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 UNPUBLISHED Oakland Circuit Court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. PER CURIAM.
Defendant, Mark Griggs, was charged with one count of carrying a concealed weapon, MCL 750.227. The charge arose from a search of Griggs's backpack on June 27, 2018, during which a police officer found a loaded .380 handgun. Griggs moved to suppress the gun from evidence, and, following an evidentiary hearing, the court granted his motion and dismissed the charge against him with prejudice. Because Griggs consented to the search of his backpack, the trial court erred by suppressing the gun and dismissing the charge against Griggs.
I. BASIC FACTS
On June 27, 2018, a police officer with the Farmington Hills Police Department observed Griggs walking through the parking lot of a strip mall. It was approximately 1:30 a.m. The officer, who was in a marked police vehicle, testified that he changed directions so he could "turn back around to see where" Griggs was going. He located Griggs walking in the eastbound lane on 9 Mile Road, despite the fact that there was a sidewalk available. The officer noted that because it was dark and Griggs was wearing dark clothing, it was difficult to see him walking in the road. The officer stated that he approached Griggs because he did not "want him to get hit by a car," and because he wanted to see if Griggs was okay and to know what was going on. After turning on the overhead light on his police vehicle, the officer approached Griggs on foot. At the time, Griggs was also wearing a dark-colored backpack.
The officer recounted suggesting to Griggs that it was probably not a good idea to walk in the roadway at night while wearing all dark clothing because he could be hit by a car. He also asked where Griggs was coming from. Griggs responded, vaguely, that he had been employed by a steel company, but he had been discharged and was now trying to catch a bus so he could return to his home in Detroit. Griggs sounded unsure of the name of the company and of the city where the company was located.
The officer also testified that it is a civil infraction to walk in the roadway when a sidewalk was provided, but he stated that when he approached Griggs he did not have an intention of writing him a ticket for walking in the roadway.
There was a bus stop nearby, but there were no busses running at that time.
A few more officers arrived, and at one point, the officer asked Griggs if he had anything on him and asked if he could search him. In response, Griggs removed his backpack, opened it up, and tried to take items out to show to the officer. He did not verbally consent to a search at that point. The officer, concerned about his own safety, repeatedly directed Griggs to place the backpack on the ground. Griggs eventually complied. The officer again asked if he could search Griggs. Griggs ultimately responded, "sure." After searching Griggs's person, the officer searched through the backpack and discovered a loaded .380 handgun.
Following an evidentiary hearing, the trial court found that although Griggs consented to the officer searching him, he did not consent to the officer searching his backpack. The search, therefore, violated his Fourth Amendment Rights and, accordingly, the court suppressed the gun and dismissed the case with prejudice.
II. SUPPRESSION OF EVIDENCE
A. STANDARD OF REVIEW
The prosecution argues that the trial court erred by suppressing the gun the officer found in Griggs's backpack. "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 Anthony, 327 Mich App 24, 31; 932 NW2d 202 (2019) (quotation marks and citation omitted). Findings of fact are clearly erroneous when, after a review of the whole record, the reviewing court is "left with a definite and firm conviction that a mistake has been made." Id. (quotation marks and citation omitted). " 'We review de novo whether the Fourth Amendment was violated and whether an exclusionary rule applies.' " Id. (citation omitted).
B. ANALYSIS
The prosecution argues that the initial stop was justified. The trial court, however, did not find that the officer violated Griggs's constitutional right by stopping him. Moreover, on appeal, Griggs does not dispute the validity of the initial stop. Nevertheless, the prosecution directs this Court to MCL 257.655, which provides that it is a civil infraction to walk in the roadway in areas where there is a sidewalk available. Here, the undisputed evidence showed that Griggs was walking in the roadway despite there being a sidewalk available. Given that there appears to be a violation of the statute, we discern no constitutional error in the officer's initial stop of Griggs.
Next, the prosecution argues that the court erred by finding that Griggs's constitutional rights were violated by the search of his backpack. "The basic rule is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.' " People v Earl, 297 Mich App 104, 107; 822 NW2d 271 (2012), aff d 495 Mich 33 (2014), quoting Arizona v Gant, 556 US 332, 338; 129 S Ct 1710; 173 L Ed 2d 485 (2009). One of these established exceptions to the general warrant requirement is the consent exception, which applies to searches conducted when the person being searched has provided consent that is "unequivocal, specific, and freely and intelligently given." People v Mahdi, 317 Mich App 446, 462; 894 NW2d 732 (2016). As our Supreme Court recently explained:
The Fourth Amendment proscribes only unreasonable searches. And searches based on consent are often reasonable: it is no doubt reasonable for the police to conduct a search once they have been permitted to do so. Unless a defendant can identify a flaw in the grant of consent that renders the search unreasonable, consensual searches are 'wholly valid." [People v Mead, 503 Mich 205, 215; 931 NW2d 557 (2019) (quotation marks and citation omitted).]"There are three ways a court may find that a consent search was unreasonable: consent wasn't voluntary, the consent-giver lacked authority, or the scope of the search exceeded the consent." Id. at 216. The scope of the consent is analyzed by an objective, reasonableness standard, that considers what "the typical reasonable person [would] have understood by the exchange between the officer and the suspect." Mahdi, 317 Mich App at 461.
In this case, using an objective, reasonableness standard, the typical reasonable person would have understood the exchange between the officer and Griggs to include unrestricted consent to search both his person and his backpack. By opening the backpack and showing the officer the items inside it, Griggs objectively indicated that it was okay for the officer to search the bag. Rather than restricting or withdrawing that consent, when he was again asked to consent to a search, he said, "sure." See People v Dagwan, 269 Mich App 338, 340-341, 345; 711 NW2d 386 (2005) (determining that the scope of a defendant's consent to search a vehicle included searching a computer in the vehicle when the consent was broad and general and when the consent given was never restricted or revoked).
We acknowledge that, when asking for consent to search Griggs, the officer never expressly asked to search Griggs's backpack. That fact, however, is not dispositive. Permission to search a person can extend to searches of bags, purses, and backpacks belonging to that person. For example, in United States v Graham, 638 F2d 1111, 1112 (CA 7, 1981), the Seventh Circuit Court held that a bag carried by the defendant was within the scope of a search of the defendant's person. Id. The court reasoned:
a shoulder purse carried by a person at the time he is stopped lies within the scope of a warrant authorizing the search of his person. The human anatomy does not naturally contain external pockets, pouches, or other places in which personal objects can be conveniently carried. To remedy this anatomical deficiency clothing contains pockets. In addition, many individuals carry purses or shoulder bags to hold objects they wish to have with them. Containers such as these, while appended to the body, are so closely associated with the person that they are identified with and included within the concept of one's person. To hold differently would be to narrow the scope of a search of one's person to a point at which it would have little meaning. We decline to do so. [Id. at 1114.]In addition, in Edwards v Commonwealth, 38 Va App 823; 568 SE2d 454 (2002), the reviewing court 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. Id. at 829. The court reasoned:
the scope of consent to search one's person encompasses [a bag held by the defendant]. 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. [Id.]The court in Edwards concluded that the trial court's determination that the officer understood the defendant's consent to include the bag he carried was reasonable. Id.
* * *
To the extent that [the defendant] thereafter made the scope of his consent less clear by placing the bag on the bed before the officer began the pat-down, his passive acquiescence while the officer searched the bag affirmed that the bag was within the scope of his consent. [Id. at 830.]
"Caselaw from sister state courts may be considered for its persuasive value." People v Cameron, 319 Mich App 215, 227 n 6; 900 NW2d 658 (2017). --------
Like the Court in Edwards and the Court in Graham, we conclude that the scope of consent to search a person can extend to a bag, or backpack, held by that person. Thus, even if Griggs's backpack was a personal effect, a reasonable person observing the encounter would still have believed that he had consented to the search of his backpack. Again, the scope of the consent given is analyzed by an objective, reasonableness standard, that considers what "the typical reasonable person [would] have understood by the exchange between the officer and the suspect." Mahdi, 317 Mich App at 461. Here, regardless of whether the backpack is classified as a personal effect, when Griggs unzipped it and took things out of it in response to the officer's request to search Griggs's person, a reasonable person would have understood that Griggs was consenting to its search of his person and his backpack.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Stephen L. Borrello