Opinion
No. 357699
08-18-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Claudell TURNER, Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Karen McDonald, Prosecuting Attorney, Marilyn Day, Chief, Appellate Division, and Danielle Walton, Assistant Prosecuting Attorney, for the people. Paul Stablein, PLLC (by Paul J. Stablein ) for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Karen McDonald, Prosecuting Attorney, Marilyn Day, Chief, Appellate Division, and Danielle Walton, Assistant Prosecuting Attorney, for the people.
Paul Stablein, PLLC (by Paul J. Stablein ) for defendant.
Before: Markey, P.J., and Shapiro and Patel, JJ.
Patel, J. Defendant, Claudell Turner, was pulled over by two Oakland County Sheriff's deputies because the vehicle that he was driving matched the description provided by an anonymous source who claimed that he saw a person named "Michael Sullivan" with a black pistol, driving a gray Jeep Grand Cherokee. Six seconds after one of the deputies asked Turner for his identification, Turner was ordered out of the vehicle, handcuffed, and searched without any opportunity to produce his identification, which was in plain view on the center console of the vehicle. Turner argues that the trial court erred by denying his motion to suppress the evidence seized because there was no probable cause for his arrest and the search was unconstitutional.
The Fourth Amendment of the United States Constitution protects individuals from being subjected to unreasonable searches and seizures. The pat-down search of Turner did not reveal any weapons that would justify the search of his pockets, pants, and underwear. And there was no probable cause to arrest Turner based on the statements from an anonymous source who provided the name of a different person. We conclude that the search was unconstitutional, and the evidence seized must be suppressed. We reverse the trial court's order denying Turner's motion to suppress.
I. FACTUAL BACKGROUND
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. Myers turned at the intersection, caught up to the Jeep, and initiated a traffic stop. The patrol vehicle's dashcam captured the events.
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.
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.
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. 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. 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.
It is undisputed that Turner had a valid driver's license and did not have any warrants for his arrest.
This portion of the search is not within the camera's view.
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 was bound over for trial on one count of possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv ), and one count of possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv ). Turner moved to suppress the evidence seized during the stop, arguing that the search was unconstitutional. The trial court denied the motion to suppress. The trial court concluded that the pat-down search was reasonable and did not exceed the scope of Terry v Ohio , 392 U.S. 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968), 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."
Turner filed an application for leave to appeal, which this Court denied. Thereafter, Turner sought leave to appeal in our Supreme Court. In lieu of granting the application, our Supreme Court remanded the case to this Court for consideration as on leave granted.
People v Turner , unpublished order of the Court of Appeals, entered August 18, 2021 (Docket No. 357699).
People v Turner , 509 Mich. 854, 969 N.W.2d 64 (2022).
II. STANDARD OF REVIEW
We review de novo a trial court's ultimate decision on a motion to suppress, People v Moorman , 331 Mich App 481, 484, 952 N.W.2d 597 (2020), but we review for clear error any factual findings, People v Elliott , 494 Mich. 292, 300, 833 N.W.2d 284 (2013). A finding is clearly erroneous if, after an examination of the entire record, the reviewing court is left with a definite and firm conviction that the trial court made a mistake. People v Givans, 227 Mich App 113, 119, 575 N.W.2d 84 (1997). Underlying questions of law are reviewed de novo. People v Daoud, 462 Mich. 621, 629-630, 614 N.W.2d 152 (2000).
In reviewing a motion to suppress evidence, a trial court may rely on testimony from the preliminary examination if the parties stipulate. See People v Kaufman , 457 Mich. 266, 275-276, 577 N.W.2d 466 (1998). In this case, both parties referred to the preliminary-examination testimony in their trial court briefs, and the trial court was provided with a full copy of the preliminary-examination transcript with the briefing on the motion to suppress. Therefore, our review includes the preliminary-examination testimony.
III. ANALYSIS
Turner argues that the officers’ search was unconstitutional because the pat-down of his outer clothing did not reveal a weapon and there was no probable cause to arrest him based on the statements from an anonymous source who provided the name of a different person. We agree.
A person's right to be secure against unreasonable searches and seizures is guaranteed by both the United States Constitution and the Michigan Constitution. U.S. Const., Am. IV ; Const. 1963, art. 1, § 11 ; People v Pagano, 507 Mich. 26, 31-32, 967 N.W.2d 590 (2021). A seizure occurs "when, in view of all the circumstances, a reasonable person would conclude that he or she was not free to leave." People v Kavanaugh , 320 Mich App 293, 300, 907 N.W.2d 845 (2017). "A traffic stop for a suspected violation of law is a ‘seizure’ of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment." Heien v North Carolina , 574 U.S. 54, 60, 135 S Ct 530, 190 L Ed 2d 475 (2014). It is presumed that a warrantless search or seizure is unreasonable under the Fourth Amendment unless one of the few specific exceptions are applicable. Illinois v Gates, 462 U.S. 213, 236, 103 S Ct 2317, 76 L Ed 2d 527 (1983) ; People v Hughes , 506 Mich. 512, 524-525, 958 N.W.2d 98 (2020) ; People v Reed , 393 Mich. 342, 362, 224 N.W.2d 867 (1975).
One such exception is a Terry investigatory stop. Johnson v. VanderKooi , 509 Mich. 524, 539, 983 NW2d 779 (2022). A Terry stop allows an officer to conduct a brief, warrantless seizure when the officer has at least a reasonable suspicion of criminal activity based on articulable facts. Terry , 392 U.S. at 20-27, 88 S.Ct. 1868. A Terry stop can be justified by an anonymous tip if the tip is sufficiently corroborated. Florida v. J.L. , 529 U.S. 266, 270, 120 S Ct 1375, 146 L Ed 2d 254 (2000) ; Pagano , 507 Mich. at 33, 967 N.W.2d 590. But " Terry stops are limited in both scope and duration." Johnson, 509 Mich at 539, 983 N.W.2d 779. "The scope of the detention must be carefully tailored to its underlying justification." Florida v Royer , 460 U.S. 491, 500, 103 S Ct 1319, 75 L Ed 2d 229 (1983). During a Terry stop, an officer may "make reasonable inquiries aimed at confirming or dispelling his suspicions." Minnesota v Dickerson , 508 U.S. 366, 373, 113 S Ct 2130, 124 L.Ed 2d 334 (1993) (quotation marks and citation omitted).
If an officer has a reasonable suspicion that a person is armed and dangerous, the officer may conduct a limited pat-down search for weapons during a Terry stop. Terry , 392 U.S. at 24, 88 S.Ct. 1868 ; People v Champion , 452 Mich. 92, 99, 549 N.W.2d 849 (1996). But " Terry strictly limits the permissible scope of a patdown search to that reasonably designed to discover guns, knives, clubs, or other hidden instruments that could be used to assault an officer." Champion , 452 Mich. at 99, 549 N.W.2d 849. "Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ or indeed, any search whatever for anything but weapons." Ybarra v Illinois , 444 U.S. 85, 93-94, 100 S Ct 338, 62 L Ed 2d 238 (1979). "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence...." Adams v Williams, 407 U.S. 143, 146, 92 S Ct 1921, 32 L Ed 2d 612 (1972). Terry does not authorize an officer to conduct "a general exploratory search for whatever evidence of criminal activity he might find." Terry, 392 U.S. at 30, 88 S.Ct. 1868.
A. PLAIN-FEEL EXCEPTION
Turner does not challenge the initial traffic stop. Turner also concedes that Myers had the authority to order him out of the vehicle and conduct a limited Terry pat-down search. However, Turner argues that the deputy violated the dictates of Terry by intruding into Turner's clothing and seizing the objects found therein. We agree.
Myers testified that Turner reached down between his right leg and the center console of the vehicle twice, which is why he ordered Turner out of the vehicle. Turner concedes that Myers had the authority to order Turner to step out of the car pursuant to Pennsylvania v Mimms , 434 U.S. 106, 98 S Ct 330, 54 L Ed 2d 331 (1977).
The "plain feel" exception to the warrant requirement authorizes the warrantless seizure of an object felt during a Terry pat-down search, but only if the item's identity is immediately apparent. Dickerson , 508 U.S. at 375-376, 113 S.Ct. 2130 ; Champion , 452 Mich. at 105, 549 N.W.2d 849. Using the plain-view doctrine as guidance, the United States Supreme Court explained the standard for the plain-feel doctrine:
If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent , there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object
is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.
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Regardless of whether the officer detects the contraband by sight or by touch, however, the Fourth Amendment's requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures.... The seizure of an item whose identity is already known occasions no further invasion of privacy. [ Dickerson , 508 U.S. at 375-377, 113 S.Ct. 2130 (emphasis added).]
An officer must develop "probable cause to believe that the item felt is contraband before going beyond the legitimate scope of the patdown search." Champion , 452 Mich. at 105, 549 N.W.2d 849. "If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed." Dickerson , 508 U.S. at 373, 113 S.Ct. 2130.
In Dickerson, the officer detected a small lump in the defendant's jacket pocket while performing a Terry frisk for weapons. Id. at 369, 113 S Ct 2130. However, it was not immediately apparent to the officer that the object was contraband. Id. It was not until the officer manipulated the object with his fingers that he formed an opinion that the object " ‘felt to be a lump of crack cocaine in cellophane.’ " Id. The officer did not make any claim that he suspected the object was a weapon. Id. at 378, 113 S Ct 2130. The officer then reached into the defendant's pocket and retrieved a small plastic bag containing crack cocaine. Id. at 369, 113 S Ct 2130. The Court held that "the officer's continued exploration of [the defendant's] pocket after having concluded that it contained no weapon" exceeded the sole justification of a Terry pat-down to protect the officer and others nearby. Id. at 378, 113 S Ct 2130. Accordingly, the Court held that the seizure of the cocaine was unconstitutional. Id. at 379, 113 S Ct 2130.
Michigan has adopted Dickerson ’s plain-feel exception to the warrant requirement. Champion , 452 Mich. at 105, 549 N.W.2d 849. During a pat-down search of the defendant in Champion , the officer "felt what he immediately identified as a pill bottle tucked inside [the defendant]’s sweatpants, between his legs in the groin region." Id. at 95, 549 N.W.2d 849. Unlike the officer in Dickerson , the officer in Champion "did not further manipulate or grope the object in order to determine its incriminating character." Id. at 110, 549 N.W.2d 849. The officer testified that, based on his law enforcement experience, he knew that controlled substances were often carried in pill bottles. Id. 95, 549 N.W.2d 849. Based on this knowledge, the officer believed that the pill bottle contained controlled substances, removed it, and found that it contained crack cocaine. Id. The defendant was placed under arrest, and during the search incident to the arrest, the officers seized currency and additional cocaine. Id. at 95-96, 549 N.W.2d 849. Under the totality of the circumstances, the Champion Court concluded that the officer had probable cause to believe that the pill bottle contained contraband. Id. at 111-112, 549 N.W.2d 849. Because the plain-feel exception is dependent on the totality of the circumstances in each given case, the Champion court cautioned that its holding was limited to the facts before it. Id. at 112-113, 549 N.W.2d 849.
The Champion Court relied on the following facts to support its conclusion:
(1) the defendant got out of his car and walked away upon seeing the patrol car and uniformed officers, (2) [the officer] recognized defendant and knew of his previous drug and weapons convictions, (3) the officers were in a high drug crime area, (4) the defendant had his hands tucked inside the front of his sweatpants while walking away from the officers and refused to take his hands out of his sweatpants after being repeatedly asked to do so, and (5) [the officer], having had twenty years experience as a police officer, was aware that contraband, and in particular controlled substances, were often carried in the type of pill bottle that he felt on defendant's person. [ Champion , 452 Mich. at 111-112, 549 N.W.2d 849.]
In this case, the officers conducted a Terry stop to determine whether Turner was Michael Sullivan, who was believed to be armed. Thus, the scope of the detention and search was limited to verifying Turner's identity and whether he was armed. See Terry , 392 U.S. at 19, 27, 88 S.Ct. 1868 ; Royer , 460 U.S. at 500, 103 S.Ct. 1319. The officers had no other information that would have permitted them to exceed the permissible scope of the Terry stop. Their "reasonable suspicion" was derived from an anonymous tipster that they had never met before. And the only information the officers had about "Michael Sullivan" was his general physical description, the type of vehicle he was driving, that his driver's license was suspended, that he had a warrant for a traffic offense, and that he allegedly had a black pistol while driving a few hours earlier. The officers had never encountered Turner before the traffic stop and could not articulate any reasonable suspicion of ongoing criminal activity other than the anonymous source's allegations against Michael Sullivan.
During the evidentiary hearing, Myers testified that, as Turner stepped out of his vehicle, he "noticed a foreign object that didn't look right in the crotch area of his sweatpants." Myers "thought it was a small caliber pistol like the handle of it, or ... like the butt of the pistol itself or handgun," so he secured Turner in handcuffs. Myers testified, "[W]hen I started patting him down to see what the foreign object was that's when I realized it was ... some type of hard plastic ... from outside his pants." The video reflects that, shortly after Myers started the Terry pat-down, he reached into the left pocket of Turner's pants and withdrew currency. Myers candidly admitted at the evidentiary hearing that he had no idea what was in Turner's left pocket before he withdrew the currency. Myers attempted to clarify his actions:
[ Prosecutor ]: So, when you recovered the money, what were you attempting to ... recover? ...
[ Myers ]: ... I wanted to see what that bulge was, that bulge on that right side there.
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[ Defense Counsel ]: Are you saying that the bulge you saw when he was getting out of the vehicle was the money?
[ Meyers ]: The first time, yes.
After leading Turner off camera, Myers continued to search Turner. At the preliminary examination, Myers described the search off camera as follows: "As I was searching the outer part of his pants, I could feel the—some type of hard like plastic. And with my right hand, I was—I felt over it and then with my left hand I pulled his waistband out from his waist and that's where I observed a black digital scale." But Myers did not testify that he thought the hard plastic was a gun or other type of weapon after he felt it. He simply did not know what it was. He was only able to identify the object after he pulled open the waistband of Turner's pants and looked inside his underwear.
Under the plain-feel exception articulated by Dickerson and adopted by Champion , an officer may seize an object from an individual only "if the officer develops probable cause to believe that the item felt is contraband before going beyond the legitimate scope of the patdown search." Champion, 452 Mich. at 105, 549 N.W.2d 849 (emphasis added). We conclude that, under the totality of the circumstances, Myers did not have probable cause to believe that either of the objects that he felt were weapons. Myers's general exploration of the interior of Turner's pants exceeded the scope of the Terry pat-down. Dickerson , 508 U.S. at 378, 113 S.Ct. 2130.
Likewise, Wilson did not have probable cause to open Turner's pants and underwear and shake them in order to unlodge any objects that may be contained therein. Wilson did not articulate that he felt a weapon or any other object whose contour or mass made its identity immediately apparent. Terry does not authorize an officer to conduct "a general exploratory search for whatever evidence of criminal activity he might find." Terry, 392 U.S. at 30, 88 S.Ct. 1868. A limited Terry pat-down is not intended to be used as a tool to try to discover evidence of crime. Adams, 407 U.S. at 146, 92 S.Ct. 1921.
B. SEARCH INCIDENT TO ARREST
Turner further argues that this search could not have been incident to arrest because there was no probable cause to arrest Turner. We agree.
"A search incident to an arrest is an exception to the warrant requirement, and may occur whenever there is probable cause to arrest." People v Nguyen , 305 Mich App 740, 756, 854 N.W.2d 223 (2014). "The touchstone of the Fourth Amendment is reasonableness." People v Hammerlund , 504 Mich. 442, 451, 939 N.W.2d 129 (2019). Reasonableness dictates that "an arrest must be justified by probable cause." Id. "Probable cause to arrest exists where the facts and circumstances within an officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Champion , 452 Mich. at 115, 549 N.W.2d 849.
1. INFORMATION FROM ANONYMOUS TIPSTER
"Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity[.]" J.L., 529 U.S. at 270, 120 S.Ct. 1375 (quotation marks and citations omitted). "An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse." Id. at 272, 120 S Ct 1375. But this information "does not show that the tipster has knowledge of concealed criminal activity." Id. To provide an officer with reasonable suspicion, an anonymous tip must "be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." Id. "The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search." Id. at 271, 120 S Ct 1375.
In J.L. , an anonymous caller reported to the police that a young African American male wearing a plaid shirt at a particular bus stop was carrying a gun. Id. at 268, 120 S Ct 1375. Shortly thereafter, two officers arrived at the bus stop and observed three African American males. Id. One of the men, JL, was wearing a plaid shirt. Id. JL did not make any threatening moves, and the officers did not see a firearm. Id. Other than the bare information provided by the anonymous caller, "the officers had no reason to suspect any of the three [men] of illegal conduct." Id. The officers conducted a Terry stop, frisked JL, and seized a gun from his pocket. Id. Because the officers only had "the bare report of an unknown, unaccountable informant" who did not provide "any basis for believing he had inside information" about JL, the Supreme Court concluded that the anonymous tip lacked indicia of reliability and did not justify the Terry stop and frisk. Id. at 271, 274, 120 S Ct 1375.
Similarly, in this case, the only information that the anonymous source provided about "Michael Sullivan" was his general physical description, the type of vehicle he was driving, and that he allegedly had a black pistol while driving a few hours earlier. The officers had never encountered Turner before the traffic stop and could not articulate any reasonable suspicion of ongoing criminal activity by Turner. Indeed, the officers looked up Sullivan's information in LIEN and obtained a photograph of Sullivan that matched the description provided by the anonymous tipster. While that corroboration arguably could have provided reasonable suspicion to make a brief, investigatory Terry stop, reasonable suspicion does not equal probable cause. Champion , 452 Mich. at 115, 549 N.W.2d 849. "Probable cause to arrest exists where the facts and circumstances within an officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Id.
Turner concedes this point, so we will not analyze it further.
The officers ordered Turner out of the vehicle and cuffed him without giving him a reasonable opportunity to present his identification. After Turner was seized, he provided the officers with his full legal name, told the officers that he had a valid driver's license, and directed the officers to the location of his identification inside the vehicle (which Wilson testified was in plain view on the center console when he ultimately retrieved it). Turner provided all of this information to the officers before they conducted a general exploratory search in his pockets and underwear, which was beyond the limits of Terry . The officers did not even make a cursory effort to verify Turner's identity before searching him. While the Fourth Amendment allows some mistakes of fact, the limit is that "the mistakes must be those of reasonable men[.]" Brinegar v United States , 338 U.S. 160, 176, 69 S Ct 1302, 93 L Ed 1879 (1949). Under the totality of the circumstances, we conclude that the officers in this case did not have probable cause to arrest Turner based on the anonymous tip.
The prosecution contends that, because Sullivan had an outstanding traffic warrant, and the officers had probable cause to believe that Turner was Sullivan based on the information provided by an anonymous tipster, the officers were authorized to arrest Turner on Sullivan's traffic warrant and conduct a search incident to that arrest. Although the prosecution uses "probable cause" and "reasonably believed" interchangeably in its argument, we note that the applicable standard is whether the officers had probable cause to arrest Sullivan and a reasonable, good-faith belief that Turner was Sullivan when they arrested Turner. See Hill v California , 401 U.S. 797, 802-803, 91 S Ct 1106, 28 L Ed 2d 484 (1971) (concluding that evidence seized during a search of the defendant's apartment following the arrest of a guest in the defendant's apartment was admissible against the defendant because the officers had probable cause to arrest the defendant and had a reasonable, good-faith belief that the guest was in fact the defendant). First, we note that the prosecution did not raise this argument below, in its response to the application for leave to appeal filed in this Court, or in its response to the application for leave to appeal filed in the Supreme Court. In fact, the prosecution argued in the trial court that Turner was not arrested based on the anonymous tip or pursuant to a warrant. Instead, the prosecution took the position that Turner was arrested, without a warrant , because the Terry pat-down search revealed that he possessed cocaine and heroin. Moreover, the dashcam video reflects that Myers specifically told Turner that he was not under arrest and was simply being detained to confirm his identity. Also, Myers testified at both the preliminary examination and the evidentiary hearing that Turner was merely being detained to investigate the firearm allegation. There is no support for the prosecution's argument that the search of Turner was pursuant to his arrest on Sullivan's traffic warrant. And we conclude that, under the totality of the circumstances, the officers did not have a reasonable, good-faith belief that Turner was Sullivan when they arrested Turner for charges unrelated to Sullivan's warrant.
2. RESIDUE ON THE SCALE
Turner also argues that the search could not have been incident to his arrest for possession of narcotics because there was no probable cause to arrest him before the search. We agree. A search cannot be justified as being incident to an arrest if probable cause for the contemporaneous arrest was provided by the fruits of that search. Smith v Ohio , 494 U.S. 541, 543, 110 S Ct 1288, 108 L Ed 2d 464 (1990). The prosecution argued in the trial court that Turner was arrested because he committed a felony in the officers’ presence—i.e., possession of cocaine and heroin. But, absent the unconstitutional search, the officers did not have probable cause to arrest Turner for drug possession. Given that the officers did not have probable cause to arrest Turner, they would not have been justified in conducting a search incident to a lawful arrest.
IV. CONCLUSION
The officers’ search of Turner exceeded the scope of Terry and was unconstitutional. Further, because the officers did not have probable cause to arrest Turner, the search could not be justified as incident to an arrest. The exclusionary rule precludes admission of evidence obtained during an unconstitutional search. People v Hawkins , 468 Mich. 488, 498-499, 668 N.W.2d 602 (2003). Accordingly, the trial court erred by denying Turner's motion to suppress the evidence obtained as a result of the search.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Shapiro, J., concurred with Patel, J.
Markey, P.J. (dissenting).
I respectfully dissent. Defendant was bound over for trial on one count of possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv ), and one count of possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv ). Defendant moved to suppress evidence that the police had seized upon a search of his person and vehicle. After the trial court denied the motion, defendant filed an application for leave to appeal in this Court, which was denied. People v Turner , unpublished order of the Court of Appeals, entered August 18, 2021 (Docket No. 357699). Defendant then sought leave to appeal in the Michigan Supreme Court. In lieu of granting the application, our Supreme Court remanded the case to this Court for consideration as on leave granted. People v Turner , 509 Mich. 854, 969 N.W.2d 64 (2022). I would conclude that the evidence at issue is admissible and that the trial court did not err by denying the motion to suppress. Accordingly, I would affirm.
I. BACKGROUND
This case arises from a traffic stop during which police discovered drugs and drug paraphernalia in defendant's possession. At the evidentiary hearing on the motion to suppress, Deputy Kevin Myers testified that an unnamed man approached him and his partner, Detective Hedrick, and told them that he saw a person named "Michael Sullivan" brandish a black pistol. According to the anonymous informant (AI), Sullivan had displayed the gun while occupying a newer, gray Jeep Grand Cherokee. The AI described Sullivan as a black male with long dreadlocks and estimated that he was in his 30s. The AI also informed Deputy Myers and Detective Hedrick that Sullivan could be found driving around the south side of Pontiac. Deputy Myers and Detective Hedrick searched for Sullivan on the Law Enforcement Information Network (LEIN). According to Deputy Myers, the LEIN inquiry confirmed the AI's description of Sullivan and showed that Sullivan had a suspended driver's license and a warrant out for his arrest related to a traffic offense.
Detective Hedrick's first name does not appear in the lower court record.
Deputy Myers clarified that the AI was not a confidential informant.
After performing the LEIN search, Deputy Myers and Detective Hedrick went on patrol on the south side of Pontiac. Deputy Myers testified that "[a] very short time" later, he and Detective Hedrick spotted a newer, gray Jeep Grand Cherokee. To Deputy Myers, it appeared that the Jeep was being driven in excess of the speed limit. A traffic stop was performed. In his testimony, Deputy Myers first indicated that the Jeep was stopped to investigate whether the driver did, in fact, have a firearm in his possession. But, upon being asked whether the civil infraction had anything to do with the traffic stop, Deputy Myers testified that "the initial stop was for the infraction of us estimating him going over the speed limit." Deputy Myers later conceded that it was "more likely" that defendant's Jeep would have been stopped even absent the traffic offense. A camera located on the dashboard of the police cruiser captured what followed.
Deputy Myers stated that the posted speed limit was 25 miles per hour and that defendant "was driving at a high rate of speed." Radar was not used to clock the Jeep's speed.
Deputy Myers and Detective Hedrick walked up to defendant's stopped vehicle. Deputy Myers observed that the driver—defendant—was an African American male in his 30s with long dreadlocks, which fit the description of Sullivan given by the AI. Deputy Myers asked defendant if he had any identification. From the video footage, it is unclear how defendant responded. About six seconds after Deputy Myers's inquiry regarding defendant's identification, Deputy Myers requested that defendant step out of the Jeep. According to Deputy Myers, during this six-second interval, he observed defendant twice "reach[ ] down in between the center [console] and his right leg to where [Deputy Myers] couldn't see [defendant's] hand briefly." Deputy Myers testified that this was the reason that he asked defendant to step out of the Jeep. The deputy claimed that at the point that defendant was removed from his vehicle, his identity was unknown to the officers. Deputy Myers indicated that the Jeep was a rental vehicle.
While assisting defendant out of the Jeep, Deputy Myers started to handcuff defendant. Deputy Myers testified that he handcuffed defendant because he had noticed "a foreign object that didn't look right in the crotch area of [defendant's] sweatpants." The object "almost had like a point," and based on the information from the AI, Deputy Myers thought that the object could be the handle of a small caliber pistol or handgun. Detective Brian Wilson arrived on the scene as Deputy Myers was handcuffing defendant. Deputy Myers also noticed a bulge or lump in the area of one of defendant's sweatpants’ pockets. Both bulges were suspicious to the deputy, who feared that they could be weapons. After Deputy Myers had defendant out of the Jeep and handcuffed, the deputy started patting down or frisking defendant's sweatpants in an attempt to identify the objects creating the bulges. Deputy Myers then reached into the left pocket of defendant's sweatpants and pulled out a stack or roll of cash from the pocket, which had created a bulge. Deputy Myers continued to pat down or frisk defendant in an effort to identify the pointy foreign object creating the bulge in the crotch area of the sweatpants. He testified that he reached into defendant's sweatpants where the bulge was located and felt "some type of hard plastic...." Deputy Myers then grabbed and removed the object, which turned out to be a black digital scale. The scale had what appeared to be cocaine residue on it. The officers then continued searching defendant's person. Shortly thereafter, a clear plastic bag fell out of the leg of defendant's sweatpants. The bag contained substances that later tested positive for cocaine and heroin.
Defendant moved to suppress all the evidence seized during the traffic stop, arguing that Deputy Myers and Detective Hedrick did not have reasonable suspicion to conduct the traffic stop and did not have probable cause to arrest defendant. They lacked reasonable suspicion or probable cause, defendant reasoned, because the AI's tip bore no adequate indicia of reliability regarding the contention that a pistol had been brandished. At the evidentiary hearing on the motion to suppress, defense counsel, during summation, began to argue that the information provided by the AI did not give the police justification to stop defendant's Jeep. He then, however, effectively backtracked, stating that "it may give them justification to stop the vehicle, [but] it doesn't give them the justification then to handcuff him and go into his pockets which is what the officer did in this case."
The trial court denied defendant's motion in a written opinion and order. The trial court concluded that the traffic stop and subsequent search were constitutional under Terry v Ohio , 392 U.S. 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968). The trial court reasoned that Deputy Myers and Detective Hedrick had reasonable suspicion to conduct a traffic stop because (1) Deputy Myers observed defendant driving over the speed limit and (2) Deputy Myers spotted a gray Jeep Grand Cherokee in the same area that the AI said such a vehicle would be located. The trial court did state that the "traffic stop was reasonable" on the basis that defendant was speeding. The trial court explained that once defendant was stopped, Deputy Myers had the authority to perform a limited pat-down search of defendant because the deputy had witnessed defendant making furtive movements in the vehicle, observed what appeared to be a gun in defendant's sweatpants, and had believed that defendant matched the AI's description of Sullivan. This interlocutory appeal followed.
II. ANALYSIS
A. STANDARD OF REVIEW
A trial court's findings at a suppression hearing are reviewed for clear error. People v Williams , 472 Mich. 308, 313, 696 N.W.2d 636 (2005). Clear error occurs when the reviewing court is definitely and firmly convinced that the trial court made a mistake. People v Johnson , 502 Mich. 541, 565, 918 N.W.2d 676 (2018). "But the application of constitutional standards regarding searches and seizures to essentially uncontested facts is entitled to less deference; for this reason, we review de novo the trial court's ultimate ruling on the motion to suppress." Williams , 472 Mich. at 313, 696 N.W.2d 636. This Court reviews de novo whether the Fourth Amendment of the United States Constitution was violated by the police and whether the exclusionary rule is applicable. People v Anthony , 327 Mich App 24, 32, 932 N.W.2d 202 (2019). B. GENERAL CONSTITUTIONAL PRINCIPLES
There is no indication in the transcript of the suppression hearing or in the trial court's written ruling that the court took into consideration testimony elicited at the preliminary examination, nor that the court made any determination that preliminary-examination testimony would be considered for purposes of its ruling. See MCR 6.110(D)(2) ; People v Kaufman , 457 Mich. 266, 275-276, 577 N.W.2d 466 (1998).
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const., Am. IV. "The Fourth Amendment of the United States Constitution—like Article 1, § 11 of the 1963 Michigan Constitution, [ ] whose protections have been construed as coextensive with its federal counterpart—protects against unreasonable searches and seizures." People v Mead , 503 Mich. 205, 212, 931 N.W.2d 557 (2019) (citation omitted). Under the Fourth Amendment, searches conducted without a warrant are per se unreasonable, subject only to a few specifically established and well-delineated exceptions, including automobile searches and seizures and stop-and-frisk detentions and searches. People v Davis , 442 Mich. 1, 10, 497 N.W.2d 910 (1993). The touchstone of any Fourth Amendment analysis is reasonableness, and reasonableness is measured by examination of the totality of the circumstances. Williams , 472 Mich. at 314, 696 N.W.2d 636.
Const. 1963, art. 1, § 11, provides, in part:
The person, houses, papers, possessions, electronic data, and electronic communications of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things or to access electronic data or electronic communications shall issue without describing them, nor without probable cause, supported by oath or affirmation.
In People v Jenkins , 472 Mich. 26, 32, 691 N.W.2d 759 (2005), our Supreme Court discussed Terry stops, explaining:
Under certain circumstances, a police officer may approach and temporarily detain a person for the purpose of investigating possible criminal behavior even though there is no probable cause to support an arrest. A brief detention does not violate the Fourth Amendment if the officer has a reasonably articulable suspicion that criminal activity is afoot. Whether an officer has a reasonable suspicion to make such an investigatory stop is determined case by case, on the basis of an analysis of the totality of the facts and circumstances. A determination regarding whether a reasonable suspicion exists must be based on commonsense judgments and inferences about human behavior. [Citations and quotation marks omitted.]
Reasonable suspicion requires something more than an inchoate or unparticularized hunch or suspicion, but the level of suspicion is less than that needed to establish probable cause. People v Champion , 452 Mich. 92, 98, 549 N.W.2d 849 (1996). The Champion Court further elaborated:
A valid investigatory stop must be justified at its inception and must be reasonably related in scope to the circumstances that justified interference by the police with a person's security. Justification must be based on an objective manifestation that the person stopped was or was about to be engaged in criminal activity as judged by those versed in the field of law enforcement when viewed under the totality of the circumstances. The detaining officer must have had a particularized and objective basis for the suspicion of criminal activity.
An officer who makes a valid investigatory stop may perform a limited patdown search for weapons if the officer has reasonable suspicion that the individual
stopped for questioning is armed and thus poses a danger to the officer. Terry strictly limits the permissible scope of a patdown search to that reasonably designed to discover guns, knives, clubs, or other hidden instruments that could be used to assault an officer. [ Id. at 98-99, 549 N.W.2d 849.]
C. DISCUSSION
I will analyze this case in chronological order as events developed at the time of the traffic stop, pausing at pertinent stages to address legal arguments posed by defendant. First, with respect to the officers’ actions in making the traffic stop, defendant states in his brief on appeal that "in the lower court here, [defendant] made no complaint about the stop of his vehicle." Defendant then moves on with his appellate argument; however, he later appears to return to the matter when he discusses the decision by the United States Supreme Court in Florida v. J.L. , 529 U.S. 266, 268, 120 S Ct 1375, 146 L Ed 2d 254 (2000), wherein the Court held that an anonymous tip that a person was carrying a gun was, without more, insufficient to justify a police officer's Terry stop and frisk of the identified individual. Defendant, after examining JL in detail, then appears to implicitly argue in vague, cursory fashion that there was no justification for the traffic stop in this case. This argument is not adequately briefed. See Mudge v Macomb Co , 458 Mich. 87, 104-105, 580 N.W.2d 845 (1998). An argument can also be made that the issue was waived when defendant, at the suppression hearing, indicated that the AI's information may have given the police justification to stop defendant's Jeep. See People v Carter , 462 Mich. 206, 215, 612 N.W.2d 144 (2000) (explaining that waiver is the intentional relinquishment or abandonment of a known right). Regardless, defendant makes no argument whatsoever that stopping his vehicle for an alleged civil infraction, i.e., speeding, was improper. Even though a traffic stop would likely have occurred regardless of the traffic violation, Deputy Myers did testify that defendant was stopped because he was speeding, and the trial court did rule that the alleged civil infraction justified the stop. "When an appellant fails to dispute the basis of a lower court's ruling, we need not even consider granting the relief being sought by the appellant." Denhof v Challa , 311 Mich App 499, 521, 876 N.W.2d 266 (2015). Therefore, I will proceed with my analysis on the basis that the traffic stop was proper. Next, Deputy Myers asked defendant if he had any identification. Defendant does not challenge this conduct or inquiry by Deputy Myers. The deputy then asked defendant to exit the Jeep because the deputy had observed defendant twice making furtive movements inside the vehicle. Again, defendant does not challenge the decision by Deputy Myers to essentially order defendant to step out of the Jeep. Indeed, defendant acknowledges that it was an appropriate request. And I note that there is nothing unconstitutional about an officer's asking a driver who has been the subject of a proper traffic stop to produce identification and to temporarily exit their car, even without furtive gestures. See Pennsylvania v Mimms , 434 U.S. 106, 110-111, 98 S Ct 330, 54 L Ed 2d 331 (1977).
The Supreme Court observed that, unlike tips from known informants whose reputation can be assessed, an anonymous tip seldom demonstrates the informant's veracity or basis of knowledge. J.L. , 529 U.S. at 270, 120 S.Ct. 1375.
A traffic stop is generally not unlawful and does not violate the Fourth Amendment if the officer conducting the stop has probable cause or a reasonable and articulable suspicion to believe that a violation of the Motor Vehicle Code had been committed or was occurring. People v Davis , 250 Mich App 357, 363, 649 N.W.2d 94 (2002) ; People v Williams , 236 Mich App 610, 612, 601 N.W.2d 138 (1999).
Deputy Myers immediately handcuffed defendant as the deputy assisted defendant out of the Jeep. Defendant claims that this action constituted an arrest which was not supported by the required demonstration of probable cause. Defendant asserts that reasonable suspicion does not suffice to make an arrest. In People v Green , 260 Mich App 392, 397-398, 677 N.W.2d 363 (2004), overruled in part on other grounds by People v Anstey , 476 Mich. 436, 447 n 9, 719 N.W.2d 579 (2006), this Court observed:
Defendant's argument is premised on the faulty claim that he was under arrest as soon as the officers approached him and tried to handcuff him. In this case, the officers’ initial contact with defendant was for the purpose of attempting to investigate the complaint made by Ford security. The contact was proper because the police were acting upon a complaint of possible criminal conduct and were trying to determine whether a crime was committed or whether defendant was in need of assistance. In addition to the initial contact being within the proper authority of the police, the police conduct in trying to secure
defendant during the investigation was also proper and was not an unreasonable seizure under the Fourth Amendment. A defendant's restraint is not necessarily an arrest. In People v Zuccarini , 172 Mich App 11, 14, 431 N.W.2d 446 (1988), the defendant was handcuffed during the execution of a search warrant. The officer who handcuffed him indicated that the restraint was mainly for the purpose of safety. This Court determined that the handcuffing was a reasonable, limited intrusion on the defendant's liberty under circumstances where violence could arise and the risk of harm to the police and others needed to be minimized. Id . In People v Sangster , 123 Mich App 101, 104, 333 N.W.2d 180 (1983), this Court agreed that protective measures, such as an officer drawing his weapon, do not transform a stop into an arrest. [Citation omitted.]
In this case, taking into consideration (1) defendant's furtive movements while still inside the Jeep, (2) the information gleaned from the AI that a person fitting defendant's description driving around the south side of Pontiac in a gray Jeep Grand Cherokee had brandished a gun, and (3) Deputy Myers's observation of what appeared to be a pointy foreign object in defendant's sweatpants that the deputy suspected could be a handgun, along with a second unidentified bulge in the sweatpants, I conclude that Deputy Myers had good reason to handcuff defendant, not to effectuate an arrest, but to maximize the safety of all and to minimize the risk to the officers.
I decline to address the prosecution's argument that because the police had probable cause to arrest Sullivan on the basis of Sullivan's suspended driver's license and the warrant for his arrest, and because the police were under the mistaken belief that defendant was Sullivan when he was handcuffed, the "arrest" of defendant could not amount to a constitutional violation.
Defendant argues that anonymous sources of information cannot establish probable cause to arrest or search. First, defendant was handcuffed to protect the police officers; this did not require probable cause. And he was not arrested then or at any point for anything related to the AI's information. The AI said nothing about illegal narcotics. Additionally, defendant was placed in handcuffs primarily because of the bulges in his sweatpants which were observed after he engaged in furtive movements in the Jeep. Those facts supported handcuffing defendant even without considering the information the AI provided.
Immediately after defendant was handcuffed, Deputy Myers proceeded to pat down or frisk defendant around the crotch and pocket areas of his sweatpants in light of the two bulges, one of which the deputy described as being a pointy foreign object. Deputy Myers then reached into a pocket where a bulge was present and retrieved the roll of cash. He next felt "some type of hard plastic" upon reaching into defendant's sweatpants in his effort to identify the object creating the second bulge. The object turned out to be a digital scale that appeared to be caked with cocaine residue. Deputy Myers seized the scale. On appeal, defendant concedes that Deputy Myers "had the authority, if his testimony is to be believed, to pat-down [defendant's] outer clothing." Defendant complains, however, that Deputy Myers never articulated a belief that the "hard plastic" was a handgun, as was necessary for the deputy to actually reach into defendant's pants and pull out the concealed object. Defendant discusses and distinguishes the Mimms opinion issued by the United States Supreme Court. In Mimms , 434 U.S. at 107, 98 S.Ct. 330, a police officer stopped a vehicle with an expired license plate with the intent to issue a traffic summons. Although the officer had no reason to suspect the driver of "foul play" and there was nothing unusual or suspicious about his behavior, id. at 109, 98 S Ct 330, the officer ordered him to exit the vehicle and produce his owner's card and operator's license, id. at 107, 98 S Ct 330. The driver alighted from the vehicle, and the officer noticed "a large bulge" under the driver's sports jacket. Id. The officer frisked him and discovered a loaded revolver in his waistband. Id. After resolving some other issues, the Supreme Court ruled:
I note that deference is given to a trial court's assessment of the credibility of witnesses at an evidentiary suppression hearing. People v Ryan , 295 Mich App 388, 396, 819 N.W.2d 55 (2012).
There remains the second question of the propriety of the search once the bulge in the jacket was observed. We have as little doubt on this point as on the first; the answer is controlled by Terry .... In that case we thought the officer justified in conducting a limited search for weapons once he had reasonably concluded that the person whom he had legitimately stopped might be armed and presently dangerous. Under the standard enunciated in that case—whether the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate—there is little question the officer was justified. The bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of "reasonable caution" would likely have conducted the "pat down." [ Id. at 111-112, 98 S Ct 330 (citation and quotation marks omitted).]
In the instant case, Deputy Myers observed a pointy bulge in defendant's sweatpants. I conclude, and defendant concedes, that there was nothing unconstitutional about Deputy Myers's conduct in frisking or patting defendant's sweatpants. Although not entirely clear, defendant also appears to acknowledge, and I would agree, that there was nothing unconstitutional about Deputy Myers's reaching into defendant's sweatpants and touching the object that to the deputy felt like hard plastic. Defendant's argument is that Deputy Myers failed to voice a belief, upon having touched the object, that it could be a gun or a weapon and that the deputy was thus not free to look inside defendant's sweatpants and seize the scale. While on the stand, Deputy Myers specifically articulated:
The object it almost had like a point, like again my thought process being the information we were given, ‘cause I thought it was a small caliber pistol like the handle of it, or the like the butt of the pistol itself or handgun.
Deputy Myers apparently came to this conclusion before actually touching the object, but nothing in his testimony indicated that his fears were alleviated when he touched "some type of hard plastic," such that he could discern that it was not a weapon and should remain in place in the crotch of defendant's sweatpants. I would hold that there was nothing unconstitutional about Deputy Myers's conduct in viewing and seizing the object in defendant's sweatpants, i.e., the scale caked with what appeared to be cocaine residue, at which point there existed probable cause to effectuate defendant's arrest and continue the search. The baggie filled with cocaine and heroin then fell out of defendant's sweatpants, further cementing probable cause to arrest defendant and search his vehicle.
I note that my view is not changed by the fact that part of the reason Deputy Myers believed the object might be a gun was because of the AI's information. Assuming that J.L. , 529 U.S. 266, 120 S.Ct. 1375, governs this case and that the AI's information could not be used to establish reasonable suspicion to make the traffic stop and to frisk defendant, the traffic stop was nevertheless justified by the alleged speeding infraction, and the frisk for weapons was nonetheless justified by defendant's furtive movements in the Jeep and the bulges in his sweatpants. See Mimms , 434 Mich at 111-112, 98 S.Ct. 330. This is not at all a situation in which the AI's information served as the sole or primary basis to frisk defendant and to reach into his sweatpants and retrieve the object.
The majority concludes that viewing and seizing the scale in defendant's sweatpants was unconstitutional, reasoning as follows:
[Deputy] Myers did not testify that he thought the hard plastic was a gun or other type of weapon after he felt it. He simply did not know what it was. He was only able to identify the object after he pulled open the waistband of Turner's pants and looked inside his underwear.
... We conclude that, under the totality of the circumstances, [Deputy] Myers did not have probable cause to believe that either of the objects that he felt were weapons. [Deputy] Myers's general exploration of the interior of Turner's pants exceeded the scope of the Terry patdown. [Emphasis added.]
Although defendant himself makes no mention of the plain-feel exception to the warrant requirement, the majority relies on the exception to resolve this case. Under the plain-feel exception adopted by the United States Supreme Court in Minnesota v Dickerson , 508 U.S. 366, 113 S Ct 2130, 124 L Ed 2d 334 (1993), the police are allowed to make a warrantless seizure of an object felt during a legitimate pat-down search for weapons when the identity of the object is immediately apparent and the officer has probable cause to believe that the object is contraband. People v Custer , 465 Mich. 319, 331, 630 N.W.2d 870 (2001) (opinion by MARKMAN , J.); Champion , 452 Mich. at 100-101, 549 N.W.2d 849. "Specifically, an object felt during an authorized patdown search may be seized without a warrant if the item's incriminating character is immediately apparent, i.e., if the officer develops probable cause to believe that the item felt is contraband before going beyond the legitimate scope of the patdown search." Champion , 452 Mich. at 105, 549 N.W.2d 849. In Dickerson , 508 U.S. at 371, 113 S.Ct. 2130, the Court "resolve[d] a conflict among the state and federal courts over whether contraband detected through the sense of touch during a patdown search may be admitted into evidence." (Emphasis added.) The Court noted that the issue "presented ... is whether police officers may seize nonthreatening contraband detected during a protective patdown search of the sort permitted by Terry ." Id. at 373, 113 S Ct 2130 (emphasis added).
The Dickerson Court explained:
If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context. [ Dickerson , 508 U.S. at 375-376, 113 S.Ct. 2130.]
I do not believe that the plain-feel exception to the warrant requirement was implicated in this case under the circumstances that developed after the traffic stop. The majority's ruling ignores Deputy Myers's visual observation of a bulge that reflected the presence of a pointy foreign object in defendant's sweatpants, which the deputy reasonably believed was a weapon. In this sense, the case is no different than Mimms , which addressed "the propriety of [a] search once the bulge in the jacket was observed. " Mimms , 434 U.S. at 111, 98 S.Ct. 330 (emphasis added). Again, the Mimms Court held that "[t]he bulge in the jacket permitted the officer to conclude that [the defendant] was armed and thus posed a serious and present danger to the safety of the officer." Id. at 112, 98 S Ct 330. In this case, it was not a "sense of touch" that led to safety concerns by Deputy Myers; it was his observation of the pointy foreign object concealed by defendant's sweatpants. Moreover, Deputy Myers was still in the process of assessing whether he was confronting a threatening or nonthreatening object when he peered into defendant's sweatpants and seized the scale. Stated otherwise, he was acting within "the legitimate scope of the patdown search," Champion , 452 Mich. at 105, 549 N.W.2d 849, for purposes of determining whether defendant was indeed armed with a weapon. The fact that Deputy Myers, after observing the pointy bulge, felt "some type of hard plastic" did not suggest that a threat was nonexistent, and even though the deputy did not specifically state that he still remained concerned about a weapon, it is clear from his testimony that identifying the pointy object was imperative to ruling out the presence of a weapon. Under the majority's analysis, had Deputy Myers not touched or felt the scale and instead immediately reached in and grabbed it in order to identify the foreign object for safety purposes, the majority, ostensibly, would have found no constitutional violation. Touching the unknown hard object should not change the analysis.
The plain-feel exception to the warrant requirement focuses on whether an officer's touch immediately indicated contraband or not, but the majority is using the exception in a manner that negates an officer's effort to determine whether an initial plainly observed bulge is a weapon, which, in my view, is inconsistent with the dictates of Mimms.
In sum, I conclude that the trial court did not err by denying defendant's motion to suppress the evidence seized by the police. Accordingly, I dissent.