People v. Davis

649 N.W.2d 94

250 Mich. App. 357

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marcus Lellweyne DAVIS, Defendant-Appellant.

Docket No. 220087.

Court of Appeals of Michigan.

Submitted January 4, 2001, at Grand Rapids.

Decided March 8, 2002, at 9:20 a.m.

Released for Publication June 14, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, James A. Cherry, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Valerie R. Newman), for the defendant on appeal.

Before: WILDER, P.J., and HOOD and CAVANAGH, JJ.

WILDER, P.J.

Defendant appeals as of right from his bench trial conviction of possession with intent to deliver 225 to 649 grams of cocaine, M.C.L. § 333.7401(2)(a)(ii).¹ He was sentenced to a term of imprisonment for 240 to 360 months. We affirm.

I. Facts and Procedural History

On October 21, 1998, at some time between 11:30 and 11:45 p.m., a Chevrolet Cavalier, driven by defendant, passed Officer John Hopkins of the Baroda-Lake Township Police Department, who was patrolling eastbound traffic on I-94.² At that time, Officer Hopkins, who was parked in the median between the eastbound and westbound lanes of I-94, noticed that defendant's view was obstructed by objects hanging from the rearview mirror in violation of M.C.L. § 257.709(1)(c).³ Officer Hopkins began to follow defendant because of this violation and observed defendant's vehicle weaving in its lane and speeding, in violation of M.C.L. § 257.642(1)(a)⁴ and M.C.L. § 257.628(4).⁵ Officer Hopkins executed a traffic stop, informed defendant that he was stopped because of the view obstruction, and because his vehicle was weaving and speeding, and requested defendant's driver's license, vehicle registration, and proof of insurance. Defendant promptly provided these items to Officer Hopkins. Defendant also informed Officer Hopkins that he had borrowed the vehicle from his mother. After learning that the vehicle was not registered to defendant, Officer Hopkins asked defendant to get out of the vehicle, which he did. Officer Hopkins then patted defendant down for weapons and asked him to sit in the back of the patrol car.

While in the patrol car, Officer Hopkins ran defendant's name through the Law Enforcement Information Network (LEIN). The LEIN check indicated that defendant had two outstanding warrants for domestic violence and unpaid child support; therefore, defendant was placed under arrest. Following defendant's arrest, Officer Hopkins searched the vehicle and found a black leather jacket with a bulge in the sleeve. Officer Hopkins then reached into the sleeve and pulled out a newspaper flyer wrapped around a bag containing 261 grams of cocaine.

Before trial, defendant moved to suppress the evidence found in the vehicle on the grounds that (1) Officer Hopkins' stated reasons for stopping defendant were a pretext, (2) no probable cause existed to stop defendant, (3) defendant did not provide consent to search the vehicle, and (4) under the totality of the circumstances, the cocaine must be suppressed as "fruits of the poisonous tree." Following a suppression hearing held on January 7, 1999, the trial court denied defendant's motion to suppress.

Defendant's bench trial commenced on March 25, 1999. During trial, defendant testified that he and his codefendants,⁶ who were passengers in defendant's vehicle at the time of the stop, had gone to Chicago to pay a parking ticket and then gotten haircuts from Kirk Hamill, a friend of defendant's. Defendant also testified that that they arrived too late to pay the ticket, so he left $30 with Hamill and asked him to pay the ticket on defendant's behalf. Defendant claimed that while they were at Hamill's barbershop, Hamill used the telephone, received a telephone call shortly thereafter, and asked defendant to accompany him outside. Defendant further testified that once outside, Hamill requested defendant's vehicle key, another vehicle arrived, defendant went back inside the barbershop, and then approximately fifteen to twenty minutes later, Hamill returned to the barbershop and informed defendant that he had put a package in defendant's coat and that he needed it taken to a car wash in Muskegon Heights and given to a man named Kevin Washington. The trial court did not find defendant's testimony to be believable, instead finding that defendant knew that the package contained contraband and that actual possession of the cocaine had been proved beyond a reasonable doubt. Accordingly, the trial court found defendant guilty as charged and sentenced him to twenty to thirty years' imprisonment.

II. The Stop of Defendant

A. The Initial Stop of Defendant

On appeal, defendant argues that the reasons given for the traffic stop were a pretext and that the trial court clearly erred in denying his motion to suppress the evidence. We disagree. This Court's review of a lower court's factual findings in a suppression hearing is limited to clear error, and those findings will be affirmed unless we are left with a definite and firm conviction that a mistake was made. People v. Custer, 242 Mich.App. 59, 64, 618 N.W.2d 75 (2000), rev'd in part on other grounds 465 Mich. 319, 630 N.W.2d 870 (2001). See also People v. Burrell, 417 Mich. 439, 448, 339 N.W.2d 403 (1983), and People v. Lombardo, 216 Mich.App. 500, 504, 549 N.W.2d 596 (1996). In addition, we review de novo the lower court's ultimate ruling with regard to the motion to suppress. Custer, supra; People v. Garvin, 235 Mich.App. 90, 96, 597 N.W.2d 194 (1999).

Officer Hopkins testified during the preliminary examination, the suppression hearing, and the trial that he intended to stop defendant because defendant's view was being obstructed by air fresheners dangling from the rearview mirror of the vehicle. He also testified that defendant's vehicle was weaving in its lane and speeding just before being stopped. The trial court observed a videotape of defendant's encounter with Officer Hopkins, which revealed not only the dangling ornament from the rearview mirror of the vehicle, but also showed the vehicle going in excess of forty-five miles an hour in a construction zone. In addition, both defendant and his mother testified that there was at least one air freshener hanging from the review mirror. It is clear then, that the record amply supports the conclusion that defendant may have been in violation of M.C.L. § 257.709(1)(c), and that Officer Hopkins had probable cause to believe that defendant was in violation of M.C.L. § 257.642(1)(a) and M.C.L. § 257.628(4). Because Officer Hopkins had probable cause to believe defendant was in violation of three traffic laws, the stop was permissible. People v. Kazmierczak, 461 Mich. 411, 421, n. 8, 605 N.W.2d 667 (2000); People v. Chambers, 195 Mich.App. 118, 121-122, 489 N.W.2d 168 (1992). See also United States v. Taylor, 955 F.Supp. 763, 765 (E.D.Mich., 1997), quoting United States v. Ferguson, 8 F.3d 385, 391 (C.A.6, 1993) ("[S]o long as the officer has probable cause to believe the traffic violation has occurred or was occurring, the resulting stop is not unlawful and does not violate the Fourth Amendment."), and Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (expressly adopting the Ferguson test for determining the reasonableness of an automobilestop). Consequently, on the basis of the record before us, we find that Officer Hopkins' stop of defendant's vehicle was legitimate.

B. The Extension of the Stop

Defendant also argues, for the first time on appeal, that because he was being stopped for a minor traffic violation and since he immediately provided Officer Hopkins with all requested documents, the stop should have only lasted as long as was necessary to write a citation. This issue was not raised below; therefore, it has not been preserved for review. People v. Stanaway, 446 Mich. 643, 694, 521 N.W.2d 557 (1994); People v. Hamacher, 432 Mich. 157, 168, 438 N.W.2d 43 (1989). Nonetheless, because defendant claims that this search violated his fundamental constitutional rights, People v. Grant, 445 Mich. 535, 547, 520 N.W.2d 123 (1994); People v. McRunels, 237 Mich.App. 168, 172, 603 N.W.2d 95 (1999), and since the issue is a question of law and the necessary facts have been presented, we will review the issue. Grant, supra at 553, 520 N.W.2d 123; People v. Lumsden, 168 Mich.App. 286, 292-293, 423 N.W.2d 645 (1988). Defendant's basic claim is that the cocaine was seized as a result of an unlawful search because the intervening detention between the stop and the finding of outstanding warrants was not justified. Specifically, defendant argues that because he cooperated with Officer Hopkins there was no reason to place him in the police car or to investigate any further. When a defendant claims that evidence should be suppressed as a result of an unlawful seizure, the court must ask whether the evidence was gained by exploitation of the alleged illegality. People v. Lambert, 174 Mich.App. 610, 616-617, 436 N.W.2d 699 (1989). Here, defendant was placed under arrest after a LEIN check revealed two outstanding warrants. After his arrest, the vehicle was searched. Accordingly, the vehicle was searched as a valid search incident to an arrest. People v. Fernengel, 216 Mich.App. 420, 422-423, 549 N.W.2d 361 (1996), citing New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and United States v. Hudgins, 52 F.3d 115, 119 (C.A.6, 1995). See also People v. Bullock, 440 Mich. 15, 26, 485 N.W.2d 866 (1992). Because Officer Hopkins' decision to place defendant in the patrol car in no way contributed to the finding of the cocaine, we find that suppression of the evidence was not warranted. Fernengel, supra at 423-424, 549 N.W.2d 361; Lambert, supra at 617-618, 436 N.W.2d 699.

In addition, we find defendant's reliance on People v. Burrell, 417 Mich. 439, 339 N.W.2d...