Opinion
No. 347575
04-30-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. MARK VERNARD GRIGGS, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2018-268051-FH Before: M. J. KELLY, P.J., and FORT HOOD and BORRELLO, JJ. FORT HOOD, J. (dissenting).
Because I disagree that the trial court clearly erred when it determined that defendant did not unequivocally, specifically, and freely and intelligently consent to the search of his backpack, I respectfully dissent.
As the majority notes,
"We review for clear error a trial court's findings of fact in a suppression hearing, but we review de novo its ultimate decision on a motion to suppress." People v Hyde, 285 Mich App 428, 436, 775 NW2d 833 (2009). "A finding of fact is clearly erroneous if, after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made." People v Everard, 225 Mich App 455, 458, 571 NW2d 536 (1997). "We review de novo whether the Fourth Amendment was violated and whether an exclusionary rule applies." Hyde, 285 Mich App at 436. [People v Anthony, 327 Mich App 24, 31-32; 932 NW2d 202, 208 (2019).]Consent is an exception to the warrant requirement that "permits a search and seizure if the consent is unequivocal, specific, and freely and intelligently given." People v Mahdi, 317 Mich App 446, 460; 894 NW2d 732 (2016), citing Lavigne v Forshee, 307 Mich App 530, 538; 861 NW2d 635 (2014). "When consent is alleged, the burden is on the prosecution to prove by clear and positive evidence that the consent was unequivocal and specific, freely and intelligently given." People v Roberts, 292 Mich App 492, 503; 808 NW2d 290, 299 (2011) (quotation marks and citation omitted). Whether consent to search is freely and voluntarily given, and the scope of that consent, are questions of fact that must be determined on the basis of the totality of the circumstances. Lavigne, 307 Mich App at 538; People v Dagwan, 269 Mich App 338, 342-343; 711 NW2d 386, 390 (2005). That is, the validity and scope of consent are factual determinations that we review for clear error, and we give deference to the trial court's resolution of conflicting evidence or testimony with respect to the same. See Dagwan, 269 Mich App at 342. See also People v Horan, unpublished per curiam opinion of the Court of Appeals, issued November 30, 2010 (Docket No. 292422), p 1. The standard for determining the scope of a consent to search is that of "objective reasonableness," or "what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Dagwan, 269 Mich App at 343 (quotation marks and citation omitted).
Under the circumstances, I discern no clear error from the trial court's determination that defendant did not consent to a search of his backpack. The prosecution contends that there are two potential points of consent in this case: (1) defendant's nonverbal consent to the search of his backpack, and (2) defendant's subsequent verbal consent to the search of his person, which necessarily included a consent to search his backpack. The majority opinion suggests that either of the above constituted consent to search defendant's backpack sufficient for Fourth Amendment purposes, but I disagree.
I. NONVERBAL CONSENT
First, the trial court determined that a reasonable person would not conclude that defendant's removal of his backpack and subsequent showing it to police constituted a consent to search that backpack. Rather, the trial court concluded that defendant was seeking specific items from the backpack to corroborate his statements concerning where he was coming from and why he was walking along the street so early in the morning. I see no clear error in this conclusion.
What I can glean from the testimony is that the reason defendant was stopped is that he was walking near the curb on the road rather than the sidewalk, which admittedly, is a civil infraction. However, the reason for defendant's stop quickly moved beyond that issue. The officer testified he was intrigued because he "didn't know if [defendant's car] was broke down, [if defendant] got into an accident, didn't know if [defendant] wanted to commit suicide, no idea." Upon my review of the record, however, defendant explained early into the encounter why he was at the location he was at: defendant was leaving from a temporary job at which he had learned he was no longer needed, and unfortunately, defendant learned that he was no longer needed too late in the night for him to catch the bus home. The arresting officer testified that he became suspicious because defendant did not seem to know where he was coming from, however, on my personal review of the videorecorded incident, although defendant seems nervous—a normal characteristic of many individuals when confronted by police—defendant stated that he was coming from his former employer, stated where he had been employed, stated the cross-streets of the employer, and offered to give the officer an exact address.
After defendant answered all of the questions relevant to the reason he was stopped, rather than cite defendant with a civil infraction or simply leave him to continue on his way on the sidewalk rather than the road, the officer began asking defendant whether he had anything on his person that he should not have. I would be remiss to ignore the fact that defendant was a young black man walking in a predominately white, affluent neighborhood at night when he was stopped by the police. And suffice it to say that, for a number of factors, defendant's anxiety during his police encounter feels palpable from the videorecording, and—without the benefit of hindsight—not entirely unreasonable. See Lavigne, 307 Mich App at 538 (with respect to consent, "the presence of coercion or duress will militate against a finding of voluntariness). In any event, at the moment that defendant was first asked whether he had anything on him that he should not, a backup police officer arrived pulling a flashlight from his pocket and shining it on defendant. Defendant appears to nervously and accidently drop an object on the ground while removing his backpack to show the accosting officer his work-related items. This is the action that the prosecution argued constituted an unequivocal, specific, and free and intelligent consent to be searched. Given the videorecording and subsequent conflicting testimony, I find that position untenable.
Sergeant Haro testified that he asked defendant whether he could search his person, and testified that defendant responded by showing Sergeant Haro the backpack as if to consent to a search of the same. Defendant testified, however, that he began removing items in response to being asked whether he had anything that he should not, and to corroborate his explanation for being on the street. According to defendant, he was not intending to consent to a search. Sergeant Haro's cross-examination can be read to corroborate that idea, as he testified that defendant was reaching into his backpack to show Sergeant Haro specific items, and that defendant exclaimed "I don't have anything" as he did so.
Far from being left with a definite and firm conviction that the trial court erred, I agree with the trial court that defendant's nonverbal action was not sufficient to constitute a consent to search his backpack, and I would not reverse the trial court on the basis that defendant consented to a search of his backpack by removing it and showing it to the officers. At the very least, I would put forth that there is conflicting testimony concerning the exact statement defendant was responding to when he removed his backpack, and the videorecording does not neatly resolve the factual issue. In light of those facts, I would defer to the judgment of the trial court to weigh the evidence. Dagwan, 269 Mich App at 342.
II. VERBAL CONSENT
Next, the trial court determined that defendant's subsequent verbal consent to a search of his person did not include a consent to search his backpack. The trial court emphasized the timing of the events that occurred in this case, noting that, in the trial court's opinion, defendant's backpack had been removed from his person and placed on the ground out of his control prior to defendant verbally consenting to the search. With the backpack out of defendant's reach, and with defendant having only consented to a search of his person, I again cannot discern clear error.
The majority relies upon Dagwan, 269 Mich App 338, United States v Graham, 638 F2d 1111 (CA 7, 1981), and Edwards v Commonweatlh, 38 Va App 823; 568 SE2d 454 (2002), for the contention that a consent to the search of defendant's person necessarily included a consent to the search of defendant's backpack. In Dagwan, this Court determined that a defendant's consent to the search of his vehicle necessarily included a consent to search containers inside that vehicle. Dagwan, 269 Mich App at 340, 344-345. The case involved an unequivocal consent to search the vehicle at issue. Id.
First, and again, I disagree that the trial court erred when it determined that the alleged nonverbal consent was constitutionally insufficient to allow for the search of defendant's backpack, and thus I do not believe the majority's notation that defendant failed to restrict or revoke that consent to be a relevant issue. Second, to the extent the majority would apply Dagwan to defendant's verbal consent, the majority does not explain how the consent to search a vehicle and the objects inside of that vehicle in Dagwan is comparable to this case, where defendant consented to a search of his person after his backpack was undisputedly outside of his reach. Id.
The majority relies on Graham for the contention that permission to search a person extends to searches of bags, purses, and backpacks belonging to that person. In that case, police officers had a warrant to search the defendant's person. Graham, 638 F2d at 1112. When officers confronted the defendant, the defendant happened to be wearing "a shoulder bag or purse," which the officers searched along with defendant's person. Id. The defendant challenged the search of his bag. Id. The court determined that the search was appropriate because (1) it was on the defendant's person at the moment he was accosted by police, and (2) because the search was supported by a warrant as opposed to an exception to the warrant requirement, which would have provided for a search more limited in scope. See id. ("In the case at bar, however, because the search of the defendant was duly authorized by a warrant . . . its scope was not so limited.").
It cannot be undervalued that, even in light of the broad scope of the warrant—something that does not exist in this case—the Graham court still stressed the relevance of the proximity of the bag to the defendant's person at the time the search was executed:
[T]he fact that the purse had been removed from defendant's person and was in the possession of the police officers is immaterial. The only relevant question is whether, at the time the warrant was executed, the purse could be properly considered part of the defendant's person which the officers were authorized to search. [Id. (emphasis added).]Again, there was no warrant in this case, and thus we cannot base our decision on where the backpack was in proximity to defendant at the time that a warrant was executed. Instead, we must base our decision on where the backpack was at the time defendant verbally consented to the search. I would argue that defendant's backpack was outside his reach, and not part of his person.
Again, I do not agree with the majority's conclusion that defendant consented to the search of his backpack nonverbally.
Perhaps the most similar case to the one at hand relied upon by the majority is Edwards, which, unlike Graham, involves a consent-based search. In that case, the Virginia Court of Appeals held that the scope of the defendant's consent to search his person included consent to search a bag that he was holding when he consented. Edwards, 38 Va App at 829. Importantly, unlike this case, the defendant in Edwards was holding the bag at issue at the time that he consented to a search of his person. In any event, it would seem that the majority seeks to adopt the Edwards court's comparison-based approach to determining the scope and validity of a consent. I must express my disagreement with that approach.
The Edwards court specifically noted that—like the use of Graham in this case—the caselaw relied upon in Edwards tended to involve warrant-based searches rather than consent-based searches. The court explained:
Although the cases we find persuasive on the issue before us were decided in the context of a search pursuant to a search warrant, and not pursuant to consent, we find nothing in the reasoning or the holdings of the courts deciding the issue that suggests the analogy is inapt. Indeed, the circumstances requiring a definition of "the person" in the context of conducting a search pursuant to a search warrant are comparable to those in which the police acted in this case. In both instances, the officers had to determine whether the scope of the permitted search—one permitted on the basis of a search warrant of "the person,"—the other pursuant to consent to search of "the person," included bags and other such items appended or otherwise closely associated with the individual. In both instances, the acting officer was presented with the need to determine whether the authority granted to search "the person" extended to such items. The different premises underlying the authority to search the person do not change the ultimate question to be resolved, to wit, the scope of the term, "the person." [Id. at 829-830.]I am not comfortable employing this logic in Michigan.
First, just as Graham noted the broader nature of warrant-based searches, in Michigan, we have consistently referred to exceptions to the warrant requirement as being narrow and specific. People v Moorman, ___ Mich App ___, ___; ___ NW 2d ___ (Docket No. 349282); slip op at 2, quoting People v Kazmierczak, 461 Mich 411, 418; 605 NW2d 667 (2000). See also People v Reed, 112 Mich App 693, 695; 317 NW2d 228 (1982) (explaining that exceptions to the warrant requirement are "narrowly and carefully drawn"), citing Coolidge v New Hampshire, 403 US 443, 454-455; 91 S Ct 2022; 29 L Ed 2d 564 (1971) and People v Whalen, 390 Mich 672, 677; 213 NW2d 116 (1973). Consent is an exception to the warrant requirement, Mahdi, 317 Mich App at 460, and I would not conclude that we should treat consent-based searches like warrant-based searches simply because the language used in asking for consent is comparable to what might be found in a warrant. Moreover, with respect to the civil liberties protected by the warrant requirement, I would think it problematic under the circumstances for us to put the onus on ordinary citizens to immediately understand the attenuated legal implications of "the person"—and specifically that "the person" encompasses objects outside their immediate control—when they consent to searches of their body under ordinarily tense and anxiety-ridden police interactions.
Second, and relatedly, even assuming for the sake of argument that exceptions to the warrant requirement are not intended to be narrowly drawn, I would still consider Edwards's comparison inapt because the requirements for obtaining a warrant versus a valid consent are nothing alike. Warrants for a search are issued when they are supported by probable cause, which "exists when there is a substantial basis for inferring a fair probability that contraband or evidence of a crime will be found in a particular place." People v Hellstrom, 264 Mich App 187, 192; 690 NW2d 293 (2004) (quotation marks and citation omitted). In order "to provide reasonable guidance to the officers executing the search," warrants "must particularly describe the place to be searched and the persons or things to be seized." Id. at 192-193. "Searches pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search." Id. at 196 (quotation marks and citation omitted). Contrarily a consent to search may only exist where an individual unequivocally, specifically, freely, and intelligently consents. People v Galloway, 259 Mich App 634, 648; 675 NW2d 883 (2003). "The validity of a consent depends on the totality of the circumstances," id., and the scope of that consent depends on a factual determination of what a typical, objectively reasonable person would have understood the consent to have encompassed, Dagwan, 269 Mich App at 343. Therefore, this case must be decided on the basis of what a reasonable person would have understood about defendant's consent given the totality of the circumstances; not what extrajurisdictional courts have concluded about what "person" necessarily encompasses when listed on a warrant.
Lastly, and again, I think it important to stress that, even if we employed the logic of Graham and Edwards, both of those cases involved defendants that were more closely associated with the bags at issue than the defendant in this case. In Graham, the defendant possessed the handbag that was searched at the time that the search warrant was executed, Graham, 638 F2d at 1112, and in Edwards, the defendant possessed the bag that was searched at the time that he consented to a search of his person, Edwards, 38 Va App at 829. In fact, in Edwards, the Virginia court specifically noted the importance of the fact that the bag at issue was "appended to," or "intimately connected with [the defendant's] person." Id. (quotation marks and citation omitted). In this case, defendant possessed the backpack in question at the time that he was accosted, but he no longer possessed the bag at the time that he verbally consented to a search of his person. Thus, it is not clear whether even the Edwards court would have found that defendant consented to the search of his backpack in this case, and again, it is my opinion that Graham is too factually distinct for even an educated guess as to how that court would have resolved this case.
III. CONCLUSION
To summarize, I would emphasize the fact that this case involves an exception to the warrant requirement that must be drawn narrowly. See Moorman, ___ Mich App at ___; slip op at 2. The trial court's duty was to determine whether—under the totality of the circumstances—defendant could be said to have unequivocally, specifically, freely, and intelligently consented to a search. See Mahdi, 317 Mich App at 460. With that in mind, I would not conclude that the trial court clearly erred when it weighed the evidence and determined that defendant's alleged nonverbal consent was not, in fact, a consent to search his backpack. The trial court was also required to consider the scope of defendant's verbal consent by examining what a typical, reasonable person would have understood defendant to have consented to. Dagwan, 269 Mich App at 343. Again, I cannot conclude that the trial court clearly erred when it determined that an objective individual would not have understood defendant to have verbally consented to a search of his backpack after it had been removed from his person and placed out of his reach. For all of the aforementioned reasons, I would affirm.
/s/ Karen M. Fort Hood