People v. Turner

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CLAUDELL TURNER, Defendant-Appellant.

No. 357699

Court of Appeals of Michigan

January 25, 2024

UNPUBLISHED

Oakland Circuit Court LC No. 2021-276333-FH

Before: MARKEY, P.J., and SHAPIRO and PATEL, JJ.

ON REMAND

PER CURIAM.

Defendant Claudell Turner, was bound over for trial on two charges-possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv), and possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv)-after a warrantless seizure of drugs, currency, and a scale that were discovered following a Terry^[1] pat-down for weapons on a traffic stop. Turner moved to suppress the evidence. The trial court denied the motion, holding that the search was reasonable and did not exceed the scope of Terry.

This case is before us pursuant to a second remand from our Supreme Court. We denied Turner's initial application for leave to appeal.^[2] In lieu of granting leave to appeal, the Supreme Court remanded the case for our consideration as on leave granted.^[3] On remand, we reversed the trial court's order, holding that the search was unconstitutional and the evidence seized must be suppressed. People v Turner, 342 Mich.App. 581; 995 N.W.2d 857 (2022) (Turner III), vacated by People v Turner, 511 Mich. 992 (2023). The Supreme Court vacated our decision and remanded with instructions to consider whether the search of the interior of defendant's clothing was lawful under Terry. People v Turner, 511 Mich. 992 (2023) (Turner IV).

We conclude that the limited pat-down for weapons did not support the seizure of an obviously nonthreatening object from Turner's pocket or his underwear or the shaking of his clothing to dislodge other nonthreatening items. We reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

We previously explained the pertinent facts as follows:

On December 4, 2020, an anonymous person reported to Oakland County Sheriff's Deputy Kevin Myers and Detective Hedrick that he saw a person named "Michael Sullivan" with a black pistol driving a newer, gray Jeep Grand Cherokee on the south side of Pontiac, Michigan. Sullivan was described as an African American male in his 30s with long dreadlocks. The anonymous tipster reported that Sullivan pulled out the black pistol "and was showing it while he was in his vehicle." The anonymous tipster did not report that Sullivan threatened him with the pistol. Neither Myers nor Hedrick had met the anonymous source before this encounter. Myers and Hedrick searched for Sullivan on the Law Enforcement Information Network (LEIN). Myers maintained that the LEIN inquiry confirmed the anonymous source's description of Sullivan and showed that Sullivan had a suspended driver's license and a warrant for his arrest related to a traffic offense.

Less than two hours later, Myers observed a newer, gray Jeep Grand Cherokee cross an intersection on the south side of Pontiac. Although Myers admitted that he was more than a full city block from the intersection at the time that he first observed the Jeep, he maintained that the Jeep "appeared to be going at a high rate of speed ...." Myers initially claimed that he could see that the driver of the Jeep matched Sullivan's description when the Jeep crossed the intersection. But Myers admitted on cross-examination that he was too far from the intersection to identify the driver of the Jeep.¹ Myers turned at the intersection, caught up to the Jeep, and initiated a traffic stop.² The patrol vehicle's dashcam captured the events.

As Myers and Hedrick approached Turner's vehicle, Turner had his hands in the air. Myers ordered Turner to roll down his window. Turner complied with the command. Myers asked Turner if he had any identification. Approximately six seconds later, Myers opened the driver's side door and ordered Turner out of the vehicle before he could produce his identification. Turner stepped out of the vehicle. Myers started handcuffing Turner as he was exiting the Jeep. Hedrick requested consent to search Turner's vehicle, but Turner refused. In response to a series of questions by Hedrick, Turner provided his full name, confirmed that he had a valid driver's license, stated that his license was inside the vehicle on the center console, and confirmed that the vehicle was a rental.³ While Turner was responding to Hedrick's questions, Myers performed a pat-down search, reached into Turner's left pocket, and withdrew some currency. Myers did not find any weapons in Turner's pockets. Turner offered to retrieve his identification from the vehicle, but the officers refused.

Rather than retrieve Turner's identification from the vehicle to confirm his identity, the officers took Turner behind their patrol vehicle and searched him further.⁴ Myers felt "some type of hard like plastic" from the outside of Turner's pants with his right hand. With his left hand, Myers pulled the elastic waistband of Turner's pants away from Turner's body, looked inside of Turner's pants, and observed a black digital scale. While Myers and Hedrick were searching Turner, a third officer, Detective Brian Wilson, observed Turner's identification on top of the center console and retrieved it. Wilson approached the two officers with the identification as Myers was removing the scale from Turner's pants. Hedrick continued to search Turner. Wilson grabbed Turner's pants and underwear from the outside, shook them, and a clear, plastic baggie fell out of the bottom of his pant leg.⁵

¹ It is undisputed that Turner is an African American male in his 30s and that, at the time of the incident, he had long, braided hair.

² During the preliminary examination, Myers maintained that the reason he initiated the traffic stop was to investigate the firearm allegation. At an evidentiary hearing, Myers initially testified that he initiated the traffic stop because the Jeep was speeding. But on cross-examination, Myers maintained that the reason he stopped the Jeep was to investigate the firearm allegation.

³ It is undisputed that Turner had a valid driver's license and did not have any warrants for his arrest.

⁴ This portion of the search is not within the camera's view.

⁵ The baggie contained two smaller baggies-one containing a substance that tested positive for cocaine and one containing a substance that tested positive for heroin. While out of view of the camera, Hedrick can be heard on the audio asking Myers, "Was the scale in there too?" Myers responded, "Oh yeah. I dug that out of his boxers." Shortly thereafter, the dashcam video depicts both officers turning off their microphones before searching Turner's vehicle. [Turner III, 342 Mich.App. at 587-589 & n 1-5.]

The central issue before us is the legality of the search. The trial court opined that the search was reasonable and did not exceed the scope of Terry because Myers "observed a bulge in Defendant's pants and testified that he did not know if the object in the Defendant's pants was a weapon." In Turner III, a majority of this Court discussed the legal parameters of a Terry stop and related pat-down search, Turner III, 342 Mich.App. at 591-592, and ultimately concluded that the search exceeded the legitimate scope of the Terry pat-down and the warrantless seizure of the nondangerous items was not authorized by the plain-feel exception set forth in Minnesota v Dickerson, 508 U.S. 366; 113 S.Ct. 2130; 124 L.Ed.2d 334 (1993). Turner III, 342 Mich.App. at 598. Judge MARKEY dissented, opining that the search was constitutional in light of the fact that Myers saw a bulge in defendant's pants that appeared to have a pointy end and Myers reasonably believed that bulge to be a weapon. Id. at 615-617 (MARKEY, J., dissenting). Judge MARKEY disagreed with the majority's reliance on the plain-feel exception, which she did not believe was implicated in this case. Id. at 618-619.

The prosecution sought leave to appeal Turner III. The Supreme Court vacated Turner III and remanded to this Court to analyze the facts under the rules governing a Terry search:

In the present case, the prosecution argues that Terry justified searching the interior of the defendant's clothing without reference to the "plain feel" exception. A Terry search requires only reasonable suspicion and is lawful if the search is "necessary for the discovery of weapons which might be used to harm the officer or others nearby" and is "reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." The Court of Appeals majority mentioned this standard but never applied it and ultimately analyzed the issue only under the "plain feel" exception. Accordingly, we vacate the Court of Appeals' judgment and remand this case to the Court of Appeals to address this issue. [Turner IV, 511 Mich. at 993 (citations omitted).]

II. ANALYSIS

"Both the United States Constitution and the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures." People v Pagano, 507 Mich. 26, 31-32; 967 N.W.2d 590 (2021), citing U.S. Const, Am IV, and Const 1963, art 1, § 11. In recognition of this right, the government must typically obtain a warrant before conducting a search. People v Swenor, 336 Mich.App. 550, 564-565; 971 N.W.2d 33 (2021). Warrantless searches and seizures are "presumptively unreasonable and, therefore, unconstitutional," People v Hughes (On Remand), 339 Mich.App. 99, 110; 981 N.W.2d 182 (2021), unless conducted pursuant to one of the narrow exceptions to the general rule requiring a warrant, Swenor, 336 Mich.App. at 565.

As the majority explained in Turner III, the United States Supreme Court created one such exception in ...