# Petition for Writ of Certiorari — Griffin v. Michigan

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0149%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 978

## Text

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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0149%3A1. Public record. Not legal advice.