taken out of his car and put in

handcuffs. (App. 26, 59.) The police officer did not then

decide to take Griffin to the station since he said he wanted

to have more probable cause to search the trunk of the

vehicle. . 25, 30.) So Trooper Coleman called to have a

canine unit sent. (App. 30.) This call was placed 25 to 30

minutes after the initial call to dispatch (which was 10

minutes after the initial stop). (App. 31.) As a result, the

canine unit was only called about 40 minutes after the initial

stop. (App. 29-39.) Some time later, the canine unit arrived

and the dog sniffed the car (App. 29), and found drugs in the

trunk. (App. 25-32.)

Based on the foregoing, it is clear from this record that

the dog sniff was conducted close to an hour or more after

the initial traffic stop. (App. 25-32.) Trooper Coleman

never offered before or at trial any record to show that

Robert Griffin's driver’s license had been suspended for a

period of time that extended to the time of the stop and

arrest. (App. 20-29).

The State Police records were not offered at the trial and

no proof was given to show that Mr. Griffin had a Michigan

license that was suspended at the time of the arrest. (App.

20-29, Trial Transcript (“TT.”), Vol. I, 11-15-98, pp. 120-163.)

the theory that he who drives the vehicle must have construc-

tive possession and knowledge of drugs in the trunk.’

* Petitioner Griffin's defense was that he was a “blind mule.” A “blind

mule” is a person who drives a car in which drugs have been placed in the

car by others without the driver's knowledge. The person driving the car

(Continued on following page)

5

Petitioner Robert. Grifiin was convicted of cocaine

possession with intent to deliver cocaine, 2nd offense, in an

amount greater than 225 grams, but less than 650 grams.

(App. 1.) He was sentenced to serve 30-60 years in prison

(i.e., most of the rest-of-his-natural life). Jd. Griffin’s defense

at trial was that he had no knowledge of the drugs in the

trunk and had not taken possession of them at any time.

(TT., 11-5-98, pp. 225-237.) The Prosecutor relied on testi-

mony of the officer that because Griffin had a cell phone,

pager and address book, and given his responses at the

scene, he must be a drug courier. (TT., 11-5-98, pp. 217-225.)

Griffin challenged admission of the drug courier profile

evidence at his trial on appeal. (/d.; App. 54-72.) The Michi-

gan Courts denied Griffin’s appeal. (App. 7-14.)

Petitioner filed a timely post-conviction motion alleging

his original defense attorney failed to raise a Fourth

Amendment claim of unlawful search and seizure of the

drugs in the trunk. (App. 73-92.) The post-conviction motion

alleged, among other claims, that Griffin's trial attorney, who

also represented him in the direct appeal to the Michigan

Court of Appeals, had rendered ineffective assistance. Jd.

Petitioner’s original defense counsel had challenged the

seizure of the evidence on Fourth Amendment grounds by

filing a motion to suppress in the Berrien County Circuit

Court. (App. 16-17.) Petitioner’s original defense attorney

then obtained a ruling from the trial court denying his

motion to suppress. (App. 48-53.)

At trial, Griffin’s original defense attorney decided to

stipulate that the search was legal in order to try to get a

stipulation or ruling excluding testimony from the State

Trooper seeking to link Mr. Griffin to the drugs in the trunk.

then unwittingly takes the drugs to the place where they are going, and

once the car arrives in another city, someone with knowledge of the drugs

in the trunk takes them out of the car (i.e., without the driver’s knowl-

edge). See, ¢.g., People v. Schepis, 206 A.D.2d 278, 614 N.Y.S.2d 719

(1994) (discussing use of “blind mules” to deliver drugs). See generally,

“Article: The Drug Courier Profile: In Planes, Trains, and Automobiles,

And Now In the Jury Box,” 46 Am. U. L. Rev. 747, n.91 (1997).

6

(App. 70.) This stipulation by Griffin’s counsel was futile

since the trial court admitted the drug courier profile testi-

mony of State Trooper Coleman anyway. (App. 70; TT., 11-5-

98, pp. 120-160.)

After the trial, Griffin’s original defense counsel did not

raise the Fourth Amendment claim of unlawful search and

seizure of the drugs in the trunk in his first direct appeal to

the Michigan Court of Appeals. (App. 54-72.) Defense counsel

also did not argue in the Michigan Court of Appeals that

Griffin’s alleged arrest and detention in handcuffs at the

scene long before the canine unit arrived was unlawful - ie.,

counsel did not raise on appeal that the mere use of a cell

phone, pager and air fresheners was not sufficient cause to

justify a search of the trunk, even when viewed in combina-

tion with Griffin's answers to the police officer. (/d.) (Griffin

had told the officer he did not have a prior crimina! record

when, in fact, he was on parole for a first offense that was

related to drugs.) (App. 28.) In addition, Griffin's attorney

failed to argue that a driver in a routine traffic stop has no

duty to answer questions from the police officer about his

prior criminal record when he is stopped only for speeding.

(App. 54-72.) In summary, the record shows that, even though

Griffin’s defense counsel had understood the search of the

trunk may have violated the Fourth Amendment, and had

filed a motion to suppress, he abandoned that issue without

explanation in the direct appeal. (Id.; App. 16-17, 54-72.)

probable cause. (App. 73-92.) This issue was raised in a post-

conviction motion filed in the Berrien County C rcuit Court.

(Id.) The claim alleged that Petitioner's original defense

counsel rendered ineffective assistance of counsel by first

seeking to suppress the drugs, and then waiving that claim

in the direct appeal. (App. 88-91, 133-134.)

The trial court denied relief, as did the Michigan Court

of Appeals and Michigan Supreme Court — all without

7

issuing any statement of reasons for denying review of the

issue. (App. 1-15.) The specific claim that was raised and lost

in state post-conviction proceedings was that Griffin’s prior

trial attorney who handled his direct appeal to the Michigan

Court of Appeals had rendered ineffective assistance of

counsel by abandoning a valid claim of unlawful search and

seizure. (App. 1-15.)

In the state post-conviction petition filed in state court on

that Sixth Amendment issue, Petitioner relied on this Court’s

decision in Kimmelman v. Morrison, 477 U.S. 365 (1986) to

support his ineffective assistance of counsel claim. (App. 88-92.)

The Michigan Courts not only failed to rule on the claim at all,

but also denied any evidentiary hearing or oral arguments on

the issue. (App. 1-15.) The Michigan Courts issued summary

orders denying the claim without a specific statement of

reasons why relief was denied on that issue. (App. 1-15.)

This Petition seeks issuance of a writ of certiorari from

this Court and is timely filed. It seeks to have this Court

grant certiorari to address the substantial Sixth Amendment

claim. The Petition seeks a remand order instructing the

Michigan Courts to hear and decide the Sixth Amendment or

Fourth Amendment claims on their merits.

REASONS FOR GRANTING THE WRIT

I. THE MICHIGAN COURT HAS SAID THAT PETI-

TIONER SHOULD HAVE REVIEW OF HIS SIXTH

AMENDMENT CLAIMS IN POST-CONVICTION

PROCEEDINGS IN STATE COURT, BUT THEN

HAS MISAPPLIED SETTLED SIXTH AMEND-

MENT DOCTRINES SET FORTH IN U.S. SU-

PREME COURT CASE LAW TO IMPOSE AN

UNDULY NARROW DEFINITION OF WHAT

CONSTITUTES APPELLATE INEFFECTIVE AS-

SISTANCE OF COUNSEL SO AS TO BAR MANY

VALID SIXTH AMENDMENT CLAIMS, OF HUN-

DREDS OF LITIGANTS, INCLUDING THOSE OF

THE PETITIONER.

Petitioner’s counsel raised the potentially meritorious

Fourth Amendment claim in the trial court (App. 16-17),

8

but then did not pursue it in the direct appeal. (App. 54-

73.) As a result, Petitioner lost the ability to have Michigan

Courts review on the legal merits his Sixth Amendment and

Fourth Amendment claims. Michigan Courts refused to

allow a hearing on this claim of ineffective assistance of

counsel, or to decide Fourth Amendment issues it raises, or

to afford any relief on either issue. (App. 1-15.)

The issue on which certiorari may be granted is that

Michigan Courts limit the scope of relief given in state

post-convietion proceedings based on an incorrect view of

federal law. The result is that Petitioner has lost the

benefit of the relief he seeks here — namely, suppression of

the drugs in the trunk that led to his conviction. (See Issue

II below in this Petition, pp. 17-27.) Petitioner requests

that this Court accept this case to declare, as only this

Court can, that the Michigan Courts misinterpreted the

scope of the right to appellate counsel in a direct appeal

from a criminal conviction as defined by this Court’s prior

Sixth Amendment cases.’

The limits on state post-conviction relief for ineffective

assistance of counsel claims were adopted by the Michigan

Supreme Court in People v. Reed, 449 Mich. 375, 535

N.W.2d 496 (1995). Michigan committed itself formally to

allowing review of all Sixth Amendment claims in its post-

conviction review of criminal convictions.’ But in doing so,

the Michigan Supreme Court defines the scope of the Sixth

Amendment claims it would hear too narrowly. Moreover,

it did so as a matter of federal law, and not under a state-

created procedural rule. Under the Michigan rules that

* As used in this petition, the term “post-conviction review” refers

to state proceedings for post-appellate review or collateral review.

* Under Michigan rules of criminal procedure, a defendant may raise

a claim of the denial of his right to effective assistance of appellate counsel

in a petition for post-judgment relief under Mich. Ct. R. 6.500, et seg. See

generally, Stuart Friedman, “Article: Hurdling the 6.500 Barrier. A Guide

to Michigan Post-Conviction Remedies,” 14 T.M. Cooley L. Rev. 65 (1997)

(collecting cases interpreting the Michigan Court Rule that defines the

limits of collateral review of criminal convictions in Michigan).

9

_ govern review of criminal convictions, a defendant may

raise a claim that his appellate attorney violated his Sixth

Amendment rights by waiving an issue in the direct

appeal only after the appellate counsel in the direct appeal

completes his work. The attorney is not expected to raise a

claim of ineffective assistance against himself. Yet, the

rules adopted by the Michigan Supreme Court in Reed,

449 Mich. 375, 535 N.W.2d 496, to limit such petitions,

precludes review of meritorious claims of ineffective

assistance of appellate counsel during the direct appeal of

the criminal conviction.‘

The problem addressed here is that the Michigan

standard for reviewing ineffective assistance of appellate

counsel in the direct appeal falls below the federal Sixth

Amendment threshold, leaving such claims without a

remedy. The problem began with People v. Reed, 449 Mich.

375, where the Court held that where a criminal defen-

dant relies on an error of counsel to meet the “good cause”

requirement, the proponent must demonstrate a violation

of the Sixth Amendment right to effective assistance of

appellate counsel to prevail.’ In the process of declaring

this rule, however, the Michigan Supreme Court errone-

ously interpreted the scope of Sixth Amendment rights.

Specifically, the Michigan Supreme Court in People v. Reed

held that the only way to show a Sixth Amendment viola-

tion in a post-conviction proceeding and obtain relief when

it is shown is to meet a higher standard than this Court

has imposed. While the Michigan Courts could have

adopted this limit on state post-conviction relief as a

* It should be noted that Michigan does not apply a higher state

standard in determining whether counsel was ineffective, as the

Michigan Supreme Court held in People v. Pickens, 446 Mich. 298, 521

N.W.2d 797 (1994).

* The Michigan Supreme Court refused to find that errors of

appellate counsel less than ineffective assistance of counsel would

constitute “cause” for purposes of Mich. Ct. R. 6.508, by relying on its

flawed interpretation of this Court’s ruling in Murray v. Carrier, 477

U.S. 478 (1986). See People v. Reed, 449 Mich. at 380, 535 N.W.2d 496

(citing and discussing Murray).

10

matter of state law, they have instead fashioned this proce-

dural bar solely on the basis of an (erroneous) application of

what the Sixth Amendment requires.* See also People v.

Kimble, 470 Mich. 305, 313, 684 N.W.2d 669, 674 (2004),

citing People v. Reed, 449 Mich. 375, 535 N.W.2d 496."

The Michigan Supreme Court’s approach is contrary

to federal law, even though the Court paid homage to the

Sixth Amendment in deriving these procedural rules from

it. the majority opinion in People v. Reed, 449 Mich. 375,

535 N.W.2d 496, makes clear, a Sixth Amendment claim

will succeed in post-conviction review only “if (the defen-

dant’s appellate attorney says that) discretion was

actually exercised.” The claim of ineffective assistance

provided by the appellate counse] in the direct appeal will

be rejected in Michigan post-conviction review under this

test if the Court finds there was any exercise of strategy

by the appellate counsel, even if the strategy justification

given by the attorney was incorrect and reasonable in light

of applicable law. Reed, 449 Mich. 375, 535 N.W.2d 496. It

that condition is met, then the Michigan Courts deny relief

on the basis that the failure of counsel to raise a valid

legal issue was not “significant and obvious.” Thus, accord-

ing to the Reed decision, any strategic decision by criminal

defendant's appellate counsel to not raise an issue in the

* The Michigan Court Rule being interpreted is a Michigan Court

Rule, see Reed, 449 Mich. 375, 535 N.W.2d 496, citing Mich. Ct. R. 6.500

et seq. This rule defines the only method of demonstrating entitlement

to relief when challenging a criminal conviction in Michigan after the

direct appeal is concluded. a

" Under this Michigan Court Rule, a criminal defendant may only

demonstrate entitlement for relief if he can show “good cause” for the

procedural! default (i.e. failure to raise the issue in the direct appeal)

and “actual prejudice.” The Michigan Supreme Court has made clear

that a criminal defendant is entitled to post-conviction relief under

Mich. Ct. Rule 6.500 if he shows “good cause” which is equated, under

the test set forth in People v. Reed, 449 Mich. 375, with a showing of

“ineffective assistance of counsel, as defined by this Court's Sixth

Amendment case law, People v. Kimble, 470 Mich. at 313. These

concepts were borrowed by the Michigan Supreme Court from this

Court's case law interpreting the federa)] habeas corpus statute.

11

direct appeal serves as a basis to preclude all relief on the

Sixth Amendment claim in state post-conviction review.

The Michigan Supreme Court rejected the test an-

nounced by the Seventh Circuit Court in Gray v. Greer, 800

F.2d 644 (CA 7, 1985). Under the analysis of that Seventh

Circuit decision in Gray, the failure of defendant's appellate

counsel's to raise “significant and obvious” appellate issues

can constitute ineffective assistance of counsel. Id. at 646.

The Seventh Circuit in Gray adopted a weighing test that

has been favorably cited by this Court in Smith v. Robbins,

528 U.S. 259, 288, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000).

The Gray v. Greer formulation of the Sixth Amendment

rights is widely followed by federal appellate courts.

In contrast to this proper application of the Sixth

Amendment, the analysis in People v. Reed, 449 Mich. 375,

departs from federal] law, even while purporting to follow

the Sixth Amendment. Michigan Courts clearly mis-read

federal law on this key point (of when an exercise of

strategy by appellate counsel in waiving an issue violates

the Sixth Amendment). The error in the Michigan Su-

preme Court’s Reed decision can be located squarely in its

mis-reading of this Court’s decision interpreting the Sixth

Amendment right to counsel in Kimmelman v. Morrison,

477 U.S. 365 (1986).

In Kimmelman v. Morrison, 4. U.S. 365 (1986), this

Court found that failure of an attorney to pursue a Fourth

Amendment violation claim on appeal could be reviewed in

federal habeas corpus proceedings, even though federal

courts will normally refuse to hear habeas corpus cases

involving search and seizure questions. Kimmelman held

that an attorney’s actions taken in the face of ignorance of

the law cannot be good strategy, and must be taken into

account, when deciding if the attorney rendered ineffective

assistance of counsel. Under the Kimmelman standard, a

Defendant must prove that counsel's failure to raise a

Fourth Amendment claim was not based on strategic

considerations and further that had the motion been

granted, a different result was likely.

12

This Court’s Kimmelman decision expressly rejects the

approach taken by the Michigan Supreme Court in People

v. Reed, 449 Mich. 375, 535 N.W.2d 496. A simple reading

of the direct holding in Kimmelman shows why the Michi-

gan approach is wrong. The attorney in Kimmelman was

unaware of the evidence and therefore failed to seek ade-

quate pretrial discovery. This Court rejected the State’s

argument that the defendant’s counsel’s failure to raise the

issue can be deemed to be reasonable strategy where it is

based on this type of inexcusable ignorance as to how the

controlling law would apply to 'e key facts:

The trial record in this case clearly reveals

that Morrison’s attorney failed to file a timely

suppression motion, not due to strategic consid-

eration but because, until the day of trial, he was

unaware of the search and of the State’s intention

to introduce the bed sheet into evidence. Counsel

was unaware of the search and seizure because he

had conducted no pretrial discovery. Counsel’s

failure to request discovery again, was not based

on “strategy,” but on counsel’s mistaken belief that,

the state was obliged to take the initiative cnd turn

over all of its inculpatory evidence to the defense

and that the victim's preference would determine

whether the State proceeded to trial after an in-

dictment had been returned.

Viewing counsel’s failure to conduct any dis-

covery from his perspective at the time he de-

cided to forgo that stage of pretrial preparation

and applying a “heavy measure of deference,” to

his judgment, we find counsel’s decision unrea-

sonable, that is, contrary to prevailing profes-

sional norms. (Emph. Added.)

477 U.S. at 385. The Court further found that counsel's

ignorance of the applicable law further justified this

result:

The justifications Morrison’s attorney offered

for his omission betray a startling ignorance of

the law — or a weak attempt to shift blame for

13

inadequate preparation. “(Clounsel has a duty to

make reasonable investigations or to make a rea-

sonable decision that makes particular investiga-

tions unnecessary.” Respondent's lawyer neither

investigated, nor made a reasonable decision not

to investigate, the State’s case through discovery.

Such a complete lack of pretrial preparation puts

at risk both the defendant's right to an “ ‘ample

opportunity to meet the case of the prosecution,’”

and’ the reliability of the adversarial testing

_ process. (Citations omitted).

The Michigan Supreme Court in People v. Reed mis-

applied Kimmelman, and the use cf the wrong Sixth

Amendment standard has resulted in the Petitioner being

denied relief on a valid federal claim. This use of quasi-

federal limits to create a state procedural bar may be

unique. Regardless of whether a few other states may

have similar limits, however, other states do not attribute

them to a state court reading of the U.S. Supreme Court

Sixth Amendment case law. This makes the Michigan

procedural bar unique. Moreover, the application of this

bar to all review of such Sixth Amendment claims in state

post-conviction proceedings in Michigan effectively denies

access to criminal defendants in Michigan who seek an

adequate state remedy after their direct appeal for such

ineffective assistance of appeal counsel claims.

Petitioner asks that this Court grant this Petition to

enforce the standard of objective unreasonableness of

appellate counsel waiving valid legal claims that it set

forth both in Kimmelman, 477 U.S. at 385, and in the

more recent decision in Wiggins v. Smith, 539 U.S. 510,

515, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003). This Court

should remand this case to insure the Michigan Supreme

Court’s Sixth Amendment test adopted in People v. Reed,

449 Mich. 375, to limit review of Sixth Amendment claims

does not effectively deny access to a remedy where there is

a violation of federal law, as the Michigan Courts did in

this case.

14

When the failure to raise an issue results from igno-

rance of the law by an appellate attorney, it is not the

product of informed lawyering to which the Court should

pay any deference. See Kimmelman v. Morrison, 744 U.S.

365 (1986); Gray v. Lynn, 6 F.3d 265, 268-69 (5th Cir.

1993). There are numerous federal cases where appellate

counsel has been found ineffective under Strickland uv.

Washington, 466 U.S. 668 (1984), for failing to “raise

significant and obvious legal issues without any “conceiv-

ethene edhe en aha gy’ II J. Liebman, Federal

abeas Corpus Practice and Procedure, §26.3b (2001,

an 2004).

The refusal of Petitioner’s appellate counsel to raise a

valid, and non-frivolous, Fourth Amendment claim on direct

appeal, that appellate counsel had himself preserved in the

trial court, was a Sixth Amendment violation under a

proper view of Sixth Amendment case law.’ The same rule

should apply in Michigan post-conviction proceedings. The

Michigan Courts relied exclusively on a misapplication of

the Sixth Amendment to limit post-conviction review.

The Michigan Supreme Court relied on its flawed

analysis of the Sixth Amendment in error to impose this

procedural bar based on its mis-reading of Jones v. Barnes,

463 U.S. 745, 754, n.7 (1983), and Murray v. Carrier, 477

U.S. 478 (1986). Neither this Court's decisions in Jones nor

Murray provide a proper Sixth Amendment test that can

* Under Strickland, appellate counsel has a duty to investigate a

criminal defendant's file as a prerequisite to exercising sound appellate

strategy. Failure to conduct such investigation is not entitled to

deference. Orazio v. Dugger, 876 F.2d 1508, 1513 (11th Cir. 1989). See

Wiggins v. Smith, 539 U.S. 610, 615; 123 S. Ct. 2627; 156 L. Ed. 2d 471

(2003) (applying objectively unreasonable attorney conduct test in

finding trial counsel to have rendered ineffective assistance of counse! )

* See, eg., Smith v. South Carolina, 882 F.2d 896, 898 (4th Cir.

1989), cert. denied, 493 US 1046 (1990). In Clay v. Director, 749 F.2d

427, 430-32 (7th Cir. 1984), cert. denied, 471 U.S. 1108 (1985), the Court

held appellate counsel's failure to perfect an appeal! on valid issues, as

client wished, was sufficient cause under Wainwright vu. Sykes, 433 US.

72 (1977) to obtain relief later on the waived issues.

15

justify the Michigan Courts’ limitation on post-conviction

review of valid ineffective claims.” While Jones allows an

appellate attorney to withhold issues, this decision must

be done as part of the exercise of “sound professional

judgment of counsel.” Haskins v. Lecureux, 16 F.3d 1219,

1219 (6th Cir. 1994). In reaching this decision, the review-

ing court must look at the issues raised and the issues

waived. Ellis v. Lyneugh, 873 F.2d 830 (5th Cir. 1989).

Here the other issues that were raised on appeal would

not have conflicted with each other. The issues presented

were for the most part procedurally defaulted, and the

rejected issue was properly preserved. Jones v. Barnes,

463 U.S. 745 (1983), does not allow counsel to refuse to

raise significant and obvious issues, see Gray v. Greer, 800

F.2d 644 (7th Cir. 1986); Kurina v. Thieret, 853 F.2d 1409,

1417 (7th Cir. 1988), as the Michigan Supreme Court

improperly held in Reed." Only by a clear mis-reading of -

federal law have Michigan Courts limited post-conviction

" The Michigan Supreme Court's lead opiniou in Reed erroneously

=- treated Murray as an ineffective assistance of counsel case. 449 Mich.

at 384. Cf 449 Mich. at 414 (Levin, J. dissenting) (also noting the

analytical flaw in the majority's opinion). This reliance by the Michigan

Supreme Court on these cases was clear error. The defendant in Jones

v. Barnes had waived claims of his counsel’s ineffective assistance of

counsel. 463 U.S. at 754 0.7. Similarly, Murray v. Carrier, 477 U.S. 478

(1986) did not even involve an ineffective assistance of counsel claim.

474 U.S. at 484. The Michigan Supreme Court should have known that

the question decided in Murray was whether attorney error that was

less than ineffective assistance of counsel was a basis for relief. 477

U.S. at 484. The Court found it was not. Indeed, the Murray Court, in

part, declined to adopt the proposed cause exception, finding that the

more egregious errors could be redressed through ineffective assistance

of counsel claims. 477 U.S. at 496.

" The federal and state courts have refused to excuse derelictions

by defense counsel by blithely sweeping them under the “trial strategy”

or “appellate strategy” umbrella. These courts correctly recognize that

basic investigation of applicable law is a prerequisite to the exercising

of sound trial or appellate strategy. See, ¢.g., Neally v. Cabana, 764 F.2d

1173, 1178 (5th Cir. 1985), House v. Balkcom, 725 F.2d 608, 617-18 (11th

Cir. 1984); Crisp v. Ducksworth, 743 F.2d 580, 583 (7th Cir. 1983).

16

review so as to deny any relief to valid claims of a denial of

effective assistance of appellate counsel.

The Sixth Amendment does not permit a defendant's

appellate attorney in the direct appeal to waive a valid claim,

unless failure to raise the appeal issue is part of a sound

exercise of professional judgment based on a correct view of

the law.” It was not professionally reasonable for Petitioner's

original defense counsel not to raise the Fourth Amendment

claim in the direct appeal, when the case law suggests this is

a valid claim, particularly after this first defense counsel

raised that claim in the trial court. It is not reasonable for

counsel to waive a constitutional claim whose validity can be

determined with only cursory research.”

" For cases holding that counsel has a constitutional duty to

provide accurate advice to his client, see Risher v. United States, 992

F.2d 982 (9th Cir. 1993); Garmon v. Lockhart, 938 F.2d 120 (8th Cir.

1991); United States v. Loughery, 908 F.2d 1014 (D.C. Cir. 1990); Hill v.

Lockhart, 877 F.2d 698 (8th Cir. 1989), rehearing granted and aff'd, 894

F.2d 1009, cert. denied, 497 U.S. 1011 (1990).

" See, e.g., United States v. DeLaFuente, 8 F.3d 1333, 1336-37 (9th

Cir. 1993); Ratliff v. United States, 999 F.2d 1023, 1026 (6th Cir. 1993)

(counsel's failure to appeal erroneous restitution award was appellate

ineffective assistance of counsel); Dawan v. Lockhart, 980 F.2d 470, 473-

74 (8th Cir. 1992) (trial counsel should have challenged his own conflict

of interest in post-trial motion and on appeal, and failure to do so was

“cause” to justify raising issue in habeas action); Freeman v. Lane, 962

F.2d 1252, 1267-58 (7th Cir. 1992) (counsel’s failure to raise Fifth

Amendment claim on appeal despite ample precedent for claim was

ineffective assistance rising to the level of “cause”); Hollis v. Davis, 941

F.2d 1471, 1477-78 (11th Cir. 1991), cert. denied, 111 S. Ct. 698 (1991)

(trial counsel's failure to challenge racially discriminatory jury selection

practice because of his unfamiliarity with equal protection law consti-

tutes ineffective assistance of counsel and “cause” to avoid procedural

default); Rodriguez v. Young, 906 F.2d 1153, 1161 (7th Cir. 1990), cert.

denied, 111 8S. Ct. 698 (1991) (counsel's decision to forego motion was

not part of sound trial strategy or reasonable exercise of processional

judgment, thereby amounting to “cause” to permit habeas review in post-

conviction proceeding); Orazio v. Dugger, 876 F.2d 1508 (11th Cir. 1989)

(counsel ineffective in failing to challenge trial court’s denial of the

defendant's request for self-representation at trial level); Matire v.

Wainwright, 811 F.2d 1430 (llth Cir. 1987) (appellate counsel was

ineffective in failing to challenge a “blatant Fifth Amendment violation”),

(Continued on following page)

of the charges against him. (See discussion of this in Issue II).

The Court should remand this case to the Michigan

Supreme Court to clarify its approach to review of Sixth

Amendment claims in post-conviction state appeals. This

Court has found a federal question that was presented by

state court ruling holding its state law or constitution is to

be read in pari materia with the federal constitution, and

then proceeded to decide the federal questions raised by

the state courts in several cases."

I THE COURT SHOULD GRANT CERTIORARI TO

DETERMINE IF THE PETITIONER WAS DE-

TAINED IN VIOLATION OF THE FOURTH

AMENDMENT BY THE SIDE OF THE ROAD AF-

TER A ROUTINE TRAFFIC STOP OF HIS CAR

WHERE THERE IS AN ISSUE OF WHETHER HE

COULD HAVE BEEN VALIDLY ARRESTED, AND

INSUFFICIENT OTHER CAUSE EXISTED TO

DETAIN HIM FOR AN UNREASONABLY LONG

PERIOD OF TIME - LASTING AN HOUR OR

MORE - SO POLICE COULD CONDUCT A DOG

SNIFF OF HIS CAR TO JUSTIFY A SEARCH OF

THE TRUNK. .

The Issue Presented. This case raises the question

of whether the police may stop vehicles to detain drivers at

Houston v. Lockhart, 982 F.2d 1246 (8th Cir. 1993) (remanding case for

a hearing to determine whether there was a significant non-record

issue and whether counsel erred in failing to raise it).

“ See New York v. Class, 475 U.S. 106, 106 S. Ct. 960, 89 L. Ed. 2d

81 (1986), Maryland v. Garrison, 480 U.S. 79, 107 S. Ct. 1013, 94 L. Ed.

2d 72 (1987); ASARCO vw. Kadish, 490 U.S. 605, 109 S. Ct. 2037, 104 L.

Ed. 2d 696 (1989); Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct

2638, 110 L. Ed. 2d 528 (1990).

18

the roadside for a long period of time (e.g., from 30 minutes

to an hour or longer) until a narcotics detection team can be

called to dog sniff the vehicle. The question is a two-fold one:

First, what degree of justification do police ob-

tain to conduct investigations while holding a

driver in detention on the road during a routine

traffic stop, and

Second, are there any reasonable time limits that

can be imposed on the duration of that justifica-

tion to investigate a driver by holding them at

the side of the highway during the stop without

cause to arrest.

The Probable Cause To Arrest Griffin At The Scene

Is Lacking.

Robert Griffin presented a valid I[linois driver’s

license to Trooper Coleman as soon as he was stopped and

asked to produce identification. Trooper Coleman claimed

at the preliminary examination hearing that he arrested

Griffin for driving on a suspended license which is a

misdemeanor. But Trooper Coleman’s exact words on

cross-examination before trial were that Griffin's license

was not suspended because the suspension period was

over — and that the only reason he did not have a valid

Michigan driver’s license was due to his decision not to

pay the reinstatement fee. (App. 36.) The record is thus

clear that Griffin did not renew his Michigan driver’s

license, and so it lapsed, and he got an Illinois license. (/d.)

Thus, Trooper Coleman’s testimony does not support a

claim that he validly arrested Griffin due to driving on a

“suspended” license since, at the time of the traffic stop,

the police officer knew that the Michigan driver’s license

had merely “lapsed” or “expired” (i.e., after it had been

suspended, but after the suspension period was over).

The State offered no proof before or at trial to suggest

any other reason why Griffin could be arrested for driving

on a suspended license. The record shows to the contrary —

he could not be arrested for that reason. It is lawful to get

a license in another state after one’s license in Michigan is

19

no longer suspended. (See further discussion on this page).

The State never showed he obtained the Illinois license

improperly or that it was invalid.

The record is undisputed that Griifin’s Illinois driver’s

license was not suspended or invalid. Thus, the trunk of

Petitioner’s car was not validly searched pursuant to a

valid arrest for driving on a suspended license. The search

must be justified, if at all, on other grounds.

Griffin was residing in Chicago at the time of the

traffic stop, and as a non-resident he qualifies to drive in

Michigan on an Illinois license. (App. 31.) It is undisputed

that Griffin gave the police officer his [linois driver’s

license. (Jd.) He did so after telling the officer he was

driving to Michigan from [Illinois (where he lived and

worked). Griffin said he was coming to Michigan for a

short visit with son (who was living in Kalamazoo, Michi-

gan). (App. 35-36.)

Michigan law provides that a person may lawfully

driver a vehicle in Michigan if they possess a valid driver’s

license from another state. The Motor Vehicle Code in

Michigan exempts non-residents from having to obtain a

Michigan driver’s license. See People of Oak Park v.

Glantz, 124 Mich. App. 531, 335 N.W.2d 80 (1983) (holding

that a non-resident who has obtained an operator’s license

in his home state and has such license in his possession is

exempt from Michigan’s licensing requirements). Glantz

also holds that while non-residents are exempt from

having to obtain a Michigan license, they may still be

convicted of driving while license suspended if the driver’s

Michigan license was suspended at the time. Jd.

Petitioner Griffin’s post-conviction motions and briefs

sought to establish how there had been inadequate prob-

able cause to search the trunk. His post-conviction appeal

argued he was lawfully driving at the time of the stop and

so he could not be arrested lawfully for driving on a

suspended license. The claim was not heard by the Michi-

gan Courts. (App. 73-92.)

The fact that Petitioner elected to get an [Illinois

license, after allowing his Michigan driver’s license to

20

lapse, does not give probable cause to search the trunk.

Griffin sought to establish this to show the lack of prob-

able cause in his post-conviction review proceedings in

Michigan Court. If a hearing would show that his Michi-

gan driver's license was not suspended, then there was no

probable cause for his warrantless arrest by Trooper

Coleman based on Griffin’s driving while license sus-

pended. See generally, Devenpeck v. Anthony, __ U.S. __,

125 S. Ct. 588, 160 L. Ed. 2d 537 (2004), and Whren v.

United States, 517 U.S. 806, 812-815, 135 L. Ed. 2d 89, 116

S. Ct. 1769 (1996).

Using the same analysis, it is clear that the mere

existence of the cell phone, pager, address book and air

fresheners in the car do not amount to probable cause to

believe a crime was being committed. Almost every Ameri-

can has these items in their car at one time or another.

The average American would be shocked to learn if this

Court or any Court found that a driver of a vehicle could

be suspected of a crime, and that the entire car could

lawfully be searched merely due to possession of the above

personal items. It is simply not a reasonable conclusion

that an arresting officer could draw the conclusion that

possession of these items together in a vehicle reveals

evidence of the commission of a crime. See generally,

Maryland v. Pringle, 540 U.S. 366, 371, 157 L. Ed. 2d 769,

124 S. Ct. 795 (2003) (stating Fourth Amendment test that

the question of whether probable cause exists depends

upon the reasonable conclusion to be drawn from the facts

known to the arresting officer at the time of the arrest).”

Finally, the fact that an African American who

distrusted the police fails to tell an officer he has a prior

criminal record is neither a crime or proof of the commis-

sion of any present crime. As such, it cannot supply

“ This Court's other key cases on defining probable cause to arrest

include Devenpeck v. Anthony, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004),

United States v. Watson, 423 U.S. 411, 417-424, 46 L. Ed. 2d 598, 96

S. Ct. 820 (1976); and Brinegar v. United States, 338 U.S. 160, 175-176,

93 L. Ed. 1879, 69 S. Ct. 1302 (1949).

21

probable cause to believe that a crime is being committed

at that time. A driver who lies to police, by denying the

existence of a prior criminal record, may simply be trying

to “keep their head low” and “stay out of trouble” by

keeping off the police officer’s radar of suspicion. It is

actually more likely that the driver says this every time,

whether he is committing a crime at the time or not, as a

way of dealing with intrusive police inquiries. This Court

held in Berkemer that police can ask various kinds of

questions during a routine traffic stop, but the citizen

driving the vehicle has no duty to answer — either truth-

fully or not. See Berkemer v. McCarty, 468 U.S. 420, 104

S. Ct. 3138, 82 L. Ed. 2d 317 (1984). Under this analysis,

the right to refuse to answer the police officer’s questions

is constitutionally protected conduct, and not evidence of a

crime. Further, there is no law in Michigan that makes it a

crime to fail to answer a Michigan State Trooper’s ques-

tions during a routine traffic stop. (By contrast, there is

law that makes it a crime to give a false statement to a

federal agent). And no law exists in Michigan to punish

Petitioner’s failure to reveal his prior criminal record.

The police officer’s conduct suggests he knew he

lacked probable cause to search the trunk. This explains

why the officer sought to have the canine unit come to

sniff the trunk, rather than concluding that a crime was

occurring based on the above facis observed during the

stop. Suffice it to say that any claim that probable cause

existed to justify a search of the trunk of the car, based on

the above facts, and without a dog sniff is spurious. The

search of the trunk would have been clearly unlawful if it

had been conducted simply based on these observations.

The Petition Raises A Cert-Worthy Fourth Amend-

ment Post-Caballes Dog Sniff Issue.

The question presented here is whether the police

officer in this case unnecessarily prolonged the stop until a

canine unit arrived to conduct a dog sniff of the vehicle.

This Court held, in Illinois v. Caballes, 160 L. Ed. 2d 842,

125 S. Ct. 834, 846 (2005), that “a seizure that is lawful at

22

its inception can violate the Fourth Amendment if its

manner of execution unreasonably infringes interests

protected by the Constitution.” In contrast to the Illinois

State Trooper in Cabailes who stopped the speeding car on

the interstate highway for only 10 minutes, and had a

narcotics-detection dog in the car at the time of the stop,

the traffic stop and detention here lasted over 45 minutes,

and possibly well over an hour.” A limited period of deten-

tion of a motorist is reasonable where probable cause

exists to believe a traffic violation occurred. Delaware v.

Prouse, 440 U.S. 648, 659, 59 L. Ed. 2d 660, 99 S. Ct. 1391

(1979). Like Cabailes, in this case, the police lawfully

stopped the Defendant for speeding. However, the police

officers detained the Defendant alongside the road for far

longer than the 10 minutes this Court said is per se lawful

in Illinois v. Caballes, 160 L. Ed. 2d 842, 125 S. Ct. 834,

846 (2005).

It is settled law that the police officers in this case,

having stopped defendant for a traffic offense, could not

further detain the vehicle or its occupants unless some-

thing that occurred during the traffic stop generated the

necessary reasonable suspicion to justify a further deten-

tion. See, e.g., United States v. Mesa, 62 F.3d 159, 162 (6th

Cir. 1995).

This Court’s recent Caballes decision does not read

the Fourth Amendment to allow any driver caught speed-

ing to sit for unreasonably long periods of time, baking in

the sun, so that a drug dog sniff can occur. Unlike in

Caballes, this is a case where the police officer unnecessar-

ily prolonged the stop. The original stop was prolonged an

hour or so, or more, until a canine unit arrived to conduct

a dog sniff of the vehicle. The challenge here is made to

" As to the issue of the precise length of the detention, the record

fails to state how long it took the police canine unit to arrive after Trooper

Coleman called in that unit to come about 45 minutes after the initial

stop. If the canine unit took more than 45 minutes to arrive, the stop

lasted 90 minutes. But the stop was no shorter than about an hour

(assuming it took the canine unit 15 minutes or more to get to the scene).

23

the long detention on the highway before a canine sniff

took place.

The mere fact that the police discover drugs does not

justify a long, random detention to search. The police must

justify the length of the detention by showing it was

reasonable, that they were diligent ard efficient in their

investigation. All that this Court has said is that the police

must only detain a suspect for investigation for a reason-

able period of time. See United States v. Sharpe, 470 U.S.

675, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) (upholding a

continued detention that lasted only 20 minutes where

police were waiting to detain another car seen driving with

the vehicle stopped first). In Sharpe, the Court held that

the investigative stop of only 20 minutes was reasonable

given the suspected acted evasively. But, this Court in

Sharpe also held the stop may not continue indefinitely,

and if it does, then it ceases to be an investigative stop.

The rule adopted in Sharpe echoed the holding of the

Court on the same issue in its original drug dog case, see

United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L.

Ed. 2d 110 (1983) (airport drug sniff case; police had rea-

sonable suspicion drug courier was arriving in airport; and

took suitcase to other airport and seized him 90 minutes

while taking suitcase to another airport). This Court in

Place explained that “the length of the detention of respon-

dent’s luggage alone precludes the conclusion that the

seizure was reasonable in the absence of probable cause.”

Place, 462 U.S. at 709. The Place Court held that a pro-

longed detention of a person for the sole or primary purpose

of holding them so that a dog may sniff the drugs is a

violation of Fourth Amendment because it is fruit of the

poisonous tree. See generally, LaFave, Search and Seizure

Vol. III, Sec. 9.3 (West 2004), p. 377-389, et seq.

Settled Fourth Amendment Rules Should Be Re-

fined To Guide Lower Courts.

The Fourth Amendment law in this area is in need of

further refinement. The Court’s Caballes and Sharpe

decisions provide little guidance that would serve to curb

24

aggressive police tactics during routine traffic stops that

result in unreasonably lengthy detentions.” By accepting

this case, the Court may adopt of set of guidelines to more

reliably cabin police discretion. The facts in this case

provide a good example of when detention after a traffic

stop is unreasonably lengthy.

The Court's recent Cabailles decision, viewed against a

background of Circuit Court decisions upholding lengthy

detentions, may send the wrong signal from this Court to

the police. This case involves a stop that lasts an hour or

more at the road side.“ In Sharpe, this Court found a 50

minute detention to be unreasonable — i.e., a time period

very close to the one hour period. The Court may use this

case to draw a similar bright line rule of thumb which

provides a maximum time when the length of the deten-

tion makes it presumptively unreasonable. This rule could

be applied with the 10 minute minimum safe harbor rule

adopted for presumptively valid searches in Caballes.

Petitioner relies on recent Sixth Circuit decisions,

such as Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003),

that held a 42 minute detention of a driver stopped for a

traffic offense is unreasonably long. Other Circuits have

followed the Sixth Circuit approach.” Some state courts

have struck down as too long detentions as short as 20

" For a thoughtful analysis of the dimensions of this problem, see

“Article: Curbing Aggressive Police Tactics During Routine Traffic Stops

in Mlinois,” 36 Lay. U. Chi. L.J. 819 (Spring 2005).

™ The one hour period of detention is a convenient threshold time

period to mark the amount of time after which such detentions become

suspect in almost every case. See generally U.S. v. Rutherford, 824 F.2d

831, 834 (10th Cir. 1987) (holding that one hour investigatory detention

of car and driver not converted to unlawful! arrest when length due in

part to 30 minute delay caused by computer problem).

” See, e.g., United States v. Bejarano-Ramirez, 35 Fed. Appx. 740,

2002 U.S. App. LEXIS 8321 (10th Cir. 2002) (unpublished opinion)

(holding 84 minute detention of driver after traffic stop was too long,

violating Fourth Amendment so that drugs found from deg sniff must

be suppressed).

25

minutes.” In these cases, the Circuits have made clear

that the length of the detention may not exceed the time

that is warranted to investigate based on the suspicion

developed at the time of the initial stop.”

The Eighth Circuit also has held that the questions a

police officer asks during a routine traffic stop, as well as

the context of the search, are significant in deciding if the

police conduct is reasonable in particular contexts so as to

justify lengthy detentions and delays in conducting a dog

sniff after a routine traffic stop. See United States v.

Hernandez, 313 F.3d 1206 (9th Cir. 2002), citing United

States v. Aldaz, 921 F.2d 227, 229 (9th Cir. 1990); United

States v. Gill, 280 F.3d 923 (9th Cir. 2002) (upholding six

day delay in conducting dog sniff). Further evidence that

this Court should grant this petition is the conflict within

Circuits in regard to when a lengthy roadside detention to

conduct a canine sniff for drugs is unreasonable.”

* See, e.g., Pryor v. State, 122 Md. App. 671, 716 A.2d 338 (1998)

(the Court of Special Appeals once again held that a twenty-five-minute

roadside detention while waiting for a drug-sniffing dog was unreason-

able and violated the defendant’s Fourth Amendment rights.). In so

holding, the rule the Court adopted was that an automobile stop for a

minor traffic violation should take no longer than reasonably necessary

to issue a citation for the violation committed Accord Graham v.

Maryland, 119 Md. App. 444, 705 A.2d 82 (1998).

™ The Fifth Circuit ruled that the detention after a routine traffic

stop was lengthened to an unreasonable period of time to conduct a dog

sniff and this violated the Fourth Amendment. See United States v.

Machuca-Barrera, 261 F.3d 425, 433 (5th Cir. 2001). The Fifth Circuit

reached the same basic result for similar reasons in another case

United States v. Portillo-Aguirre, 311 F.3d 647, 657 (5th Cir. 2002)

(holding that “[iJf an agent does not develop reasonable suspicion of

idrug] activity before the justifying purpose of a checkpoint stop has

been accomplished, he may not prolong the stop.”).

" In Sanchez, the Eighth Circuit found no de facto arrest, and a

reasonable detention, where the police stopped a driver for a traffic

offense for over 45 minutes to wait for a dog to sniff for drugs. See

United States v. Sanchez, 2005 U.S. App. LEXIS 16694 (8th Cir. August

10, 2005). In that case, the canine unit was available, as was the case in

Caballes, but the police waited 40 minutes before using the canine unit

to conduct the search. It was held to be a lawful detention. Accord

(Continued on following page)

26

In summary, the above cases demonstrate that an

obvious split exists within and between the Circuits on the

issue of when a roadside detention of a driver after a

traffic stop lasts almost an hour to conduct a dog sniff of

the car. If there is no post-Caballes refinement in the

Fourth Amendment test by this court — to reign in the

outlying cases of the Circuits and State highest courts that

have not followed the Court’s direction to be reasonable -

then the police will abuse the privilege to detain, and

abuse this privilege by engaging in unjustifiably long

roadside detentions. A rule needs to be created at the other

end of the spectrum — i.e., adoption of a rule on when

detentions extend too far beyond the initial justifications

of the traffic stop.

The Rule Of Fourth Amendment Law Petitioner

Seeks Will Help The Lower Courts.

The Court should expressly hold that a routine traffic

stop cannot be analogized to a Terry stop”; and rather,

that such stops should be governed by a refined Fourth

Amendment rule that would better address the unique

concerns involved in citizen-police encounters during

routine traffic stops. The traffic stop justification should

not extend to authorize lengthy detentions to await a

canine unit for over an hour, absent compelling reasons.

The issue the Court should clarify is whether a lengthy

traffic stop, and detention at the scene for investigation,

should be treated as within a new Fourth Amendment

category. Under current doctrine, this Court has recognized

only three categories of police-citizen encounters in its

Chalfy v. Turoff, 804 F.2d 20, 23 (2d Cir. 1986) (25 to 45 minute delay of

limousines to write tickets for license violations found to be not

unreasonable despite inconvenience to drivers and passengers). The

Eighth Circuit found in another case that a detention beyond initial

traffic stop was unreasonable when the officer had driver wait in police -

cruiser 40 minutes until warning ticket issued. U.S. v. Ramos, 20 F.3d

348, 352 (8th Cir. 1994), cert. denied, 115 S. Ct. 2015 (1995).

” Terry v. Ohio, 392 US. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).

27

Fourth Amendment jurisprudence: (1) the consensual

encounter, (2) the investigative stop, and (3) custodial

arrest. None of these ways of categorizing the stop and

detention here either describes or adequately protects the

competing interests and rights at stake in this type of

citizen-police encounter. A new, fourth category of types of

detention — ie., the non-custodial arrest — is needed to

guide Fourth Amendment analysis.”

This case is ideal to define when a stop and detention

by police after a traffic stop violates the Fourth Amend-

ment because the period of detention to conduct a dog sniff

is too lengthy.

Il. CERTIORARI SHOULD BE GRANTED TO RE-

CONSIDER THIS COURT'S TRADITIONAL BAR

ON HEARING CERTIORARI PETITIONS FROM

STATE COURT POST-CONVICTION PROCEED-

INGS WHERE THE ANTI-TERRORISM AND

EFFECTIVE DEATH PENALTY ACT MAY

FUNCTIONALLY BAR HABEAS COURT RE-

VIEW OF THE QUESTION OF THE SCOPE OF

THE STATE APPELLATE COUNSEL'S SIXTH

AMENDMENT DUTY TO THEIR CLIENTS.

Petitioner asks that this Court relax its traditional

approach of declining to hear petitions for certiorari in

appeals from state post-conviction proceedings. This Court

has refused to hear certiorari petitions coming from state

post-conviction proceedings without establishing any

definitive policy or setting forth a rationale for exceptions

that ought to exist, at least since Case v. Nebraska, 381

U.S. 336, 85 S. Ct. 1486, 14 L. Ed. 2d 422 (1965) (Clark, J.,

* For a well developed argument advocating the creation of a

category of “custodial arrest” under Fourth Amendment doctrine to

resolve issues arising during routine traffic stops, see David A. Moran,

“Traffic Stop, Littering, Tickets, and Police Warnings: The Case for a

Fourth Amendment Non-Custodial Arrest Doctrine,” 37 Am. Crim. L.

Rev. 1143 (Summer, 2003).

28

concurring); Huffman v. Florida, 435 U.S. 1014, 98 S. Ct.

1888, 56 L. Ed. 2d 298 (1990) (Stevens, J., concurring).”

The Case v. Nebraska doctrine should not be relied on

to deny review of the important Sixth Amendment consti-

tutional question presented in this Petition given the

subsequent statutory developments. Subsequent to these

decisions, Congress has passed, and the President has

signed, the Anti-Terrorism and Effective Death Penalty

Act of 1996. This Act effectively eradicates protections this

Court relied on in Case, Huffman and Kyles. Under

AEDPA, a federal court is required to defer to a state

court’s interpretation unless it is unreasonable. To be

reviewed, the state court’s result must be not only incor-

rect but also objectively unreasonable. See Wiggins, 539

U.S. at 520-521, 156 L. Ed. 2d 471, 123 S. Ct. 2527.

Jf this Court denies review, then Petitioner will have

to raise his Fourth and Sixth Amendment claims in federal

habeas court proceeding where he may be denied relief

even though he has a legally meritorious claim of denial of

federal constitutional rights. The reason he may lose in

federal habeas review, despite having a valid claim, is that

the federal court must give statutory deference to errone-

ous, but reasonable, state rulings on issues involving

federal constitutional rights. See Anti-Terrorism and

Effective Death Penalty Act of 1996, Pub. L. 104-132, 110

Stat. 1214. This Court made the limits of habeas corpus

review clear in Woodford v. Visciotti, 537 U.S. 19, 24-25,

154 L. Ed. 2d 279, 123 S. Ct. 357 (2002) (per curiam), by

holding that, under AEDPA, “a federal habeas court may

not issue the writ simply because that court concludes in

its independent judgment that the state-court decision

“ This Court has never held that a state is consti(utionally

obligated to provide post-conviction remedies in the first place, and so it

“usually deems federal habeas proceedings to be the more appropriate

avenues for consideration of federal constitutional claims.” Kyles v.

Whitley, 498 U.S. 931, 932, 111 S. Ct. 333, 112 L. Ed. 2d 298 (1990).

29

applied [the law) incorrectly.” The State also may seek to

limit Petitioner from obtaining relief in federal habeas

corpus proceedings because he raises a Fourth Amend-

ment claim.” This Court should remand the case back to

the Michigan Courts to review the claims since federal

habeas corpus review may not grant full relief.

CONCLUSION

The reason to grant this Petition is to insure that a

litigant who has a valid Sixth Amendment claim has some

forum in which to obtain the remedy for a clear violation of

the Sixth Amendment. In this case, Petitioner’s appellate

attorney on direct appeal waived his Fourth Amendment

rights by not raising the issue in the direct appeal. The

Michigan Courts denied relief on that claim in the post-

conviction proceedings in violation of their self-imposed

duty to review all claims of violations of federal constitu-

tional rights. This Court’s decisions dictate that the

Petitioner must have his claim reviewed fully on the

merits. Congress passed AEDPA believing the States

allowed adequate post-conviction review of claims of

violations of constitutional rights leading to conviction.

The Michigan system of denying counsel in guilty plea

appeals was found to be unconstitutional by this Court

last Term. See Halbert v. Michigan, __ U.S. ___, 125 S. Ct.

2582, 162 L. Ed. 2d 552 (2005).

* Federal habeas court review of Petitioner’s Fourth Amendment

claim may be limited by the doctrine in Stone v. Powell, 428 U.S. 426

(1976). Stone held that federal habeas corpus relief is not available to

redress violations of the Fourth Amendment exclusionary rule — i.e., to

require suppression of the fruits of unlawful arrests, searches and

seizures. Stone does not apply here, however, since the petitioner was

not afforded a full and fair opportunity to litigate that claim in state

court.

30

This petition for certiorari asks that this Court ad-

dress a federal constitutional question in a similar manner

as the Court has done in those prior cases. This case would

follow the same theme as Last Term’s case striking down

Michigan’s system of denying counsel to defendants on

direct appeal in all guilty plea cases due to its failure to

properly protect Sixth Amendment rights. This case raises

a similar issue. The feature of the Michigan appellate

system at issue here is that Michigan bars review of the

claim in the post-conviction review proceedings, after the

appellate attorney had failed to raise the valid claims. The

only reason why Michigan has this limit, moreover, is that

the Michigan Supreme Court erred in its reading of the

scope of Sixth Amendment rights to ineffective assistance

of appellate counsel under this Court’s decisions. If this

Court clarifies that the Sixth Amendment is broader, then

Michigan Courts will allow the claims.’

In conclusion, Petitioner asks this Court to instruct

the Michigan Supreme Court to reach and decide the

Fourth Amendment claim raised by Petitioner in his post-

conviction mot*icn if the Michigan Courts find, on remand,

that Petitioner’s first appellate attorney was ineffective.

For these reasons, Petitioner Robert Lanell Griffin re-

spectfully requests that this Court grant this petition for a

writ of certiorari.

Respectfully submitted,

PATRICK LEVINE ROSE d

Counsel of Record for Petitioner Griffin

321 Woodland Pass, Suite 400

East Lansing, MI 48823

(517) 351-7673

INDEX OF EXHIBITS FOR

CERT PETITION - Continued

Petitioner Robert Griffin’s Motion for Relief from

Judgment (June 20, 2002) with excerpts from

Brief in Support of Motion for Relief from Judg-

ment (June 20, 2002) (Statement of Facts and

Procedural History, pages 1-5, and Issue VI, pp.

43-44, and Relief Requested, page 49.)................ App. 80

App. iii

INDEX OF EXHIBITS FOR

CERT PETITION — Continued

Page

Petitioner Robert Griffin’s Delayed Application for

Leave to Appeal in~ Michigan Supreme Court

Preserving Ineffective Assistance of Counsel

laim in Post-Conviction (Second) Appeal in

Michigan Court System (dated October 15, 2004),

pp. i-iv, vi, viii, x, 1-6, 34-38, 43, 49..............ccccccee App. 92

. App. 1

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE

STATE OF MICHIGAN UNPUBLISHED

Plaintiff-Appellee, February 25, 2000

y No. 216720

ROBERT LANELL GRIFFIN, 1 No 98.403728-FH

Defendant-Appellant.

Before: Sawyer, P.J., and Gribbs and McDonald, JJ.

PER CURIAM.

Defendant was convicted by a jury of possession with

intent to deliver greater than 225 but less than 650 grams

of cocaine, MCL § 333.7401(2\aXii); MSA 14.15(7401X2XaXii).

He was sentenced as a second offender, MCL § 333.7413(2);

MSA 14.15(7413)(2), to a term of twenty to sixty years. We

affirm.

On appeal, defendant contends that the trial court

abused its discretion by allowing the arresting officer to

testify regarding the significance he placed upon the

bundled air fresheners, cellular telephone, and pager

found in the car after defendant had been arrested. It is

defendant's contention that this was drug courier profile

testimony improperly offered by the prosecution as sub-

stantive evidence of his guilt. There is no merit to this

claim.

A drug courier profile is a somewhat informal compila-

tion of otherwise innocuous characteristics believed by law

enforcement to be typical of persons unlawfully trafficking

App. 2

in narcotics. See People v Hubbard, 209 Mich App 234,

239; 530 NW2d 130 (19965). These profiles are commonly

by poli

has previously held that because such profiles “may

v Murray, 234 Mich App 46, 53; 593 NW2d 690 (1999);

Hubbard, supra at 240-241. In other words, the evidence

may not be admitted for the purpose of demonstrating that

the defendant is guilty because he fit the characteristics of

a certain drug profile. This is not to say, however, that

testimony concerning such characteristics is to be consid-

ered inadmissible on al] grounds. Evidence concerning

background or modus operandi does not specifically

address the guilt or innocence of the defendant, but rather

enables the jury to understand other evidence that does

address guilt or innocence. Murray at 54.

Noting that the distinction between the proper use of

profile evidence as background or modus operandi evi-

dence and its improper use as substantive evidence of guilt

is often subtle, the Murray Court outlined several factors

which it considered helpful to a determination of the

admissibility of such evidence:

First, the reason given and accepted for the ad-

mission of the profile testimony must only be for a

jury to infer the defendant's guilt. The prosecutor

App. 3

must introduce and argue some additional evi-

dence from the case that the jury can use to draw

an inference of criminality; multiple pieces of a

profile do not add up to guilt without something

more. In other words, the pieces of the drug pro-

file by themselves should not be used to establish

the link between innocuous evidence and guilt.

Third, because the focus is primarily on the jury's

use of the profile, courts must make clear what is

and what is not an appropriate use of the profile

evidence. Thus, it is usually necessary for the

court to instruct the jury with regard to the

proper and limited ‘se of profile testimony.

Fourth, the expert witness should not express his

opinion, based on a profile, that the defendant is

guilty, nor should he expressly compare the de-

fendant’s characteristics to the profile in such a

way that guilt is necessarily implied. (Id. at 56-57

(Emphasis added) (Citations omitted).]

In this case, the prosecutor offered two proper reasons

for admission of the disputed testimony, each of which was

ostensibly proper. First, the prosecutor a- sued at trial that

the testimony was necessary to explain the events which

led the trooper to conduct a search of defendant’s vehicle.

On this basis, the testimony was not improper drug profile

evidence, but rather permissible testimony offered to

explain why the trooper continued his investigation of the

automobile following defendant’s misdemeanor arrest. See

United States v Gomez-Norena, 908 F2d 497, 501 (CA 9,

1990). The disputed testimony provided the logical connec-

tion which gives meaning to the trooper’s actions, without

which the jury would have been forced to speculate on the

trooper’s motive or rationale in furthering the investiga-

tion. See, e.g., People v Flynn, 93 Mich App 713, 719-720;

287 NW2d 329 (1979). The prosecutor also argued that the

App. 4

testimony was necessary to educate the jury as to the

drug-related uses for these otherwise innocuous items of

which the jury would be otherwise unaware, again, a

permissible use of profile evidence. Murray, supra at 59.

Nor was the profile testimony offered by the trooper the

sole evidence upon which the jury could infer guilt. The

prosecutor did not mention the profile evidence during

closing arguments, and did not attempt to present that

evidence as a link between defendant and the illegal drugs.

At trial, defendant conceded that the sole issue material to

defendant’s guilt or innocence was whether he had knowl-

edge of the cocaine found in the trunk of the car. A narcotics

officer who was qualified as an expert on the value of

cocaine testified that the more than 500 grams of cocaine

found in the trunk of the car had a value of between $9,000

and $30,000 depending upon how the drug processed and

sold. Considering that defendant was the sole occupant of

the car at the time it was stopped, the jury could reasonably

infer that defendant had knowledge of the cocaine as it is

unlikely that an individual would entrust such a highly

valuable cargo to an unknowing transporter. It could

likewise be inferred that the writing on the back of the

business card found during the arresting officer’s search

was consistent with a record of drug sales or purchases.

While ownership of the card was disputed, the prosecutor

also introduced an address book found on defendant that

contained an abbreviated name identical to one of those

found on the back of the card, strengthening the inference

that the card was in fact defendant’s. Furthermore, the

claimed owner of the card, who was defendant’s cousin and

the owner of the car in which the cocaine was found,

testified at trial that although he received that business

card from a friend, he could not recall that friend’s name.

App. 5

Defendant's cousin further stated that he did not know the

real names of any of the people whose names were abbrevi-

ated on the card, although he had written them down

himself, and could not remember what the numbers printed

next to each name represented. Moreover, this individual

stated that he was certain that he and defendant had no

common associates or friends.

As defendant argues, no cautionary instruction was

given in this case. However, because defendant failed to

request any instruction limiting the use of the trooper’s

testimony, the court’s failure to so instruct the jury cannot

be grounds for setting aside the verdict. See MCL § 768.29;

MSA 28.1052. Moreover, the lack of a jury instruction on

this matter is merely one consideration in the determina-

tion of the admissibility of the disputed evidence. See

Murray, supra at 57, citing United States v Williams, 957

F2d 1238, 1241 (CA 5, 1992); Gomez-Norena, supra.

Finally, the trooper who testified in this case did not

attempt to link the profile testimony to defendant in a

manner that would suggest his guilt simply from his

resemblance to profile characteristics. The trooper merely

testified that in his experience drug couriers often use air

fresheners to mask the smell of drugs, and that some use

pagers and cellular telephones in order to stay in constant

communication with customers and suppliers. This testi-

mony was proper explanation of the modus operandi of

drug dealers, but left to the jury the decision as to whether

these innocuous items were in fact used for these purposes

by defendant. Murray, supra at 62.

As a final consideration, we note that defendant also

argues that because the trooper was never qualified as an

expert by the court, his testimony as to the significance of

App. 6

these items was admitted in error. However, at trial

defendant did not object to the trooper’s testimony on ‘his

basis. Defendant's argument below was merely that the

substance of the trooper’s testimony was improper, not

that the trooper lacked the “knowledge or expertise” to

reliably testify to such facts. See MRE 702. Moreover, on

appeal, defendant does not challenge the trooper’s qualifi-

cations as an expert regarding his observations during a

drug arrest, but only the fact that the he was not specifi-

cally qualified as such an expert by the trial court.

Where there has been no objection, this Court will not

review the admission of evidence absent a showing of mani-

fest injustice. MRE 103(a\1); People v Metzler, 193 Mich App

541, 548; 484 NW2d 695 (1992). A person may be qualified to

testify as an expert witness by virtue of his or her knowl-

edge, skill, experience, training, or education in the subject

matter of the testimony. MRE 702; see also People v Fowler,

193 Mich App 358, 362-363; 483 NW2d 626 (1992). In this

case, the trooper testified that he had nearly six years of law

enforcement experience and that he had participated in

many traffic stops that had resulted in the discovery of

illegal drugs. Thus, the trooper would in all probability have

been qualified as an expert for purposes of his limited

testimony even if defendant had raised any challenge to his

qualifications to testify regarding the modus operandi of

drug traffickers. We find no manifest injustice.

Affirmed.

/s/ David H. Sawyer

/s/ Roman S. Gribbs

/s/ Gary R. McDonald

App. 7

Court of Appeals, State of Michigan

ORDER

People of MI v Robert Lanell Griffin. David H. Sawyer

Docket No. 216720 Presiding Judge

LC No. 98-403728-FH Roman S. Gribbs

Gary R. McDonald

Judges

The Court orders that the motion for rehearing is

DENIED.

/s/ David H. Sawyer

Presiding Judge

[SEAL] A true copy entered and certified by

Carl L. Gromek, Chief Clerk, on

May 24,2000 /s/ Carl L. Gromek

Date Chief Clerk

App. 8

MICHIGAN COURT OF APPEALS

Case Number: 216720

PEOPLE OF MI V ROBERT LANELL GRIFFIN

1 PEOPLE OF PL-AE PRS (49413) Mead Aaron J

MICHIGAN 811 Port St ‘

Oral Argument: Y County Courthouse

Timely: Y St Joseph MI 49085

269-983-7111

2 GRIFFIN DF-AT RET (14978) Hills James D

ROBERT 425 South Westnedge

LANELL Kalamazoo MI 49007-5051

Oral Argument: Y 616-344-6771

Timely: Y

Status: Case Concluded; File Archived SCT Status: CLOSE

1/4/1999 ~=1 Claim of Appeal - Criminal

Proof Of Service Date: 12/30/1998

Check #: 68909 Fee: $250.00

Attorney: 14978 - HILLS JAMES D

12/1/1998 2 Order Appealed From

From: BERRIEN COUNTY CIRCUIT COURT

Case Number: 98-403728-FH

Trial \ . art Judge:

27645 NELSON THOMAS E

Comments. DEL/MFG CONT SUBST 225-64

1/21/1999 5 Notice of Filing Transcript

Date: 12/29/1998

Reporter: 4617 - SPRINGMAN TERRI L

2/19/1989 6 Motion: Bond

Proof of Service Date: 2/16/1999

Check No.: 90061 Fee: $75.00

Filed By Attorney. 14978 — HILLS JAMES D

For Party: 2 GRIFFIN ROBERT LANELL

DF-AT

3/1/1999

4/7/1999

4/15/1999

5/3/1999

App. 9

7 DEFECTIVE FILING LETTER

For Party: 2 GRIFFIN ROBERT LANELL

DF-AT

Attorney: 14978 —- HILLS JAMES D

Comments: TO HILLS FOR $75 FEE & 4 CC

MOTN BOND

8 Brief: Appellant

Proof of Service Date: 3/1/1999

Oral Argument Requested: Y Timely Filed: Y

Filed By Attorney: 14978 — HILLS JAMES D

For party: 2 GRIFFIN ROBERT LANELL

DF-AT

9 Oral Arg Advise Ltr Sent

10 Stips: Extend Time - AE Brief

Extend Until: 5/3/1999

Filed By Attorney: 1111 - CHERRY JAMES

AP/A

For Party: 1 PEOPLE OF MICHIGAN PL-AE

11 Submitted On Motion Docket

Event: 6 Bond

District: G Item #: 30

12 Order: Bond - Deny

Event: 6 Bond

Panel: JPH, WBM, MRS

13 Noticed

Record: REQST Request Mailed: 4/7/1999

14 Record Filed

Commenis: FILE 4TR -

16 Brief: Appellee

Proof of Service Date: 4/30/1999

Oral Argument Requested: Y Timely Filed: Y

Filed By Attorney: 49413 - MEAD AARON J

For Party: 1 PEOPLE OF MICHIGAN PL-AE

6/13/2000

7/6/2000

App. 10

21 Submitted on Case Call

District: G Item #: 6

Panel: DHS, RSG, GRM

21 Opinion - Per Curiam - Unpublished

Click here to view document in PDF format.

32 Motion: Reconsideration of Opinion

Proof Of Service Date: 4/13/2000

Check No.: 1107 Fee: $75.00 Receipt #: 8478

Filed By Attorney: 14978 — HILLS JAMES D

For Party: 2 GRIFFIN ROBERT LANELL

DF-AT

Answer Due: 4/27/2000

33 Submitted On Reconsideration Docket

Event: 32 Reconsideration of Opinion

District: C Item #: 2

34 Miscellaneous Receipt

Date: 5/11/2000

Check #: 2370 Fee: $15.00 Receipt #: 2167201

Attorney: 43265 — ROSE PATRICK L

35 Order: Reconsideration - Deny -

Appeal Remains Closed

Event: 32 Reconsideration of Opinion

Panei: DHS, RSG, GRM

36 Remittitur & Record Returned -

Close Out

Comments: LCF; 4TR-BERRIEN

37 Miscellaneous Receipt

Date: 7/6/2000

Check #: 2407 Fee: $8.50 Receipt #: 2167202

Attorney: 43265 — ROSE PATRICK L

7/8/2000

App. 11

38 Miscellaneous Receipt

Date: 7/6/2000

Check #: 2408 Fee: $1.50 Receipt#: 2167203

Attorney: 43265 —- ROSE PATRICK L

39 Delayed Application for Leave to SCt

40 Miscellaneous Filing

41 Supreme Court - File Sent To

Comments: SC #117280

42 COA File -- Received

43 Trial Court Record Received

44 Miscellaneous Filing

45 Brief in Opposition to SCt Application

46 SCt Order: Deny

47 Supreme Court ~ File Ret’d By -

Close Out

48 SCt Motion: Reconsideration

49 Miscellaneous Filing

50 Answer to Pleading at SCt

51 Answer to Pleading at SCt

52 SCt Order: Denying Motion

The Court orders that the delayed application for

leave to appeal is DENIED for failure to meet the burden

of establishing entitlement to relief under MCR 6.508(D).

/s/ E. Thomas Fi

Presiding Judge

[SEAL] A true copy entered and certified by Sandra

Schultz Mengel, Chief Clerk, on

Aug. 20, 2004 /s/ Sandra Shultz Mengel

Date Chief Clerk

Justices

PEOPLE OF THE SC: 127236

STATE OF MICHIGAN, COA: 254433

Piaintiff-Appellee, Berrien CC: 98-403728-FH

v

ROBERT LANELL GRIFFIN,

Defendant-Appellant. ,

On order of the Court, the application for leave to

appeal the August 20, 2004 order of the Court of Ap-

peals is considered, and it is DENIED, because the

defendant has failed to meet the burden of establishing

entitlement to relief under MCR 6.508(D).

[SEAL] I, CORBIN R. DAVIS, Clerk of the Michi-

gan Supreme Court, certify that the foregoing

is a true and complete copy of the order entered

at the direction of the Court.

May 31 , 2005 /s/ Corbin R. Davis

Clerk

App. 14

MICHIGAN COURT OF APPEALS

Case Number: 254433

PEOPLE OF MI V ROBERT LANELL GRIFFIN

1 PEOPLE OF £PL-AE PRS (49413) Mead Aaron J

MI 811 Port St

County Courthouse

St Joseph MI 49085

269-983-7111

2 GRIFFIN DF-AT RET (43265) Rose Patrick L

ROBERT 321 Woodland Pass

LANELL Suite 400

East Lansing MI 48823

517-351-7673

Status: Case Concluded; File Archived SCT Status: CLOSE

3/19/2004 1 Delayed App for Leave - Criminal

Proof Of Service Date: 3/19/2004

Check #: 690 Fee: $375.00

Receipt #: 2544331

Answer Due: 4/9/2004

Attorney: 43265 —- ROSE PATRICK L

3/21/2003 2 Order Appealed From

From: BERRIEN COUNTY CIRCUIT COURT

Case Number: 98-403728-FH

Trial Court Judge:

27645 NELSON THOMAS E

Nature of Case:

Relief fram Judgment

3/19/2004 3 Transcript Filed By Party

Date: 3/19/2004

Reporter: 4617 - SPRINGMAN TERRI L

Filed By Attorney: 43265 —- ROSE PATRICK L

Hearings:

9/2/1998

11/6/1998

App. 15

8/4/2004 4 Submitted On Special Motion Docket

Event: 1 Delayed App for Leave — Criminal

District: L Item #:16

8/20/2004 5 Order: Application - Deny -

Delayed App for Leave

Event: 1 Delayed App for Leave — Criminal

Panel: ETF, MJT, PMM

Attorneys: 43265 - ROSE PATRICK L

9/20/2004 6 File Closed-Out

10/15/2004 7 Application for Leave to SCt

10/18/2004 8 Supreme Court - File Sent To

Comments: 8C 127236

10/19/2004 9 COA File - Received

10/26/2004

10/26/2004 10 Trial Court Record Received

5/31/2005 11 Deny Application/Complaint

6/1/2005 12Supreme Court - File Ret’d By -

Close Out

App. 16

STATE OF MICHIGAN

IN THE 2nd CIRCUIT COURT FOR THE COUNTY

OF BERRIEN

PEOPLE OF THE

STATE OF MICHIGAN

Plaintiff, Hon. John T. Hammond

File No. 98-403728

vs.

mint Getta MOTION TO SUPPRESS

Defendant,

Angela Pasula, Pros. Atty. James D. Hills (P 14978)

St. Joseph Courthouse Attorney for Defendant

811 Port Street 425 S. Westnedge

St. Joseph, Mi. 49085 Kalamazoo, Michigan 49007

MOTION TO SUPPRESS EVIDENCE

Now comes Robert L. Griffin, by and though [sic] his

Attorney James D. Hills, and for his Motion to Suppress

Evidence states as follows:

1. That the Defendant Robert L. Griffin was arrested

on August 21, 1998 and charged with Possession with

Intent to Deliver 225 grams or more, but less than 650

grams of Cocaine.

2. That on the aforesaid date, your Defendant, was

stopped for speeding on I-94 in Berrien County, by a

Michigan State Police Officer.

3. That your Defendant was arrested for a sus-

was driving with a valid Dlinois Drivers License and was

living and working in the State of Illinois.

App. 17

4. The Defendant was asked for his consent to search

the motor vehicle. He told the Officer no, however, the

Officer searched inside the vehicle without Mr. Griffin’s

permission. Mr. Griffin was the only person in the vehicle.

The vehicle was owned by a relative who lived in [linois.

5. The Officer having already arrested the Defen-

dant, however, told your Defendant he (the Officer) was

not sure he was going to take your Defendant to jail. This

was before the search of the motor vehicle and after the

Defendant was handcuffed and placed under arrest.

6. The Officer searched the inside of the vehicle and

found no illegal items. The Officer then cailed for the

canine unit and the trunk was searched where the cocaine

was located.

7. The Defendant was then arrested for the present

charge and taken to jail.

Wherefore your Defendant, respectfully requests this

Honorable Court to suppress the evidence found as the

result of an illegal search and seizure.

Dated: October 9, 1998

By: /s/ James D. Hills

James D. Hills (P14978)

Attorney for Defendant

425 S. Westnedge Avenue

Kalamazoo, Michigan 49007

(616) 344-3811

App. 18

STATE OF MICHIGAN

IN THE BERRIEN COUNTY

TRIAL COURT — CRIMINAL DIVISION

PEOPLE OF THE STATE OF MICHIGAN,

vs. Case Nos. 98-403728-FY

98-240328-ST

98-409184-ST

ROBERT LANELL GRIFFIN,

Defendant.

VIDEO PRELIMINARY EXAMINATION*

BEFORE THE HONORABLE JOHN N. FIELDS

Saint Joseph, Michigan - September 2, 1998

APPEARANCES:

For the People: MARK SANFORD (P35150)

Assistant Prosecuting Attorney

Berrien County Courthouse

St. Joseph, Michigan 49085

(616) 983-7111

For the Defendant: JAMES D. HILLS (P14978)

425 S. Westnedge

Kalamazoo, Michigan 49007

(616) 344-3811

* o +

[3] St. Joseph, Michigan

September 2, 1995 — at 4:15 p.m.

* Any typographical and/or incorrect punctuation found in the

following transcript pages were intentionally left to show accurately

how the original document appeared.

App. 19

THE COURT OFFICER: Court will resume, and

you may be seated.

This is Docket Numbers 98-403728-FY, 98-409184-ST,

and Docket 98-240328-ST. It’s the State of Michigan

versus Robert Lanel] Griffin.

Thank you.

THE COURT: Good afternoon. This matter is

before the Court today pursuant to a complaint which

alleges

it is. Possession with intent to deliver 225 grams or more,

but less than 650 grams of cocaine.

Sir, are you Robert Lanell Griffin?

THE DEFENDANT: Yes, your Honor.

THE COURT: Okay.

And Counsel, would you just identify yourself for the

record, please?

MR. HILLS: Thank you. Jim Hills appearing on

behalf of Mr. Griffin.

[4] Mark Senford is present as counsel for the People.

Mr. Sanford, are you ready to proceed?

MR. SANFORD: We are, Judge.

MR. SANFORD: Judge, I would call Trooper

Coleman.

App. 20

THE COURT CLERK: Do you solemnly swear or

affirm that the testimony you shall give in the matter now

pending before this Court shali be the truth, the whole

truth, and nothing but the truth, so help you God?

MR. COLEMAN: Ido.

THE COURT: Tell us your name, sir?

MR. COLEMAN: James Coleman.

THE COURT: Please proceed.

JAMES COLEMAN

called at 4:17 p.m. by the People, sworn by the Court

Clerk, testified:

DIRECT EXAMINATION

[5] BY MR. SANFORD:

Q. Where are you employed?

. 7 >

A. Michigan Department of State Police.

Q. And how long have you worked for the State

A. Alittle over five years.

Q. And in what capacity?

A. Asa state trooper.

Q. Were you employed in your capacity as a state

trooper on August, 21st of this year, 19987

A. Yes, 1 was.

App. 21

Q. And do you recall what shift you worked that

A. Ten-hour shift 6:00 a.m. to 4:00 p.m.

Were you wearing a uniform on that date?

Yes.

Q

A

Q. Ina patrol vehicle?

A. Yes.

Q. And did you have a partner?

A. No.

Q. Do you recall where you were on August 21st at

about 8:25 a.m. in the morning?

A. I was working Interstate 94 in Lincoln Township.

Q. That be Berrien County?

A. Correct.

(6] Q. And when you say working that area, what do

you mean?

A. I was more or less patrolling, working traffic, on

the freeway.

Q. And did something catch your eye at that time

and place?

A. I was sitting stationery in the median running

stationary radar on eastbound traffic and a vehicle came

into my zone, activated my radar, obtained a clock of 78 in

2 70 mile per hour zone, and pursued it for a traffic stop.

Q. Was traffic heavy that morning?

App. 22

Actually it was light.

And was it light out at this time?

Yes.

Q. And could you tell when you initially saw this

vehicle and clocked it, what type of vehicle it was?

A. Yes, I could.

Q. Okay. What kind was it?

A. It was an Aurora, an Oldsmobile product green in

> © >

Q. Remember what year?

A. I believe it was 95.

Q. After getting this clocking on your radar, what did

you do?

A. I pursued the vehicle to — to stop it for the speed-

ing infraction and as I was following the vehicle, I noticed

a second violation.

Q. What was that?

A. It was a registration plate violation, an improper

display.

[7} Q. And can you explain that a little further?

What was improper about it?

A. He had a — the dealerships will put trim pieces

around license plates to advertise and this particular

vehicle had a trim piece around the plate and it blocked

the state name, [llinois.

App. 23

Q. And the violation being what — state law requires

what?

A. That you can readily read any of the — the word-

ing on it and identify the plate, which state it’s out of.

Q. Did you have any problems in pulling that car

over?

A. No, I did not.

Q. And how many people were inside that car?

A. One individual.

Q. And while pulling that car over did you see any

type of movement or gestures, anything of the sort?

A. No, I did not.

7 > .

{8} Q. Do you see that person in court?

A. Yes, I do.

Q. And what happened then?

A. I made contact with the driver, asked him pre-

liminary type questions, advised him why I had stopped

him, More or less obtained his driver's license and vehicle

paperwork.

[9} Q. And did you run any of that information

through LIEN?

A. I did doing the follow-up, yes

Q. Okay. And were there any problems with that

paperwork?

App. 24

A. He turned out to be suspended in Michigan for

Q. Now would that suspension have been through

the State of Michigan or something that Michigan recog-

nized because of violations that occurred in Illinois.

A. No, it’s through the State of Michigan, although

he was holding an Dlinois driver’s license. That’s what he

provided to me.

Q. Did you run that plate and registration and/or

VIN number through the Secretary of State as well?

A. I did later, yes.

Q. Did you ask the defendant at any point during

this preliminary conversation with him about the car, who

it belonged to, or any — any of that sort?

A. Yes, I did.

Q. What did he say?

A. He advised that the vehicle belonged to his aunt

and he was [10] going to Kalamazoo to pick up his son.

Q. And did he tell you where he was coming from?

From the Chicago area.

Chicago?

Yes.

> oO P

Q. After finding out that the defendant’s license was

suspended, what did you do?

App. 25

A. I made contact with him a again, a second time

and I arrested him for that violation.

Q Is that a misdemeanor in Michigan?

A. Yes, it is.

Q. And -

THE COURT: I’m sorry. You arrested him for

what, sir?

(11) THE WITNESS: For driving under a sus-

pended record, license. ;

THE COURT: Okay.

BY MR. SANFORD (continuing):

Q. What was your intention at that point with

regards to the defendant? You placed him under arrest.

What did you intend to do?

A. I intended to arrest him and then I wanted to

search his vehicle.

Q. And by arresting him, did you actually handcuff

him, say the words, “You’re under arrest,” that type of

thing?

A. Yes, I did.

Q. And where did you place him —

THE COURT: Did you do both? I heard two

different things. Let’s clarify that.

THE WITNESS: I advised him that he was under

arrest for driving suspended and I did handcuff him.

+ * «

App. 26

A. I first advised him that he was under arrest and

that I was going to search his vehicle. | told him I wanted

to search [12] the whole vehicle and it — I — specifically |

wanted to look in his trunk and he told me I could not.

Q. Told you you could not?

A. Correct.

Q. Did you at some point search the interior of that

vehicle?

A. Right after he advised me of that, I did I

searched the interior of the vehicle?

Q. Anything in it?

A. Nothing illegal, no. No contraband.

Q. Any paperwork?

A. There was some paperwork belonging to the

registered owner of the vehicle, there were some other

items that got my attention.

Q. Like — such as? He had some — there was a large

amount of air fresheners in the — in the vehicle. A vanilla

scent as recall.

Q. Well, let's try to out a number on it. Can you tell

us approximately how many air fresheners there were?

A. Between five to ten air fresheners were tied down

near the, like that emergency brake pedal.

App. 27

{13] Q. What else, if anything, did you find in the

car? :

A. I located a cellular phone.

* . >

A. During the patdown when I had arrested him.

Q. Was that pager on or oi, if you know? It was on.

[14] Q@. Why did you want to get into the trunk of

this vehicle?

A. It ha —I felt that there were some — some indica-

tors to me from my experience that maybe there was

something going on here more than just a trip to Kalama-

zoo, from what he had conveyed to me earlier that he was

coming and picking up his son.

Q. Tell me why. What things were you looking at?

A. My initial contact with him when I was speaking

with him, he - when | was asking for vehicle paperwork,

he went to his center console to pick up something on the —

looking for paperwork and I saw a plastic bag. I had asked

him what was in the bag and he held it up and said it was

& bag of candy which it was and he advised me, “I don't

play that way” (15) which I took as he doesn't play that

way -

THE WITNESS: My opinion from — from that

was that he [16] wasn't involved with drugs by holding up

the plastic bag ‘cause that’s what | was inferring -

App. 28

Q. Okay. We've got that comment. What else?

A. Once I had taken his driver's license, went back to

my patrol car, and began to make my file checks and I

learned that he was suspended, the LEIN operator — the

radio operator — advised me that there was a case number

attached to the suspension and he advised me, “Do you

want me to run it?” And I said yes so he ran the case

number and it came back and there was a SID number

which is involved with people who have been arrested and

imprisoned. |

Q. State Identification Number?

A. That’s correct. So he ran that as well and he

advised me that the individual I was dealing with had —

was on parole for prior drug offenses.

Q. Now, armed with that information, did you ask

the defendant anything about that?

A. Later I did, yes.

Q. And what was his response, if any?

A. He told me I had the wrong person, that he had

never been arrested for drugs.

[17] Q. What —let’s stop. What kind of seizures have

you had from traffic going eastbound on 1-94?

A. In the last three to four hears, I have had

amounts of marijuana to 168 pounds, to 100 pounds, to 58

pounds, to 52 pounds, to 30 pounds, to 13 pounds, to ten

pounds and then sore smaller amounts.

App. 29

Q. And is there some significance to the fact that it

happened on 1-94 and/ov eastbound?

A. It's been my experience that contraband, meaning

drugs, goes eastbound, whereas the money will go west-

bound to pay for the shipments.

Q. You mentioned there were other factors. You

testified earlier about a cell phone, a pager. Were those

factors at all?

A. Yes.

Q. Based on what?

A. It’s been my experience that — that drug traffick-

ers will have communication devices so they can keep in

touch with [18] their suppliers or whoever they're making

their deliveries to and what have you.

Q. What about the air fresheners?

A. It's been my experience that air fresheners are

there to mask any odors, be it marijuana or meth or

something like that.

Q. And when you said your experience, have you run

across air fresheners before?

A. On several occasions with drug traffickers.

Q. And on those occasions, have you actually found

drugs in vehicles?

A. Oh, yes.

App. 30

A. Quite honestly, the fact that he wouldn't allow me

to look in his trunk when I asked. That - that drew some

suspicion from me.

Q. What did you decide to do?

A. ladvised him, and I had decided, that I was going

to call a canine just to build on my case — for my probable

cause.

Q. Did you, in fact, de that?

A. I did.

Q. That was through a radio device, I acsume?

A. Through a radio operator, I had him contact a

canine and [19] Trooper Norvell was contacted and he

came to the scene.

Q. Now the report says and you've testified that the

stop happened at about 8:25 a.m.?

Q. And do you recall approximately you would have

made this phone call or this communication to get a dog to

come there?

A. It would have been about ten minutes after, about

8:35.

> 7 >

A. Well, it depends. It could take ten to fifteen

minutes, but if you're conversing on the radio or with the

defendant or what have you, it could take longer.

Q. All right. Did, in fact, Trooper Norvell show up

with his dog?

App. 31

A. He did.

Q. And do you recall about what time that would

have been?

A. It would have been about 25 to 30 minutes after

the call.

{20} Q. After you initially called him?

A. Correct.

Q. So it would have been — and you called him about

ten minutes into the stop I believe you said?

A. Yes.

Q. Okay. Twenty-five to 30 minutes later?

A. Correct.

Q. When Trooper Norvell arrived, was he by himself,

by the way, other than his dog?

A. He arrived by himself. Prior to his arrival, my

sergeant had arrived to the scene?

Q. Okay. Who was that?

A. Sergeant Joe Zangaro.

(21) Q. And as a result of the trooper coming there

with his dog, did you actually at some point go into that

trunk?

A. Yes, I did.

Q. And that was based on your opinion that the dog

did what?

App. 32

A. The dog had indicated positively for — for drugs in

the vehicle.

Q. Now you indicated you had searched through the

interior of that vehicle prior to the dog getting there?

A. Yes, I had.

Q. Did you find any drugs during that initial search?

A. No, I did not.

Q. Were you relatively thorough or was that a quick

search?

* +. *

Q. After the dog hit on the car, what did you do?

[22] A. We opened the trunk, looked inside the trunk.

There were some items in there and there was a plastic

bag right in the left, like, quarter panel. It was sitting in

plain — in view. It wasn’t buried or hidden or anything.

There was a plastic bag.

o « +

A. It was a plastic bag like a — like a plastic grocery

sack in place of the paper bags that they provide now. And

it was tied in knots and inside of there was another and

then ultimately inside of there were plasiic zip-lock

storage bags, one inside the other, with a white powder

substance inside.

How did you get into that trunk?

With a ket — actually with the remote, excuse me.

Remote?

There was a remote on the keyring.

> &P &

App. 33

Q. And once we finally went through one or two

bags, you indicated you saw a bag with white powder?

(23) A. Correct.

. . .

Q. At some point, did you get a rough estimate of a

weight of that?

A. Yes, we did.

Q. What was the rough estimate?

A. Five hundred grams.

[25] Q. During the course of your work as an officer,

I assume you run across situations where a vehicle is to be

impounded?

A. Yes.

Q. And had you not found this cocaine, what would

you have done with this vehicle, if — if the only information

you had at that point was the defendant was arrested for

driving on license suspended. What would you have done?

[26] 2. I'm sorry, let me back up and ask my ques-

tion aga.n. Does your department have procedures dictat-

ing when and under what circumstances a vehicle may be

impounded?

A. Yes.

App. 34

Q. In fact, I believe you brought us a copy of those

rules today, or at least a partial copy?

A. I did.

> iad 7

THE WITNESS: It is ~ it’s Official Order Num-

ber 49 which covers vehicles when they're being im-

pounded or when they’re being towed or what have you.

Q. And what does that policy tell you in concerns or

in regards to vehicles that are stopped on a road when the

driver is not allowed to drive it for reasons of suspension

or what have you?

A. Well, it — particularly it specifies non-limited

freeways (27) on highways.

. . al

A. And in circumstances like that, when you arrest

an individual and there's not a valid driver with that

individual who can take control of the vehicle, then we

have to tow the vehicle. We have to impound it because of

the arrest.

Q. And after you impound a vehicle, do you have

standard procedures for invertorying that vehicle?

A. Yes, we have to inventory the vehicle, its contents,

its containers, everything.

Q. Does that include trunks as well?

A. Yes, it does.

App. 35

(28) A. It — it was impounded initially as evidence.

We took it back to our post and we held it there.

Q. Atow truck or something or was it driven?

A. It was driven.

. . *

(29) BY MR. HILLS:

Q. Good afternoon, officer.

A. Good afternoon.

Q. I take it —I take it officer that you consider 1-94 a

drug corridor. Is that correct?

A. Yes, I do.

Q. And that is the — basically the only major road

between Chicago and straight to Detroit, correct? Straight

shot.

A. Oh, yes

Q. Now you stopped the car for speeding. Is that

correct, sir?

A. Yes.

Q. You indicated also, I believe, in your testimony

that my client’s driver's license in Michigan was sus-

pended. Was the suspension up at that time?

A. Was it up as -

Q. Was it time — was the time for the original sus-

pension or any suspension up at the time that you stopped

him?

App. 36

A. The information provided me through our radio

operator was that he was suspended until his reinstate-

ment fee was paid.

Q. Okay. So and being an officer of five years, there's

a suspension for a certain period of time and then you

must pay 4 reinstatement fee. Is that correct?

A. Correct.

Q. And apparently then the suspension was over

except the reinstatement fee was not paid? That would be -

A. Correct.

{31} @. Now I take it also that it’s not illegal for a

~ black man to be driving someone else's car on 1-94 to go

from Chicago area to Kalamazoo. Is that correct?

A. No, it’s not illegal.

Q. All right. And it’s not a criminal violation to be

driving down I-94 speeding, is it?

A. No, it’s not a crimina) violation, no.

Q. And it’s not a« criminal viclation to have a pager,

is that right?

(32) A. No, sir.

Q. Do you have a pager?

A. Actually, no.

Q. Anybody in your department have a pager?

A. Several people do.

App. 37

Q. Do you have a cellular phone in your car?

A. Yes, I do.

Q On 1-94, are there specific signs that say who to

call with your ~— for your page — I mean, for your cellular

phone if you need help?

Q. And I take it then, when he had a valid Mlinvis

heense, is that correct?

A. Yes, he did.

Q And I assume you checked and that’s where he

does live. Isn't that correct?

A. Yes.

Q. And I assume you checked where he works and he

did work there. Is that right?

A. He advised me that he worked at a TicketMaster

outlet in the Chicago area.

[33) @. Did you contact and find out he does have a

son in Kalamazoo that he was going to visit?

A. I was never able to verify that, no.

A. I wouldn't say he was totally cooperative, but he

did answer every question | asked him.

Q. Did you ask him for his driver's license?

A. Yes, I did.

Q. Did he give it to you?

App 38

A. Yes, he did.

Q. Did you ask him for his registration?

A. lasked him for vehicle paperwork.

Q. Did he give it to you?

A. No, he did not.

Q. Where — did he find it?

. . .

(34) Q All right. Were there any stolen goods in the

car when you searched inside the his car? Not the trunk,

but inside the car? Let's take -

A. 1-1 searched the vehicle, did not find any stolen

property.

Q. And there was no possibility that he would

destroy any evidence because he was under arrest in your

police car, isn't that correct?

A. That's correct.

Q. And there was chance of his flight either, was

there?

A. No.

Q. Now I ~I try to write down you had some — you

felt, those were the words, you felt that it was something

wrong, is that right? Is that what you — you said?

A. Ihad a suspicion.

Q. You used the word felt? I felt this. Did you say

that?

App. 39

A. I might have said felt, yes.

Q. All right. And that was because he was on I-94, he

had a pager, he had a cellular phone. Is that correct?

A. That's part of it, yes.

(35] Q. And now we get to the air fresheners. Have

you ever stopped any cars without drugs that have air

fresheners in them?

A. Sure.

* * 7

Q. And you didn't smell any odors in this car, did

you?

A. Other than the air fresheners, no.

Q. Didn't smell any marijuana?

A. No, I did not.

Q. Even when you looked in it, isn't that right?

A. Correct.

Q. And in fact, when you placed him under arrest for

driving while his license suspended, at that time you were

going to search the vehicle no matter what. Isn't that

right?

A. Search incident to an arrest, | was gonna search

it, yes.

Q. And that was even before you knew he had a

pager or he had a cellular phone, wasn't it, because you

hadn't even gotten in the car yet at that time?

A. No. I knew he had a pager.

App. 40

Q. You didn't know he had a cellular phone, did you?

A. Not at thet time, no.

(36) Q. And the air fresheners, was he supposed to

hang them from the rear view mirror?

A. That would be a violation.

Q. So that — that shouldn't happen, right?

A. No.

Q. So you hang them from someone's — below the

windshieid. Is that right?

A. That would be a place you could put them, yes.

Q. So it would be out of the way of your driving your

vehicle?

A. Yes.

Q. Now you said to us that you arrested him and you

wanted to search the whole vehicle. Is that right?

A. Yes.

Q. And that was before you searched the inside, isn't

that true?

A. Correct.

Q. And that was before you decided to call the dogs,

is that right?

A. Well, it was about the same time actually.

Q. And this was because it was 8:30 in the morning,

that was one of the reasons, is that right?

App. 41

A. Yes.

[37] Q. And this improper display trim plate, you say

dealers do that?

7 . .

Q. Did you ever ask him those his drugs?

A. I brought up the drugs were in the vehicle, but I

never asked him specifically.

Q. Did you ever ask him were those his drugs?

A. No, I did not.

[40] Q. Did you do anything else in the car — did you

find anything else in the car that you might have asked

somebody about?

[41] A. No.

Q. Now you indicated you called the dog at about

8:35. Was that after my client was arrested?

A. Yes.

Q@. When you say he was arrested, was he arrested

before he was placed in your vehicle?

A. He was arrested outside of his vehicle for driving

suspended.

Q. Okay. And then he was handcuffed and placed in

the back of your car?

A. Correct.

App. 42

Q. Okay. So it’s — he’s locked in the back. Is that

right?

A. He's locked in the back, yes.

Q. All right. And I believe and I wan* to be clear that

he was the only person in the car and he made no gestures

to try and hide anything. Is that right?

A. Correct.

142) Q. You indicated he said, “I don’t give you

consent to look into the trunk.”

A. Yes.

Q. And you specifically asked him, “May I search the

trunk?”

A. Yes.

Q. And he said no to that again, right?

A. Yes.

[43] Q. Did the whole conversation between you and

my client, was that recorded on audio?

A. I’m certain mostly all of it is, yes.

Did you ever listen to it, sir?

Q

A. Yes,

Q. And do you still have a copy of that?

A. Yes.

App. 43

Q. Is that in evidence?

A. Yes. ~-

[44] Q. Now your sergeant arrived about five to ten

minutes before the canine unit arrived?

A. Approximately, yes.

Q. And how long approximately did the canine go

around the car or whatever the canine —

A. From what | could tell — I was watching primarily

traffic — five to ten minutes.

* > *

[46] REDIRECT EXAMINATION

BY MR. SANFORD:

Q. This car belonged to a third party. At some point

during your conversation with the defendant, did you ask

who drove that car or who had access to the car?

A. He advised me that he and his aunt had access to

it.

+ 7 7

[47] (At 5:01 p.m., People’s Exhibit 1 marked)

* > >

That's People’s Proposed Exhibit 1. I've got defense

attorney a copy of this just before the exam today. I would

ask if he would object for purposes of this hearing only to

the admission of this report and any chain of evidence

App. 44

problem that — or eny chain of evidence, not problems,

involved in the matter before you.

MR. HILLS: I have none, your Honor.

THE COURT: All right.

Any objections then in -

MR. HILLS: Oh, no, your Honor.

THE COURT: It is admitted.

(At 5:01 p.m., People’s Exhibit 1 admitted)

THE COURT: Attorney Sanford.

MR. SANFORD: Judge, I have no further

witnesses.

[48] MR. HILLS: And defense has no witness,

your Honor.

THE COURT: Thank you.

You have a motion, sir?

MR. SANFORD: I do, Judge.

By way of bind over, I will be brief. I believe that we

have at least two justifications for this officer to get into

the trunk of that vehicle over the defendant’s consent. The

first is the officer’s belief under People versus Terry that

there was something going on here. And we've listed those

factors — defendant's comments, the defendant saying that

he had no record, was — had not been arrested for drugs

when — when the trooper just got through talking to the

radio operator that in fact he did have a drug conviction,

was in fact on parole. Again, the — the factors about the

corridor going along eastbound on 94, presence of pagers

App. 45

and phones, those air fresheners, the very fact the defen-

dant did not consent to the opening of the trunk. All of

those things forming in the officer’s mind a reason to

detain the defendant longer than just writing him a ticket

for that Driving While License Suspended.

At that point, the dog was called and came within 25

to 30 minutes. The dog alerting on that gave the officer

probable cause te believe that there were drugs in that

vehicle.

[49] I have a case in support of that, People versus

Clark. It’s found at 220 Mich App and let me get the Court

the page number of that - page 240, which indicates

essentially that a dog’s alert is reliable.

THE COURT: Let me just ask and - and I know

that Trooper Norvell, I think, just left.

MR. SANFORD: He did just leave, Judge.

THE COURT: In general there is some founda-

tional factors for dog handlers and — and evidence that

comes from dogs.

MR. SANFORD: Judge, that is correct and I

spoke — that was why I requested that opportunity to talk

with the defense attorney. I asked him if for today’s pur-

poses, the testimony of this trooper saying that, in fact,

the dog did alert was sufficient for him. He indicated — and

correct me if I'm wrong — that for today’s purposes, that

would be fine.

* « .

MR. SANFORD: So — so let me back up, Judge,

and put this in some kind of perspective.

App. 46

The initial stop of the vehicle for speeding was (50)

proper. The officer’s arrest of the defendant for Driving

While License Suspended was proper. The officer detained

the defendant for approximately 25 to 30 minutes while

waiting for that dog to come. | believe under People versus

Burrell which is found at 417 Michigan that that slight

detention was proper given the articulable suspicions that

the officer told us here on the stand today.

Once the dog came, the dog hit on that vehicle,

thereby giving the officer probable cause to search the

entire vehicle, including the trunk. And again, People

versus Clark at 220 Michigan Appellate Reports page

240 —

* ‘ *

MR. SANFORD: Okay. And I can just quote from

page 243.

“An alert is at least as reliable as many other [51)

sources of probable cause and is certainly reliable enough

to create a fair probability that there is contraband.”

In fact, the facts of Clark are very analogous to the —

to the facts we have today, Judge.

THE COURT: Thank you.

MR. SANFORD: Based on all of those facts as

they developed, the officer had the right to open up that

trunk and find the cocaine.

Even if the Court refuses to buy any of those argu-

ments, we have the second justification with the inventory.

The officer testified that the defendant did not have his

license and pursuant to department policy, he would have

had that car impounded — fact, in fact, did have that car

App. 47

impounded and that would have that vehicle inventory

pursuant to that departmental policy. And again, under

People versus Touhy, and I have a cite for that, too — 438

Michigan page 265, that is all that is required for a vehicle

to be impounded and inventoried.

in essence, Judge, the drugs would have been found

even if there were no other justification because the car

trunk. The drugs would have been found in that.

I believe that gets us through all the legal hoops that

we're required to make this stop a valid stop. The [52)

defendant was only person in the vehicle. Told the officer

that only he and his aunt drove it and that he had had

control of that vehicle for the last couple days. Also, there

was a pair of shoes, men’s shoes, and a jacket that the

officer testified looked like it probably would have fit the

defendant. Concerning - so I believe that establishes

possession.

And concerning intent to deliver, the quantity alone —

500 grams — I think actually under the lab report, 506

grams. On — on the quantity alone, Judge, that would

support an inference of an intent to deliver.

So, given that long-winded motion, I would ask the

case be bound over as charged.

THE COURT: Thank you.

MR. HILLS: Thank you. Ill be very brief, your

Honor.

App. 48

I'm simply going to object to the bind-over at this

time. I can argue some of these other things because if the

Court binds over, then I want to listen to the tape and a

few other things, but I don't think they've shown enough

your Honor and without any argument, the Court’s heard

many of these before. I'll leave it up to the Court.

[53] THE COURT: I am ready to proceed in this

matter.

First of all, let me just clarify. I think when I called

this case, I indicated that the charge was Possession With

Intent to Deliver 225 Grams or More But Less Than 650

Grams of Cocaine.

This Court has heard the testimony of Trooper James

Coleman of the Michigan State Police and I've also re-

First of all, let me just indicate that the item that was

located in the trunk, the plastic bag, contained powder

that was found to contain cocaine hydrochloride.

* > *

[54] THE COURT: Okay.

There was a stop in Berrien County, Michigan in

Lincoln [55] Township on August 21 of 1998 by Trooper

Coleman, a traffic stop. He indicates that he was conduct-

ing a stationary radar, that he observed the vehicle travel-

ing 78 in a 70. He subsequently stopped that vehicle, an

Oldsmobile Aurora, and identified the driver as being the

defendant in this particular matter.

App. 49

The trooper indicates that following radio contact he

was advised that the defendant was suspended — his

driving privileges in Michigan were suspended. And also

the trooper indicated that he believed there was a viola-

tion of the motor vehicle code with respect to the registra-

tion, plate, and alleged improper display.

Trooper further indicates that he then made a custo-

dial arrest of the defendant.

There was a lot of testimony, and I’m not going to go

through each and every item that I ~ I've written down,

but a lot of testimuny with respect to what took place after

that. There was a search in effect incident to arrest of the

area within the interior portion of this Oldsmobile. Noth-

ing out of the ordinary was located. The officer did indicate

a variety of other items. Mr. Sanford has identified those,

and in effect is alleging that there was reasonable suspi-

cion that criminal activity was afoot including a cellular

phone, a beeper or 4 pager, several air fresheners found

near the emergency brake. The past [56] experiences of the

office with regard to motor vehicles at that time of the

morning, an alleged corridor — drug trafficking corridor of

I-94. A variety of items that the officer articulated to

indicate in his opinion that there was a reasonable suspi-

cion that criminal activity may be afoot.

The officer then made contact and sought assistance

from Trooper Norvell with a drug — a dog to have a search

for alleged drugs.

While I've not heard the foundatior., there’s been a

stipulation as to the testimony of Trooper Coleman with

regard to his observations and he testifies that after

Trooper Norvell arrived with a dog that the dog went

around the vehicle for about, I believe he’s testified, five to

App. 50

ten minutes, and that the dog showed an alert for some

type of alleged illegal drugs. And as a result, the trunk of

the vehicle was opened. And subsequently found within

the vehicle were the — was the bag that in turn had other

bags and subsequently, according to the lab report, co-

caine.

I’ve got a search — a couple of search and seizure —

we've got a search and seizure issue and two basic argu-

ments that are being submitted today as it relates to the

alleged legality of those searches, the first being that there

was again reasonable a — suspicion that criminal activity

was afoot, that was sufficient to allow the detention of the

— [57) of the driver in addition to the custodial arrest and

for the officer, Trooper Norvell, to arrive. And that with an

alleged trained dog and an alleged trained officer handling

that dog, that the dog then gave an indication or an alert

that — that illega) drugs were found in that vehicle.

I’m citing from People versus Clark that the prosecu-

tor has submitted on page 243 again, 220 Mich 240 at page

243, and I'm citing only in part and quote:

“In Ludwig supra the Court examined this

issue, The Court began by noting that probable

cause means that a fair probability exists that

contraband or evidence of the crime wili be found

in a particular place, the Court then consider the

reliability of the canine alert and concluded that

such an alert is at least as reliable as many other

sources of probable cause and is certainly reli-

able enough to create a fair probability that there

is contraband.”

Based upon all of the factors, I find that there was

sufficient probable cause and noting that a motor vehicle

was involved as well and that obviously a motor vehicle's

App. 51

very mobile that there was a legal basis for the search to

take place without a warrant being issued and | will allow

that evidence in.

Additionally, there is an inventory search exception to

the general rule that there must be a search warrant

issued. (58) There is a requirement that if there is going

an inventory search, it must be conducted pursuant to a

standard departmental! procedure.

There's both United State Supreme Court law and

Michigan Supreme Court law with regard to that. South

Dakota versus Opperman found at 96 Supreme Court

Reports 309.2 and People v. Long found at 419 Mich 636.

People’s Exhibit 2 reflects the procedures for the

Michigan State Police to conduct an inventory search and

one of the time frames in which an inventory search

according to that policy of the State Police may be con-

ducted is where a vehicle is — first of all, where there is

on y a pa — a driver of the vehicle. No one else is able to

remove it. A licensed driver is not immediately to remove

the vehicle. Accordingly, if a vehicle is to be left unat-

tended following a custodial arrest, the vehicle shall be

inventoried.

While there's not an indication from the officer that

immediately he was considering an inventory search, it

still appears to this Court that there was a right to con-

duct an inventory search and subsequently an inventory

search would have been conduct — conducted pursuant to

department policy. That also would be a justification for

the admission of this particular evidence as well.

App. 52

So on those two grounds, I do allow the admission of

the alleged cocaine in this matter.

[59] In aridition to those items, there must be a

showing that the defendant did possess this particular

cocaine and alco with the intent to deliver.

As it relates to the intent to deliver, I find that several

factors, not the least of which would be the amount of the

cocuine would in this Court’s opinion, provide probable

cause that this was more than just for personal use. In

fact, it wasn't for use. That was intended to be delivered to

other people, 506.4 grams being involved.

Additionally, the officer’s testified that there was, as

I've stated earlier, a pager and cellular phone. In and of

themselves they’re certainly legal items as pointed out by

Attorney Hills, but it’s kind of like baking a cake. There's

certain things or elements in ~ in a cake that by them-

selves don’t make a cake, but when you put all the — all

the pieces together it may result in something else.

And the large amount of cocaine along with a pager

along with a cellular telephone and some of the other

factors that have been cited give this Court the opinion

that it was with the intent to deliver.

As it relates to possession, that becomes a little bit of

a closer issue in this particular matter. This is not the

vehicle of — belonging to, or at least titled to, the defen-

dant, Mr. Griffin. There is testimony that it was titled to a

woman. Mr. Griffin, allegedly indicated that [60] that was

his — his aunt and that he had the vehicle for a couple of

days. As the trunk was opened there were shoes that in

the opinion of the officer were men’s shoes along with a

coat, although he didn’t — the officer didn’t indicate that

App. 53

the — exactly what the size of that coat was, but in general

it might fit someone the size of the defendant.

I find that there is sufficient probable cause and I note

it’s a lesser standard than beyond a reasonable doubt.

There is sufficient probable cause to find that the defen-

dant in this matter, Robert Lanell Griffin, did in fact

possess the cocaine and based upon the threshold stan-

dard of a Preliminary Examination, this Court then does

find that there’s probable cause to believe that this crime

was committed and probable cause to believe that the

defendant committed that offense.

Accordingly, I bind the defendant, Robert Lanell

Griffin, over for further proceedings. Bond is continued as

previously set and it has been posted.

I will now call that case at the Circuit Court level.

This is not File Number 1998-403728-FH, the People

versus Robert Lanell Griffin.

Sir, are you that person?

THE DEFENDANT: Yes, I am.

MR. HILLS: Stand up.

App. 54

STATE OF MICHIGAN

IN THE COURT OF APPEALS

People of the ) Ct. App. File No. 216720

State of Michigan )

al Tr. Ct. File No

Plaintiff-Appellee ) 98-403728FH

vs. ,

Robert Lanell Griffin )

Defendant-Appellant )

- Angela Pasula James D. Hills (P14978)

Prosecuting Attorney Attorney for Defendant-Appellant

Courthouse 425 S. Westnedge

811 Port Street Kalamazoo, Michigan 49007

St. Joseph, M1 49085 (616) 344-3811

APPELLANT’S BRIEF ON APPEAL

ORAL ARGUMENT REQUESTED

By: James D. Hills (P14978)

Michael D. Hills (P58571)

Attorneys for Defendant-Appellant

425 S. Westnedge

Kalamazoo, Michigan 49007

(616) 344-3811

TABLE OF CONTENTS ~

Index of Authorities Cited ......................cccccceseeeees 3

Statement of Question Presented........................ 4

Statement of Appellate Jurisdiction................... 5

ee indecticsncenctscnccuctpictnicepsentniabiigs 6

App. 55

I. THERE ARE REASONABLE GROUNDS

TO BELIEVE THE OUTCOME OF THE

TRIAL WAS AFFECTED WHEN THE

COURT IMPROPERLY ADMITTED TES-

TIMONY THROUGH THE CHIEF

PROSECUTION WITNESS, TROOPER

COLEMAN, REGARDING A DRUG COU-

RIER PROFILE AS THAT DRUG PRO-

FILE ALLEGEDLY APPLIED TO MR.

GRIFFIN, THEREFORE MR. GRIFFIN’S

CONVICTION MUST BE REVERSED. .........

App. 56

QUESTION PRESENTED

WHETHER THERE ARE REASONABLE GROUNDS TO

BELIEVE THE OUTCOME OF THE TRIAL WAS AF-

FECTED WHEN THE COURT IMPROPERLY ADMITTED

TESTIMONY THROUGH THE CHIEF PROSECUTION

WITNESS, TROOPER COLEMAN, REGARDING A DRUG

COURIER PROFILE AS THAT DRUG PROFILE ALLEG-

EDLY APPLIED TO MR. GRIFFIN, THEREFORE MR.

GRIFFIN’S CONVICTION MUST BE REVERSED?

Defendant-Appellant answers, “Yes.”

STATEMENT OF JURISDICTION

Defendant was convicted of felony, to wit: possession

with intent to deliver over 225 grams, but less than 650

grams, of cocaine pursuant to MCL 333. 7401(2\a)iiy

333.7413(2) by a jury on November 6th, 1998. The trial

was held in the 2nd Judicial Circuit, Berrian County,

Michigan in front of Judge Thomas E. Nelson. Mr. Griffin

was sentenced on December 1, 1998 to 20 to 60 years in

prison. This was a final judgment of the Circuit court and

Defendant now appeals as of right. This Court of Appeals

has jurisdiction pursuant to MCR 7.203.

STATEMENT OF FACTS

INCIDENT: August 21, 1998

On August 21, 1998 at approximately 8:20 a.m.

Defendant-Appellant, Mr. Griffin (hereinafter referred to

as Mr. Griffin), was driving a 1995 Oldsmobile Aurora

eastbound along a stretch of I-94 located in Berrien

County, Michigan. At said time and place Mr. Griffin was

pulled over by Michigan state Trooper James Coleman for

App. 57

driving 78 mph in a 70 mph zone. (Trial transcript, here-

inafter, T., page/line 97/4). Trooper Coleman was working

traffic enforcement alone and in uniform. Mr. Griffin

dutifully pulled over and produced a valid Illinois drivers

license. (T. 142/8) The automobile Mr. Griffin was driving

had valid Illinois plates, but did not belong to Mr. Griffin,

it belonged to Mr. Griffin’s aunt, Patricia Taylor. (T. 141/24

& 142/1). Mr. Griffin explained to Trooper Coleman that he

lived in Chicago and borrowed the car to pick up his son in

Kalamazoo. (T. 99/7).

Trooper Coleman took Mr. Griffin’s drivers license

back to the squad car and ran a lien, Trooper Coleman

discovered that Mr. Griffin’s Michigan drivers license had

been suspended due to an unsatisfactory driving record.

(T. 99/19) The information that Trooper Coleman had was

that Mr. Griffin was suspended until his reinstatement fee

was paid. (T. 142/15). In other words, all that Mr. Griffin

had to do was pay a reinstatement fee and the suspension

would be lifted. (T. 142/25 & 143/1). In spite of this fact,

and the fact that Mr. Griffin had a valid Illinois drivers

license, Trooper Coleman decided to arrest Mr. Griffin on

the misdemeanor charge of driving on a suspended drivers

license. (T. 101/10). Mr. Griffin was extracted from the

vehicle, handcuffed and patted down. During the pat down

trooper Coleman found a pager on Mr. Griffin’s person. He

also found an address book in Mr. Griffin’s back pocket. (T.

124/12). Trooper Coleman also found a Ticket Quest

Company business card, which at trial he stated was in

the address book. (T. 125/13). Trooper Coleman's trial

testimony, however, is not consistent with the police report

which he wrote only hours after the arrest. Trooper Cole-

man’s police report indicates the business card was found

in the center console of the vehicle, not in the address

App. 58

book. (T. 146/1). The business card had names and num-

bers on the back (T. 125/6). After patting down Mr. Griffin,

Trooper Coleman locked Mr. Griffin in the back of the

patrol car and called for the K-9 unit. (T. 130/10).

Before the K-93 unit arrived, Trooper Coleman

searched the automobile and discovered a cell phone in the

drivers side door pocket (T. 128/9) and 5 to 10 air fresh-

- eners next to the emergency brake. (T. 104/18). Also found

in the automobile was $301.00 dollars in cash in the center

console (T. 139/25 & 140/1). Trooper Coleman went back to

the police car and interrogated Mr. Griffin. During that

interrogation Trooper Coleman elicited from Mr. Griffin

that he was currently working at Ticketmasters in Chi-

cago. (T. 147/13). At this time Trooper Coleman told Mr.

Griffin that he “had an option. And one of the options was,

I could write him a ticket, take some bond money and let

him go, or I could take him to jail.” (T. 138/10).

The K-9 handler, John Norvell, arrived with his dog

approximately one half hour after Trooper Coleman made

the initial stop. (T. 130/17). The dog “hit” on the trunk. (T.

131/8). The trunk was opened via a keyless entry remote

on the key chain. (T. 131/16), inside the trunk the officers

found a plastic grocery bag, inside that another plastic bag

and inside that, a zip lock plastic bag, (T. 131/17) which

contained just over 500 grams of cocaine. (T. 133/23). The

troopers packaged the baggies found in the trunk and

labeled the packages “protected for prints”. (T. 132/17).

The trunk, however, was not protected for prints, nor was

a lift attempted. (T. 139/5 & 150/24 & 151/1). Also found in

the trunk was a collection of rags, an Atlanta Braves

jacket and a pair of work boots, which Trooper Coleman

characterized as tennis shoes for the jury (T. 134/17). Mr.

Griffin was asked directly about the cocaine in the trunk,

App. 59

Mr. Griffin replied that he did not know anything about it

(T. 135/19).

While Mr. Griffin was in custody at the Michigan

State Police Post his pager went off 5-10 times. (T. 122/5).

None of the numbers were checked, (T. 123/15). Trooper

Coleman did not try to contact the mother of Mr. Griffin’s

son, Misha, even after he found her number in Mr. Grif-

fin’s address book (T. 124/17). Aiso while Mr. Griffin was in

custody at the Michigan State Police post, Trooper Cole-

man made contact with Mr. Evans, Mr. Griffin’s cousin

and primary driver of the vehicle. (T. 144/6 & 190/18).

PRELIMINARY HEARING: September 2, 1998

In Berrien County this case was assigned to the Drug

Court. Circuit Court Judge Fields was assigned to handle

the preliminary hearing and Circuit Court arraignment.

Mr. Griffin was arrested on August 21, 1998. The

preliminary hearing was held September 2, 1998 in the

Berrien County Drug Court before Circuit Judge John

Fields. Mr. Griffin was bound over for trial. Immediately

after the preliminary hearing Circuit Judge Fields held

the Drug Court arraignment and set the case for trial in

the Drug Court, before Family Court Judge Thomas E.

Nelson, for October lst and 2nd with a status conference

on September 29, 1998. The trial was adjourned once at

the request of Defense Counsel until November 5, 1998.

The original trial date had been scheduled so soon after

the preliminary hearing/arraignment that the transcripts

could not be prepared before the original trial da‘.

App. 60

TRIAL: November 5, 1998

_ Trooper Coleman testified to most of the facts con-

tained in the above section. In addition to those facts

Lajuana Edmonds was called by the Defense and indicated

she and Mr. Griffin have a son in common, Sija, and she

was staying at her cousin, Kashawn’s, house at the time of

the incident. Moreover, Ms. Edmonds indicated that Mr.

Griffin was to pick up their son at approximately 10:00

a.m. on August 21, 1998, and when he did not show, she

called his pager several times. (T. 182/10). Further, Ms.

Edmonds had two phone numbers 373-2810 and 553-4522,

(T. 182/4).

Further, Mr. Glen Evans testified at trial and indi-

cated he resides at 3640 Wallace, Riverdale, Illinois.

(185/24). Moreover, Mr. Evans testified that he is cousin to

Mr. Griffin and has known him all his life. (T. 186/2). Mr.

Evans testified that his mother is Patricia Taylor, aunt to

Mr. Griffin. Mr. Evans also testified that the automobile

involved in this case belongs to him, and is registered in

his mothers name. (T. 186/25 & 187/3). Mr. Evans verified

that the area code in Chicago is 312. However, the area

code for the Ticket Quest Company (business card), 219, is

an Indiana number. (T. 188/4). Moreover, Mr. Evans

verified that Mr. Griffin lives at Forty Fifth and Lake Park

in Chicago, and that Mr. Griffin works at Ticketmaster,

not the Ticket Quest Company. (T. 189/3). Also that Mr.

Griffin does not own a car and rides the bus or train to

work. (T. 190/6) Finally, Mr. Griffin asked to borrow the

car so that he may pick up his young son in Kalamazoo,

Michigan. (T. 190/22). Mr. Griffin picked the car up on

August 20th, 1998, and he was arrested the very next

morning, while Mr. Evans’ vehicle. (T. 191/3).

App. 61

Trooper Coleman called Mr. Evans to notify_him of the

impounded condition of the car. (T. 193/20), Mr. Evans

indicates the Atlanta Braves jacket is his along with the

work boots. (T.-193/30). Mr. Evans also indicated that the

business card marked as exhibit 1 was his, moreover, Mr.

Evens testified that the handwriting on the back of the

card was his, finally, Mr. Evens stated that he placed the

card in the center console, where Trooper Coleman placed

the business card in his report. (T. 194/1).

Exhibits:

People’s Exhibi

1. Ticket Quest business card (T. 125/10)

2. Address book (T. 127/7)

3. Cell phone & pager (T. 128/9)

4. cocaine & bags, 500 grams (T. 132/13)

5. Lab report (T. 168/17)

Def Exhibit

B. Work Boots found in the trunk (T. 194/25 &

195/1)

C. Atlanta Braves jacket found in trunk (T.

195/21)

had a connection to drugs. The Prosecution tried to link

the address book to }‘r. Griffin having kr’ sledge of drugs,

through Trooper Coleman’s testimony. He stated he found

the Ticket Quest business card (mentioned earlier) in the

address book. (T. 125/13). However, this was not only

contrary to Trooper Coleman’s own police report which was

written immediately after Mr. Griffin's arrest, but also

App. 62

contrary to where Mr. Evans (a sequestered witness) said

he placed this card. (T. 145/21-25 & 146/1-7). Mr. Evans

testified that he left the card in the center console of the

vehicle, (T. 194/10-16) this verifies Trooper Coleman’s

written report as to the location of the business card in the

vehicle. The address book itself did not show any link

whatsoever to any knowledge of drugs.

We can now see that there was no physical or direct

evidence either in the vehicle, or on Mr. Griffin, connecting

Mr. Griffin to any knowledge of the drugs found in the

vehicle. The only physical and direct evidence connecting

Mr. Griffin and the vehicle, was the undisputed fact that

he was driving his Aunt’s vehicle from Chicago, Illinois, to

Kalamazoo, Michigan. This was to pick up his young son

and return for a family gathering. This fact was testified

to by not only Mr. Griffin, but also Mr. Evans and Ms.

Lavanna Edmonds. (T. 181/24 & 182/1-3).

The only logical conclusion from this evidence was

that Mr. Griffin had no idea that the vehicle contained

drugs.

The jury would have no basis for a finding of guilt

except for the fact that (1) Mr. Griffin was driving the

vehicle, (2) the drugs were found in the trunk of the

vehicle, and (3) that Mr. Griffin was arrested and on trial

for this offense. The jury would have been required to find

Mr. Griffin “not guilty” on such facts. Even if the jury

found Mr. Griffin “guilty” based on these factors, I am

positive any judge in this state would not have permitted

such an injustice to prevail.

Therefore, how does the prosecutor take these facts

and make it possible for a trier of the fact to return a

verdict of “guilty as charged”? This is why I say that

App. 63

section 4 “rough F is intertwined with section G. The

only poss » ty of proving guilt on Mr. Griffin’s part would

be to link these facts via a drug profile. The drug profile in

this case would use the specific facts to fit a typical drug

dealer or courier. Now we are getting into the use of drug

profile for the sole purpose of making such facts substan--

tive proof of Mr. Griffin’s guilt.

This of course is prohibited as stated in sections A

through F as previously discussed. It also provides this

Court with clear and convincing evidence that the prohib-

ited use of drug profile evidence in this case is not merely

harmless error.

H._ Conclusion

Mr. Griffin has always maintained his innocence and

denied any knowledge of the cocaine found in the vehicle’s

trunk. (T. 135/19-20). There can be no doubt in anyone’s

mind, after a complete review of this case, that it was

entirely based on circumstantial evidence. Further, that

the circumstances themselves would have led to only one

conclusion, to wit, not guilty. However, with the trial court

permitting the use of drug courier profile evidence, over

Defense Counsel’s objections, the court made it not only

possible, but probable, that the jury would convict Mr.

Griffin. Then to compound the error, the court failed to

give the necessary cautionary instructions to stem the

jury's improper use of the drug courier profile testimony.

This was not harmless error, and as a result there was a

reasonable probability that the error affected the outcome

of the trial. Therefore, the reversal of Mr. Griffin’s convic-

tion is required.

App. 64

When a prosecutor brings a case based on minimal

circumstantial evidence, and there is a complete lack of

physical] or direct evidence showing guilt, then the prose-

cutor must not be permitted to use drug courier profile

testimony, as substantive evidence. In this case the Prose-

cutor used drug courier profile testimony, as substantive

proof of knowledge, to raise the level of his weak circum-

stantial case, in order to gain a conviction. This type of

injustice must not prevail.

RELIEF REQUESTED

It is respectfully requested that this Honorable Court

reverse the decision ir the trial court, or in the alternative,

reverse and remand the case for a new trial, or further

proceedings which this Court deems appropriate.

Dated: February 27, 1999

/s/ James D. Hills

By: James D. Hills (P14978)

Michael D. Hills (P58571)

Attorneys for Defendant-Appellant

425 S. Westnedge

Kalamazoo, Michigan 49007

(616) 344-3811

App. 65

STATE OF MICHIGAN

IN THE COURT OF APPEALS

People of the ) Ct. App. File No. 216720

State of Michigan ) ty. Ct. File No.

VS. )

)

Robert Lanell Griffin )

Defendant-Appellant )

Angela Pasula, James D. Hills (P14978)

Prosecuting Attorney Attorney for Defendant-Appellant

Courthouse 425 S. Westnedge

811 Port Street Kalamazoo, MI 49007

St. Joseph. MI 49085

APPELLANT'S FIRST AMENDED

MOTION FOR REHEARING

By: James D. Hills

Michael D. Hills

Attorney for Defendant — Appellant

425 S. Westnedge

Kalamazoo, MI 49007

TABLE OF CONTENTS

Index of Authorities pe ean ne saath ciidentaiietliee 3

Statement of Question Presented..........................0.6 4

Statement of Appellate Rehearing Jurisdiction......... 5

Statement of Fact ...............cccccecsereeeeeeeeneeeneeeeeneenens 6

App. 66

I. THE COURT OF APPEALS DID NOT CON-

SIDER THE FACT THAT DEFENSE COUN-

SEL STIPULATED TO THE FACTS WHICH

THE PROSECUTOR USED TO BRING IN

THE DRUG COURIER PROFILE EVI-

DENCE, THEREFORE THERE WAS NO

NECESSITY TO USE DRUG PROFILE EVI-

DENCE FOR ANY PURPOSE OTHER THAN

SUBSTANTIVE EVIDENCE OF GUILT.

Il. THE COURT IMPROPERLY INTERPRETED

THE CURRENT STATE OF THE LAW AS IT

APPLIES TO JURY INSTRUCTIONS AS

THEY RELATE TO DRUG COURIER PRO-

FILE EVIDENCE.

Be I nd ctetncsonertiashepbasecdaninipeiuadeieiabibi 10

INDEX OF 0 S CITE

Michigan Court Rules

MCR 2.119% F 3)

MCR 7.203

MCR 7.215(G)

MCR 7.507(A)

Michigan Rules of Evidence MRE 401

Statutes

MCL 333.7401(2\ aii)

MCL 333.7413(2)

Cases Cited

People v. Hubbard, 209 Mich App 234 (1995)

People v. Murray, 234 Mich App 46 (1999)

App. 67

STATEMENT OF QUESTION PRESENTED

WHETHER THE COURT OF APPEALS COMMIT-

TED PALPABLE ERROR BY NOT CONSIDERING

THE FACT THAT DEFENSE COUNSEL STIPU-

LATED TO THE FACTS WHICH THE PROSECU-

TOR USED TO BRING IN THE DRUG COURIER

PROFILE EVIDENCE?

Appellant answers: Yes.

WHETHER THE COURT IMPROPERLY INTER-

PRETED THE CURRENT STATE OF THE LAW AS

IT APPLIES TO JURY INSTRUCTIONS AS THEY

RELATE TO DRUG COURIER PROFILE EVI-

DENCE?

Appellant answers: Yes.

STATEMENT OF JURISDICTION

Defendant was convicted of felony, to wit: possession

with intent to deliver over 225 grams, but * ‘s than 650

grams, of cocaine pursuant to MCL 333.7401(2)a)(ii);

MCL 333.7413(2) by a jury on November 6th, 1998. The

trial was held in the 2nd Judicial Circuit, Berrian County,

Michigan in front of Judge Thomas E. Nelson. Mr. Griffin

was sentenced on December 1, 1998 to 20 to 60 years in

prison. This was a final judgment of the Circuit court and

Defendant appealed that decision to this Court as of right.

This Court issued an unpublished opinion affirming the

Circuit court conviction on February 25th, 2000. Defen-

dant now seeks a re-hearing on this Court’s opinion. This

Court has jurisdiction to order a re-hearing pursuant to

MCR 7.215(G).

Defendant filed a motion for re-hearing on March

16th, 2000. Defendant received a letter from the Court of

App. 68

Appeals dated April 6th, 2000. Said letter indicated

Defendant's motion contained too many pages and that

Defendant had 14 days in which to file an amended motion

for re-hearing.

STATEMENT OF FACTS

Incident: August 21, 1998

On August 21, 1998 at 8:20 p.m. Defendant-Appellant,

Mr. Griffin, (hereinafter referred to as Mr. Griffin) was

stopped on eastbound I-94 in Berrian County for speeding

by Trooper Coleman. (trial transcript page/line 97/4). Mr.

Griffin had a valid Illinois driver license, and was driving

his aunt’s vehicle (141/24 & 142/1) on his way to pick up

his son in Kalamazoo, MI.

Trooper Coleman arrested Mr. Griffin for suspended

Michigan driver license. Mr. Griffin was patted down and

on his person was a pager and an address book. (124/2)

Also located in the vehicle was a Ticket Quest business

card (125/13), cell phone, $301.00 dollars cash and 5-10 air

fresheners by the emergency brake. (128/9; 104/18; 139/25;

& 140/1).

A K-9 unit was called and the dog “hit” on the trunk

(131/8). Inside the trunk was an Atlanta Braves jacket,

work boots, rags and over 500 grams of cocaine. (133/23;

139/5; 150/24; & 151/1). Defendant's fingerprints were not

located either on the trunk nor anywhere inside the trunk.

At the trial Mr. Glen Evans, Mr. Griffin's cousin,

testified that the Braves Jacket and boots were his and,

although the car was registered to his mother, it was

actually his car and he was the primary driver. (186/25;

144/6 & 190/18). Mr. Griffin borrowed the vehicle the night

App. 69

before to pick up his son in Michigan the next morning, as

Mr. Griffin does not own a vehicle. (190/22 & 189/3). Also,

Mr. Griffin works for Ticket Master in Chicago, not Ticket

Quest in Indiana. (189/3).

Finally, Mr. Griffin denied any knowledge of the

cocaine located in the trunk. (135/19).

The only issue at trial was whether the Defendant

had knowledge of the coc ine in the trunk.

ARGUMENT

A. Standard of Review

The moving party must demonstrate a palpable error

by which the court and the parties have been misled and

show that a different disposition of the appeal must result

from correction of the error. MCR 2.119 F\3).

B. Court failed to address Defense “Stipulations” in the

opinion.

This Court in it’s opinion has cited two prior Michigan

cases relating to drug courier profiles, to wit People v.

Hubbard, 209 Mich App 234 (1995); and People v. Murray,

234 Mich App 46 (1999). These two cases set forth the four

basic factors in determining the admissibility of drug

profile evidence. These factors are set forth in italics (page

2 of the Court’s opinion)

This Court was correct when it stated “that the sole

issue material to Defendant’s guilt or innocence was

whether he had knowledge of the cocaine found in the

trunk of the car” (pg 2 of Court's opinion). However, this

Court made a grievous error in assuming that the other

App. 70

factors leading up to the discovery of the drugs, to wit

trooper’s actions in furthering the investigation, search for

drugs, drugs found on the vehicle, the quantity, the intent

to sell said drugs, and Defendant was driving his aunt’s

car was in dispute. The Defense stipulated to the legality

of the Trooper’s search of the vehicle, that Defendant was

driving, that drugs were found in the vehicle, that the

amount was consistent with an intent to sell (trial tran-

script pg. 106 & 107, 111).

These stipulations eliminated the need of any drug

courier profile evidence to be admitted to show why the

trooper searched the vehicle. There was no issue as to why

he continued his search following the defendant’s arrest,

again the Defense stipulated to the validity of the search.

There was absolutely no need for the jury to speculate as

to the troopers actions, as cited by this Court (pg 2 of

Court’s opinion), in justifying the use of drug profile

evidence. Likewise, it was unnecessary for such evidence

to be admitted simply because the Defendant was the sole

occupant of the motor vehicle at the time he was stopped,

as this was also not disputed. There is no legitimate

purpose for such evidence other than to infer the Defen-

dant’s guilt.

This Court correctly states that no cautionary instruc-

tion was given in this case, This court seems to place the

burden on the Defense to request such an instruction,

when this Court in People v. Murray, 234 Mich App 46

(1999), and cited in this Court’s opinion on page 3, places

that burden on the trial court to instruct the jury with

regard to the proper and limited use of profile testimony,

This Court then went on to state its “merely one consid-

eration in the determination of the admissibility of the

App. 71

disputed evidence.” However, this consideration along with

everything else now makes it next to impossible for a jury

to view this profile evidence as anything but substantive

evidence of guilt.

Summary

Defendant believes that this Court, in it’s [sic] opin-

ion, failed to address the Defense stipulations, which

eliminated the necessity for drug profile evidence. The

majority of the Court's opinion centered on the admissibil-

ity of drug profile evidence for proper purposes, without

considering Defense Counsel's stipulations. The “proper

purposes” for which the prosecutor brought in the drug

profile evidence were stipulated to bringing this Court to

the language of Murray supra. In Murray the court stated

that drug courier profile evidence is inherently prejudicial,

Id. at 53, since there was no argument as to what the drug

courier profile evidence was being used to show, ie, Valid

Search etc., the probative value was out weighed by the

prejudicial effect MRE 401. Murray dictates that the drug

courier profile evidence is inadmissible in this case.

It is Counsel's belief that if this Court reviews this

case with Defense Counsel’s stipulations in mind, this

Court will overturn its decision and correct a palpable

error.

App. 72

Relief Requested

Defense Counsel prays that this Honorable Court

grant a rehearing, or summarily overturn it’s prior deci-

sion.

/s/ James D. Hills

James D. Hills (P14978)

Attorney for Defendant-Appellant

Thursday, April 13, 2000

App. 73

STATE OF MICHIGAN

IN THE CIRCUIT COURT

FOR THE COUNTY OF BERRIEN

PEOPLE OF THE Berrien Circuit

STATE OF MICHIGAN, No. 98-403728

Plaintiff, Hon. Thomas E. Nelson

ren Prior Michigan Court of

Appeals No. 216720

ROBERT LANELL GRIFFIN, Prior Michigan Supreme

Defendant. Court No. 117280

/

MOTION FOR POST-CONVICTION RELIEF

UNDER MICH. COMP. L. § 770.2

OR ALTERNATIVELY MCR 6.500 ET SEQ

(With Supporting Brief, Proof of Service -

DATED 6/23/02, and Appendix)

PREPARED BY:

Patrick L. Rose (P-43265)

Attorney for Petitioner (Defendant) Robert Griffin

230 N. Washington Sq.

Suite 306

Lansing, MI 48933

(517)482-2422

NOW COMES the Defendant, ROBERT GRIFFIN

by and through his attorney PATRICK L. ROSE, AND

moves this Court to grant leave relief from judgment in

this matter based on the following:

1. Defendant was originally convicted in the Berrien

County Circuit Court of possession with intent to deliver

more than 225 (but less than 650) grams of cocaine. MCL

333.7401(2\a)lii) [sic]; MSA 14.15(7401)\2Xii). He was

App. 74

sentenced as a second offender to a sentence of twenty

to sixty years incarceration. MCL 333.7413(2)(a\ii); MSA

14.15(7413)(2).

2. This case was presided over by the Hon. Thomas

E. Nelson.

3. At trial and at the original appellate level, the

Defendant was represented by James D. Hill, 425 West-

nedge, Kalamazoo, MI 49007. The undersigned was

retained after the affirmance of the Defendant’s conviction

and represented the Defendant on rehearing in the Michi-

gan Court of Appeals and on appeal to the Michigan

Supreme Court.

4. The Petitioner (Defendant Robert Griffin) has

assembled and filed with the Court copies of the pertinent

documents from the Defendant’s original appeal have been

provided to this Court to this Court in the attached Ap-

pendix. These include the Defendant’s Brief on Appeal to

the Michigan Court of Appeals (App. 225a), the People’s

Brief (App. 254a), the decision on the merits (App. 285a),

the rehearing pleadings (App. 289 et seq), and the plead-

ings filed in the Michigan Supreme Court (App. 314a).

5. There Lave been no federal habeas corpus actions

or prior post-conviction proceedings in this matter. MCR

6.502(CX9).

6. The undersigned requests this Court to grant

post-conviction relief based for reasons set forth in the

attached brief. The following are the point headings raised

in that motion:

App. 75

THE TRIAL COURT ERRED IN THE

ADMISSION OF THE TESTIMONY OF

GLEN EVANS’ FIFTH AMENDMENT

TESTIMONY AT TRIAL WHERE THE

PROSECUTOR SOUGHT TO DRAW

POSITIVE INFERENCES OF DEFEN-

DANT’S GUILT FROM IT, ABSENT A

GRANT OF IMMUNITY TO ALLOW

DEFENDANT GRIFFIN TO CON-

FRONT HIS ACCUSER, AND WITH-

OUT A CAUTIONARY INSTRUCTION

SINCE THAT VIOLATES HIS SIXTH

AMENDMENT AND MICHIGAN CON-

STITUTIONAL RIGHTS OF CON-

FRONTATION AND DUE PROCESS

THIS COURT SHOULD REVERSE |

BASED ON THE PROSECUTOR’S IM-

PROPER CLOSING ARGUMENTS

ABOUT THE INFERENCES TO BE

DRAWN FROM THE FIFTH AMEND-

MENT TESTIMONY OF GLENN EV-

ANS, A POTENTIAL SUSPECT WHO

MAY HAVE OWNED THE DRUGS,

AND WHOSE SILENCE INCRIMI-

NATED HIM.

THE TRIAL COURT ERRED BY AL-

LOWING THE INTRODUCTION OF

DRUG COURIER TESTIMONY BY

TROOPER COLEMAN THAT LINKED

MR. GRIFFIN TO THE DRUGS IN THE

TRUNK THE LACK OF RELIABILITY

IS CLEAR GIVEN THAT DRUG COU-

RIER PROFILE ANALYSIS DOES NOT

PROVIDE A RELIABLE BASIS TO

LINK MR. GRIFFIN TO THE DRUGS

BASED ON A MATCH BETWEEN HIS

INNOCENT CONDUCT AND THE

App. 76

PROFILE, SO THAT ITS ADMISSION

VIOLATES THE RULE IN PEOPLE V.

HUBBARD, AND REQUIRES A NEW

TRIAL, AND THE DEFENSE COUN-

SEL ERRED TO PRESENT EXPERT

WITNESS TESTIMONY TO REBUT

TROOPER COLEMAN’S UNRELIABLE

LAY AND EXPERT OPINION TESTI-

MONY REGARDING THE ALLEGED

LINK BETWEEN ROBERT GRIFFIN’S

CONDUCT AND THAT OF A DRUG

DEALER, AND IN FAILING TO SEEK A

LIMITING INSTRUCTION AND IN

FAILING TO OBJECT TO ADMISSION

OF THE TESTIMONY BASED ON

THOSE FACTS UNDER MRE 401, MRE

403, MRE 701, MRE 702 OR MRE 703

AND IN FAILING TO OBJECT TO THE

~ ADMISSION OF EVIDENCE THAT

THE DEFENDANT WAS ON PAROLE.

THE CIRCUIT COURT ERRED IN

DENYING THE DEFENDANT'S DI-

RECTED VERDICT MOTION, AND

THIS SAME COURT SHC™'LD GRANT

A NEW TRIAL TO PRE. <NT A MIS-

CARRIAGE OF JUSTICE, SINCE THE

EVIDENCE WAS INSUFFICIENT AS

A MATTER OF LAW TO PERMIT A

RATIONAL TRIER OF FACT TO FIND

EACH ELEMENT OF THE CRIME

CHARGED BEYOND A REASONABLE

DOUBT.

THIS COURT SHOULD REVERSE

BASED ON THE CUMULATIVE ER-

RORS COMMITTED AT TRIAL AND,

THE FACT THAT NONE OF THE

App. 77

ERRORS CAN BE DEEMED TO BE

HARMLESS

VI. DEFENDANT WAS DENIED HIS CON-

STITUTIONAL RIGHT TO EFFEC-

TIVE ASSISTANCE OF APPELLATE

COUNSEL WHEN THESE ISSUES

WERE NOT RAISED ON HIS INITIAL

APPEAL.

Vil. THE INTEREST OF .USTICE STAN-

DARDS OF MICH. COMP. L. § 770.1

AND 770.2 PERMIT THIS COURT TO

GRANT A DELAYED MOTION FOR

NEW TRIAL AT ANY TIME IN THE

INTEREST OF JUSTICE AND THIS

SUBSTANTIVE RIGHT CONTROLS IN

THIS CASE OVER THE PROCEDURAL

RULES CONTAINED IN MCR 6.500 ET

SEQ LIMITING POST-CONVICTION TO

CASES WHICH A CRIMINAL DEFEN-

DANT CAN DEMONSTRATE CAUSE

(OR ACTUAL INNOCENCE) AND AC-

TUAL PREJUDICE.

VIII. THE GOOD CAUSE REQUIREMENTS

OF MCR 6.508(D)(3) SHOULD BE

WAIVED BECAUSE THERE EXIST A

SUBSTANTIAL POSSIBILITY THAT

THE DEFENDANT IS INNOCENT.

7. The Petitioner (Mr. Griffin) has addressed in a

supported brief, whose factual allegations and legal

arguments are hereby incorporated in this Motion by

reference, the grounds for relief from judgment; and, asks

this Court to grant a new trial based on the motion and

brief, as well as other relief.

App. 78

RELIEF REQUESTED

WHEREFORE, Defendant prays this Honorable

Court to grant the following Relief as required:

1. Require the prosecutor to answer this petition;

2. Order an evidentiary hearing, as required by

People v. Ginther hearing, and by U.S. Supreme Court

decisional law, and by the Sixth Amendment to the U.S.

Constitution, where this Court hears evidence needed to

grant relief:

(A) Testimony from Mr. Griffin's expert that the

drug courier profile is inapplicable;

(B) Testimony showing why Mr. Griffin was denied

his right to effective assistance of trial and ap-

pellate counsel;

(C) Testimony from Glenn Evans after he is subpoe-

naed and can testify;

(D) Testimony from Defendant Griffin's police expert

on drug courier profile testimony to show what

testimony could be offered to rebut Trooper Cole-

man’s drug courier profile testimony, and to use

it in an exculpatory manner;

(E) Testimony from an expert attorney called by

Defendant Robert Griffin to show why he was

given ineffective assistance of counsel, and why

the errors of his trial counsel were not strategic

or harmless;

App. 79

3. After full consideration, grant Defendant relief

from judgment and order a new trial where:

(A) Mr. Evans is granted immunity and is permitted

to testify or at minimum where the prosecution

is barred from arguing that the witness's invoca-

tion of his right remain silent should be applied

against Mr. Griffin;

(B) Where Trooper Coleman is barred from offering

drug courier profile testimony or at minimum

where the jury is permitted to hear from defense

experts who the drug courier profile was misap-

plied in this case.

4. Permit the filing of the attached brief,

5. Grant hearings or other relief the Court deems

necessary and proper in the premises;

— Respectfully submitted,

Dated: June 20, 2002 Patrick L. Rose — P43265

230 N Washington Sq Ste 306

Lansing, MI 48933-1312

App. 80

STATE OF MICHIGAN

IN THE CIRCUIT COURT

FOR THE COUNTY OF BERRIEN

PEOPLE OF THE Berrien Circuit

STATE OF MICHIGAN, No.98-403728

Plaintiff, Hon. Thomas E. Nelson

an Prior Michigan Court of

Appeals No. 216720

ROBERT LANELL GRIFFIN,

Prior Michigan Supreme

Defendant. Court No. 117280

(With Supporting Brief, Proof of Service -

DATED 6/23/02, and Appendix in Support)

PREPARED BY:

Patrick L. Rose (P-43265)

Attorney for Petitioner (Defendant) Robert Griffin

230 N. Washington Sq.

Suite 306

Lansing, MI 48933

(517)482-2422

(Oral Argument Requested)

STATEMENT OF FACTS

A. Procedural History

Robert Griffin was convicted by a jury of possession

with intent to deliver greater than 225 but less than 650

grams of cocaine as a sex offender, M.C.L. § 333.7401(2Xa\ii);,

M.C.L. § 333.7413(2).. He was sentenced to a term of

twenty (20) to sixty (60) years. His appeals to the Michi-

gan Court of Appeals and Michigan Supreme Court were

denied. The undersigned was counsel to Mr. Griffin in the

Supreme Court only — having been retained after the

Court of Appeals heard an appeal filed by his former trial

counsel and denied it. The Michigan Supreme Court

denied leave to appeal on March 28, 2001 and the motion

for rehearing on June 26, 2002.

B. The Trial

Richard Griffin was stopped on 1-94 in Lincoln Town-

ship (Berrien County) by Officer James Coleman who was

working a one-person radar unit on the freeway, (see

Prosecutor’s Opening Statement, Transcript, p. 96-97, App

81a-82a; Trooper Coleman’s Trial Testimony, Transcript,

page 96-97, App. 82a). At the time that he made the stop,

Coleman testified that Mr. Griffin was driving 78 miles an

hour down the freeway, (See Prosecutor’s Opening State-

ment, Transcript, 88, App. 74-74 [sic]; Trooper Coleman's

Testimony at page 97, App. 82a). Mr. Griffin was alone in a

App. 82

1995 Olds Aurora and freely pulled over in response to

eet nel Sian eae een are ee

97, App. 82a).

Mr. Griffin presented had [sic] a valid Dlinois driver’s

license, but didn’t have paperwork for the car, (Coleman at

98, App. 83a). The car was registered to a “Patricia Taylor”

in Illinois, The Officer testified that Mr. Griffin stated that

Patricia Taylor was his aunt and that only Mr. Griffin and

his aunt drove the vehicle, (Coleman at 128, 142, App.

100a, 114a). Attempts to get the officer [sic] to admit that

he also knew that Glenn Evans drove the car were futile,

(Coleman at 153, App. 128a). During the officer’s initial

encounter with the Robert Griffin, the officer saw the top

of a zip lock baggie in the center counsel [sic] of the car

when Mr. Griffin was hunting for the registration. When

the officer asked Mr. Griffin what the baggie was, Mr.

Griffin showed the bag to the officer which contained some

candies. Mr. Griffin stated to the officer that “he didn't

play that way,” (Coleman at 103, App 88a). No objection

was interposed to this question, but the trial court barred

the officer from offering his spin on what the statement

meant, Id.

The officer took the information back to his car and

ran it through the LEIN system. The LEIN system stated

that the Robert Griffin’s Michigan driver’s license was

suspended for a poor driving record, (Coleman at 100, App.

85a).' Officer Coleman testified that Mr. Griffin had an

’ This was significant because an individual arrested for driving on

a suspended license is guilty of a civil infraction and cannot be arrested.

The officer testified that an exception exists for an out-of-stater where

the officer has the discretion to take the individual to station to post a

bond, (Coleman at 143, App. 115a).

App. 83

OCA number assigned to him. An OCA number is a track-

ing number indicating that another police agency was

tracking the individual's traffic stops, Jd. There was no

objection to this question. The Officer testified that the

~ Robert Griffin’s driver’s license while valid in Illinois, was

not valid in Michigan, (Coleman at 101, App. 86a) On

cross-examination, the officer testified that all the points

had dropped off and that Mr. Griffin could have his Michi-

gan license reinstated for a simple payment of a rein-

statement fee, (Coleman at 142). At that time, the Officer

made a decision to arrest the Robert Griffin, executed a

pat down incident to the arrest and found a pager together

with an address book, (Coleman at 101, App. 86a).

During the course of the Officer’s inspection of the car,

the officer noted that the car was registered in the name of

a third person, Mr. Griffin had a beeper and a pager,’ that

the car had an unusual amount of air fresheners tied

together by the emergency brake, and that Mr. Griffin had

a business card with odd notes on the back of it, (Pros

Opening 90, App. 75a; Coleman at 104; App. 89a).

Over defense objection, the officer was permitted to

testify that in his experience, numerous air fresheners

were associated with drug dealers, (Coleman at 105; App.

90a). Defense counsel made extensive arguments why this

drug courier profile testimony should not be allowed. The

defense was given a continuing objection to this line of

testimony, Id at 117. At various points, the prosecution

attempted to suggest that the air fresheners were placed

* The officer later testified that in his opinion, cell phones and

pagers were indicative of drug dealers. The officer later admitted that

most people in Chicago had both cell phones and pagers, (Coleman at

150, 158, App. 122a-130a).

-_ App. 84

in a suspicious place, but on cross-examination, the officer

admitted that they could not legally be dangling from the

mirror, (Coleman at 154, App. 126a). Officer Coleman

testified that he didn’t know how old the fresheners were,

what their life span was, or whether they even still

worked, Id.. On cross-examination, the officer also admit-

ted that people rarely look in the trunks of cars that they

borrow, (Coleman at 158, App. 98a).

The officer also testified at length that it was suspi-

cious to have cell phones and pagers, Id. (It is important to

note that Trooper Coleman never attempted to use the cell

phone and could not determine whether it had roaming

capabilities in Michigan).’ $301 was also found, but he was

inconsistent about whether the money was found in the

passenger compartment of the car on [sic] Robert Griffin’s

person.

The officer also testified that Mr. Griffin told him that

he worked at Ticketmaster in Chicago, but had a business

card for an individual who worked at “Ticket Quest” in

Indiana, (Coleman 149, App. 121a).‘ On the back of the

card were a series of names and numbers running from

420 through 3000, Id. At 126. Over defense objection, the

officer was permitted to testify that he believed that it was

amounts of money, Id. The business card was found in the

Robert Griffin’s address book.

* This is not as unusual as it might seem. Prepaid cell phones often

roam on different networks and some cellular networks do not operate

out of their home areas. See, e.g. http//www.cricketcommunications.com/

faqs.asp#2.

* Glenn Evans testified that the card was his, (Evans at 194).

App. 85

Mr. Griffin told the Officer that he had the wrong man

and that he never lived in Michigan, didn’t have a Michi-

gan license, and that he was not on parole, (Coleman at

138, App. 110a). These statements were made when the

officer told him about the suspended driver's license record

for a Richard Griffin from Kalamazoo (with his date of

birth) who was on parole, (/d.; Pros Opening at 91, App.

76a). The officer decided to detain Mr. Griffin and called

for a “drug dog” which alerted positively to the car, (Cole-

man at 131).

Utilizing this, the officer opened the car trunk, found

a shopping bag by the left wheel well which was tied shut.

He opened the bag and another bag and found cocaine.

(Coleman at 131, App. 103a).* Mr. Griffin was arrested and

charged with the instant offense. No fingerprints could be

lifted from the bag. The prosecution and police explained

that this was due to the fact that several police officers

handled the drugs with their bare hands, (Pros Opening at

92, App. 77a; Coleman at 139, App. 111a). Police also found

an Atlanta Braves jacket and some tennis shoes (later

determined to actually be work shoes) in the trunk of the

car, (Coleman at 134, 146). The officer testified that they

looked like they would fit the Robert Griffin, Id.* They also

found some car cleaning type equipment in the trunk,

(Coleman at 135, App. 107a).

* Note that the prosecutor during his opening statements incor-

rectly referred to the bag as a duffle bag, (Pros Opening at 91, App. 76a)

* The Glenn Evans testified that the clothing was his. He also

testified to a number of innocent items in the car that the officer did not

mention and testified that there were miscellaneous cards in the car,

(TT 193, App. 147a).

App. 86

While Mr. Griffin was in custody, his pager continu-

ously went off in the police property room and the police

went and played the numbers out of the beeper. These

numbers corresponded to different numbers in the Kala-

mazoo area, (Coleman at 123, App. 95a). The police never

called these numbers to investigate who was calling. The

prosecutor juxtaposed these multiple numbers of unknown

origin with Robert Griffin’s explanation that he was in

Kalamazoo to pick up his child for the weekend, Jd. De-

fense counsel did not object to this argument or make any

argument about the police failure to investigate or about

the unknown origin of the calls. Defense counsel also did

not call any family members to testify about Mr. Griffins’

family and acquaintances (in the Kalamazoo area) who

called Mr. Griffin. The officer denied stating at the police

station that he told someone over the phone that he was

unsure whether to charge Mr. Griffin or Mr. Evans with

the offense, (Coleman at 144, App. 116a)..

A prosecution expert witness testified at trial regard-

ing the street value of the drugs and that anyone who has

that much cocaine, intends to sell it, (Lang 163). The value

was $10,000 wholesale; $20,000-$30,000 retail, (Lang at

172). The prosecutor then tried admitted evidence (over

objection) that larger dealers carry pagers and cell phones.

This line of questioning was shut down by the judge, but

after the jury heard the answer, Id. At 172-173. It should

be noted that at TT 179-184 (App. 133a-138a), there was

discussion of lost testimony where the parties stipulated

outside the presence of the jury what the testimony was,

Id.

The other likely suspect in the case was Glenn Evans.

Mr. Evans was Robert Griffin’s cousin and was unem-

ployed at the time, (Evans at 186, 197, App. 140a, 151a).

App. 87

He lived with his mother Patricia Taylor and his stepfa-

ther, Id. Mr. Evans testified that the Aurora belonged to

him even though it was titled in his mother’s name,

(Evans at 187, 190, App. 14la, 144a). Mr. Evans testified

to loaning the car to Mr. Griffin on the day in question so

that Mr. Griffin could drive to Kalamazoo to visit with his

son, Id. The witness plead [sic] the Fifth Amendment when

questioned about ownership of the bag, (Evans at 186, 205,

App. 140a, 159a). Ultimately, the Defendant was convicted

as charged and appealed of right, [sic] (App. 221a).

C. The Appeal

In the Defendant’s brief on appeal to the Michigan

Court of Appeals, his trial attorney raised one issue

challenging the admission of drug courier profile, (App.

225a). On February 25, 2000, the Court of Appeals af-

firmed the Defendant’s conviction in an unpublished

opinion, (App 309a). Up to this time, the Defendant was

represented by Mr. Hill. Following the Defendant’s convic-

tion in the Michigan Court

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