People v. Mathews

Full title: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. TREMELL C…

Court: Court of Appeals of Michigan

Date published: Sep 2, 2021

No. 348155 (Mich. Ct. App. Sep. 2, 2021)

Opinion

348155

09-02-2021

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. TREMELL C. MATHEWS, Defendant-Appellee.

Per Curiam.

UNPUBLISHED

Wayne Circuit Court LC No. 18-008966-01-FH

Before: Tukel, P.J., and Servitto and Beckering, JJ.

Per Curiam.

Plaintiff appeals as of right the trial court's order granting defendant's motion to suppress evidence and dismissing the charges of possession of a controlled substance less than 25 grams, MCL 333.7403(2)(a)(v), and possession of marihuana, MCL 333.7403(2)(d). We affirm.

FACTS

On September 20, 2108, Detroit Police Officer Michael Bailey was driving a patrol car, with Officers Yossif Mana and Antoine Hill as passengers, when he saw defendant run a red light in the city of Detroit. Officer Bailey initiated a traffic stop and, upon speaking to defendant, was told that defendant did not have a driver's license and that he did not have insurance for the vehicle he was driving. Officer Bailey had defendant step out of the vehicle and patted him down. He searched defendant a second time, finding several lottery tickets in defendant's pants pocket. Officer Bailey returned the tickets to defendant's pocket and then instructed defendant to stand in front of the patrol car's dashboard camera (dashcam). Defendant, who was not handcuffed or physically restrained in any way, complied, and Officer Hill stood near defendant at the patrol car. Officer Bailey then proceeded to search defendant's vehicle.

During his search, Officer Bailey found four folded lottery tickets that contained suspected heroin under the vehicle's headliner where it met the windshield. Officer Bailey then instructed Officer Mana to search defendant again. During his search of defendant, Officer Mana found a bag of marijuana and a bag of heroin in defendant's pockets. Officer Mana then handcuffed defendant and informed him that he was under arrest. Defendant was charged with possession of the substances found in his pockets.^{1 1}

1 An analysis of the substances found in defendant's vehicle was inconclusive as to the presence of narcotics and defendant was thus not charged with possession of the substances found in the vehicle.

1 See https://detroitmi.gov/sites/detroitmi.localhost/files/2019-04/TowingImpound%20Procedures%20Directive%20204.4.pdf.

A preliminary examination was held in this matter, after which defendant was bound over to the circuit court as charged. Thereafter, defendant filed a motion to suppress evidence and for dismissal. Defendant contended that after he exited his vehicle, his person was twice searched by Officer Bailey. Defendant was then directed to stand in front of Officer Bailey's patrol car, which he did. Defendant asserts that he was not told he was under arrest, nor was he placed in restraints to indicate that he was under arrest. Nevertheless, according to defendant, Officer Bailey began to conduct an invalid "inventory search" of his vehicle and allegedly recovered suspected heroin in the headliner of the vehicle. Defendant averred that Officer Mana then searched him a third time and that neither the third search of his person, nor the search of his vehicle was a search incident to arrest. Defendant further asserted that the search of his vehicle was made in violation of departmental procedure requirements to fill out an impound inventory card, was unconstitutional in that it was not a lawful inventory search, and that no probable cause existed to search his vehicle.^{2 2} The trial court granted defendant's motion, finding that the prosecution's failure to provide an automobile inventory card with respect to the vehicle search demonstrated the police officers' failure to comply with their own policy and that further, without evidence of an inventory card, the prosecution could not sustain its case against defendant.

2 The dissent erroneously states, on several occasions, that the sole basis advanced in support of suppression was the failure to produce an impound inventory card. Contrary to the dissent's repeated assertions otherwise, defendant also did not style his argument as seeking redress for discovery abuse.

2 The majority makes much of the fact that Officer Bailey's testimony was contradicted by that of Officer Yousif Manna, who testified that defendant was not under arrest at the time defendant was ordered out of the vehicle. As stated later in this opinion, I view the subjective views of both Officer Bailey and Officer Mana to be irrelevant to the legal question of whether defendant was under arrest for driving on a suspended license when ordered out of his vehicle, as the question of whether a defendant was under arrest is to be evaluated based on an objective view of the evidence and officers' subjective views are not relevant.

The prosecution now appeals the trial court's order, asserting that the search of defendant's vehicle was a valid inventory search and was conducted in accordance with departmental policy, such that the vehicle search and the third search of defendant's person were not unconstitutional searches. We disagree.

LAW

"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 N.W.2d 833 (2009). "Clear error occurs if the reviewing court is left with a definite and firm conviction that the trial court made a mistake." People v Johnson, 502 Mich. 541, 565; 918 N.W.2d 676 (2018) (quotation marks and citation omitted). "To the extent that a trial court's ruling on a motion to suppress involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo." People v Tanner, 496 Mich. 199, 206; 853 N.W.2d 653 (2014) (quotation marks and citation omitted). We also review de novo "whether the Fourth Amendment was violated and whether an exclusionary rule applies." People v Anthony, 327 Mich.App. 24, 32; 932 N.W.2d 202 (2019).

Both the Fourth Amendment of the United States Constitution and article 1, § 11 of the Michigan Constitution guarantee every person's right to be free from unreasonable searches and seizures. People v Slaughter, 489 Mich. 302, 310-11; 803 N.W.2d 171 (2011). To that end, a warrant supported by probable cause is generally required in order to deem a search reasonable. In re Forfeiture of $176, 598, 443 Mich. 261, 265; 505 N.W.2d 201 (1993). There are, however, several specifically established exceptions to the warrant requirement. Relevant to the instant matter, these include searches incident to contemporaneous lawful arrests and inventory searches conducted according to established procedure. Slaughter, 489 Mich. at 311.

The Supreme Court has held that immediately upon arrest, an officer may lawfully search the person of an arrestee and the area within the arrestee's immediate control without first procuring a warrant. Illinois v Lafayette, 462 U.S. 640, 644; 103 S.Ct. 2605; 77 L.Ed.2d 65 (1983). Known as a "search incident to arrest," such searches are permissible in order to "protect evidence in the possession of the arrestee and to protect the officer from danger posed by articles in the arrestee's possession." Id. at 644-645, quoting United States v Robinson, 414 U.S. 218, 235; 94 S.Ct. 467; 38 L.Ed.2d 427 (1973). The "search incident to arrest" exception to the warrant requirement further permits police to search a vehicle incident to an arrest: (1) when the arrestee is unsecured and within reaching distance of the vehicle's compartments, and (2) when police reasonably believe that evidence related to the crime of arrest may be found in the vehicle. Arizona v Gant, 556 U.S. 332, 343; 129 S.Ct. 1710; 173 L.Ed.2d 485 (2009). These two narrow circumstances best serve the interest of officer safety, which is the fundamental rationale of the "search incident to arrest" exception to the warrant requirement. Id. at 338, 347-348.

Under the inventory search exception, the police may conduct an inventory search of a vehicle, in accordance with its departmental regulations, that is being impounded following the driver's valid arrest. People v Toohey, 438 Mich. 265, 271-72; 475 N.W.2d 16 (1991). Such an inventory search "is considered to be an administrative function performed by the police, rather than part of a criminal investigation which the Fourth Amendment was intended to circumscribe." Id. "Inventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." Florida v Wells, 495 U.S. 1, 4; 110 S.Ct. 1632; 109 L.Ed.2d 1 (1990) (citations omitted). But "an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence." Id. Thus, "[t]he lack of an underlying motive or bad faith by the police in conducting an inventory search is an important aspect which courts must consider in determining the validity of such a search." Toohey, 438 Mich. at 276. "To be constitutional, an inventory search must be conducted in accordance with established departmental procedures, which all police officers are required to follow, and must not be used as a pretext for criminal investigation." Id. at 284 (emphasis in original).

Evaluation of the reasonableness of a search or seizure depends upon the facts and circumstances of each case. Id. at 272. "The benchmark for satisfaction of Fourth Amendment rights is reasonableness, and reasonableness requires a fact-specific inquiry that is measured by examining the totality of the circumstances." People v Corr, 287 Mich.App. 499, 507; 788 N.W.2d 860 (2010), quoting Hyde, 285 Mich.App. at 436.

It is uncontested that the police in this matter searched defendant's person and vehicle without a search warrant. There appears to be no claim of unconstitutionality with respect to the initial and secondary search of defendant's person by Officer Bailey. Officer Bailey initiated a traffic stop of defendant's vehicle when he purportedly saw defendant disregarding a red light. Officer Bailey's preliminary examination testimony and his body camera (bodycam) video played at preliminary examination establish that upon questioning, defendant readily admitted that he did not have a driver's license (a misdemeanor under MCL 257.904), that the vehicle was uninsured, and that he had marijuana on him (but had his medical marijuana card in his wallet). At that point, defendant was asked to step out of the vehicle, which he did, and Officer Bailey twice patted defendant down, finding nothing he deemed suspicious on defendant's person. Defendant does not appear to challenge these two searches. The searches that followed, however, present a different story. The issues for our resolution, then, are whether the third warrantless search of defendant's person and the warrantless search of his vehicle fell within an exception to the warrant requirement.

I. ARREST

Officer Bailey testified at the preliminary examination that when defendant was unable to produce a driver's license, he ordered defendant from the vehicle and "placed him in custody for operating without a driving license." Officer Bailey testified that defendant was under arrest when he exited the vehicle. Officer Bailey further testified that he thereafter began conducting an inventory search of defendant's vehicle because the vehicle was going to be impounded. Officer Bailey's bodycam footage played at the preliminary examination and Officer Mana's preliminary examination testimony undermine these assertions.

Before delving into that evidence, we note that it is not clear from the record that the entirety of Officer Bailey's bodycam footage from this incident was played for the district court or admitted into the preliminary examination record. At the beginning of the preliminary examination, defense counsel asked to have "the body cams" admitted into the record. The prosecutor stated that it would not have a problem with the admission of bodycam footage where the bodycam footage corresponding to a particular witness was played while that specific witness was testifying. The court stated it would address the issue at a later time, but did not do so. Nevertheless, is clear from the record that portions of Officer Bailey's bodycam footage, portions of Officer Mana's bodycam footage, and portions of the patrol car dashcam footage were played during the preliminary examination while these two officers testified.

Reviewing the portions of Officer Bailey's bodycam footage that were played during the preliminary examination, we find it significant that when asking defendant to exit the vehicle, Officer Bailey clearly told defendant, "shut the car off real quick man; I ain't gonna hold you up too long." Reviewing Officer Mana's played bodycam footage and testimony, we also find it significant that Officer Mana testified that when defendant was standing in front of the patrol car, and while Officer Bailey was searching his vehicle, defendant was not under arrest at that point. Officer Mana affirmatively testified that defendant was instead being detained for an investigation and he was placed under arrest only after the third search of person revealed suspected heroin. Officer Mana testified that it was he who placed defendant under arrest at that time, specifically for a violation of controlled substances law.

To determine whether a person is in custody, "the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v Beheler, 463 U.S. 1121, 1125; 103 S.Ct. 3517; 77 L.Ed.2d 1275 (1983). In Berkemer v McCarty, 468 U.S. 420, 441-42; 104 S.Ct. 3138; 82 L.Ed.2d 317 (1984), for example, the Supreme Court rejected an assertion that the defendant was in custody after his vehicle was stopped and he was told to exit the vehicle:

. . . respondent has failed to demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Only a short period of time elapsed between the stop and the arrest. At no point during that interval was respondent informed that his detention would not be temporary. Although Trooper Williams apparently decided as soon as respondent stepped out of his car that respondent would be taken into custody and charged with a traffic offense, Williams never communicated his intention to respondent. A policeman's unarticulated plan has no bearing on the question whether a suspect was "in custody" at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation. Nor do other aspects of the interaction of Williams and respondent support the contention that respondent was exposed to "custodial interrogation" at the scene of the stop. From aught that appears in the stipulation of facts, a single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest. [footnotes deleted]

And in Terry v Ohio, 392 U.S. 1, 26; 88 S.Ct. 1868; 20 L.Ed.2d 889 (1968) the Supreme Court clarified that there is a distinct difference between a brief detention and an arrest:

An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows.

The actions and testimony of the officers support that defendant was initially briefly detained because he allegedly ran a red light and then freely admitted he did not have a valid driver's license, (see Terry, 392 U.S. 1), but was not under arrest until Officer Mana told him he was and handcuffed him. Dashcam footage shows that after defendant exited the vehicle, he stood in front of the police car, chatting with the officers. He was not handcuffed and his movement was not restrained. Approximately six minutes after Officer Bailey initiated his search of the vehicle, Officer Mana approached Officer Bailey (who was still searching) and Officer Bailey told Officer Mana that he had found "folds" (folded lottery tickets, which Officer Bailey testified was indicative of heroin packaging) stuffed into the headliner above the passenger compartment. Officer Bailey then directed Officer Mana to search defendant again, because defendant had a pocket full of lottery tickets. After Officer Mana's search of defendant and his finding of suspected heroin in defendant's pocket, Officer Mana handcuffed defendant, then walked back to Officer Bailey and queried, "take him?" to which Officer Bailey replied "sure." It is only at that point, some fifteen minutes after Officer Bailey's initial conversation with defendant, that Officer Mana advised defendant, "You're being arrested right now for violation of controlled substances."

Before the search of the car, there was no indicia of a formal arrest.^{3 3} On his exit from the vehicle and for some time thereafter, defendant was not handcuffed, was not read his Miranda ^{4 4}rights, was not told he was under arrest, and was not placed in a patrol car. His freedom of movement was not restricted. Officer Mana unequivocally testified that it was he that placed defendant under arrest and his bodycam video supports his testimony. Only after the search of his vehicle revealed suspected controlled substances and a third search of his person arrest revealed the same did Officer Mana handcuff defendant, tell him he was under arrest, and identify a specific reason for defendant's arrest.^{5 5} Indeed, no mention was made of an arrest for driving without a valid driver's license in any of the bodycam footage that was played at the preliminary examination. Thus, defendant was not under arrest until after the search of his vehicle and the third search of his person, when Officer Mana arrested him.

3 The dissent fails to distinguish between a seizure and an arrest, mixing the caselaw and the concepts interchangeably.

3 The majority holds that the fruit of the poisonous tree doctrine applies.

4 Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966).

4 The videotape shows an officer filling out an impound card, and the prosecution made the card a part of its appendix filed in this Court. Although not a part of this record, due to the trial court's not permitting the prosecution a supplementary evidentiary hearing, as discussed below, the impound card could be made a part of the record if the case were remanded.

5 While Officer Bailey testified that during his initial two searches of defendant he found lottery tickets in his back pocket, he also testified that this finding was not suspicious to the level of probable cause.

5 The fact that defendant's recent episode of driving on a suspended license resulted in his arrest and jailing, and not merely the issuance of a citation, simply reinforces that conclusion.

SEARCH INCIDENT TO ARREST

As previously indicated, the search of a vehicle incident to arrest is permitted only when the arrestee is unsecured and within reaching distance of the vehicle's compartments, and when police reasonably believe that evidence related to the crime of arrest may be found in the vehicle. Gant, 556 U.S. at 343. Even if this Court were to conclude that defendant was under arrest immediately upon exiting the vehicle, Officer Bailey's search of defendant's vehicle does not qualify as a search incident to arrest under Gant ^{6 6}

6 Although the prosecution asserts only that the search at issue was a valid inventory search, for purposes of thoroughness, we nevertheless address whether the search of defendant's vehicle could alternatively qualify as a search incident to arrest.

6 The majority opinion is filled with statements of fact-finding and factual conclusions: "Two things also indicate that the search of defendant's vehicle served as a pretext for investigation, rather than a normal police procedure."; "As previously indicated, it is highly doubtful that defendant was, in fact, actually arrested when he exited his vehicle."; "Rather, it is readily apparent that the search of the vehicle was conducted for the express purpose of investigating potential evidence of any other crime[.]" As noted, Officer Bailey's state of mind does not matter, given that probable cause to arrest defendant existed based on his driving on a suspended license. Robinson, 414 U.S. at 224; Devenpeck, 543 U.S. at 153.

It is uncontested (and the bodycam videos establish) that defendant was pulled over and Officer Bailey initiated contact with him at approximately 10:23 p.m. Less than three minutes later, defendant exited the vehicle and stood in front of the police car, facing away from Officer Bailey and accompanied by Officer Hill. At that point, Officer Bailey began searching defendant's vehicle. The vehicle, and none of the compartments or contents therein were anywhere near defendant, let alone within his reach when the search was initiated or conducted. Gant, 556 U.S. at 343. Additionally, if, as the prosecution argues, defendant was under arrest for driving without a valid operator's license upon his exit from the vehicle, there would be no evidence "related to the crime of the arrest" to be found in his vehicle. Gant, 556 U.S. at 343. Given the above, Officer Bailey's search of defendant's vehicle does not qualify as a search incident to arrest.^{7 7}

7 The dissent cites to Illinois v Lafayette, 462 U.S. at 646, for the proposition that "it is entirely proper for police to remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed." The dissent, however, omits the phrase immediately preceding the quoted language, which states "At the stationhouse, it is entirely proper . . ." (emphasis added). Lafayette is thus inapplicable to the matter before this Court.

7 The majority, citing People v Toohey, 438 Mich. 265, 271-272; 475 N.W.2d 16 (1991), states that "Under the inventory search exception, the police may conduct an inventory search of a vehicle, in accordance with its departmental regulations, that is being impounded following the driver's valid arrest." In Toohey, the search of the impounded vehicle was preceded by an arrest, and that statement by our Supreme Court reflects the facts of the case. Indeed, an arrest may even be the most common occurrence leading to an inventory search of an impounded vehicle, but an arrest is not a legal prerequisite to such an inventory search. "In the interests of public safety and as part of what the Court has called 'community caretaking functions,' automobiles are frequently taken into police custody. Vehicle accidents present one such occasion." South Dakota v Opperman, 428 U.S. 364, 3689; 96 S.Ct. 3092; 49 L.Ed.2d 1000 (1976) (citation omitted). "Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge." Id. at 368-369. See also 2016 DPD Impoundment Policy, § 204.4, Procedures, (providing that vehicles can be impounded for a number of reasons, including evidence, safekeeping, accidents, and abandonment).

The dissent repeatedly circles back to the third search of defendant's person that revealed drugs to conclude that there were at least factual issues concerning a valid search incident to arrest or valid inventory search of defendant's person. Notably, however, the prosecution did not raise the issue of whether Officer Mana's search of defendant's pockets was independently justifiable as a search incident to defendant's purported arrest for operating without a license. Rather, the prosecution argued that Officer Bailey's discovery of suspected drugs during a lawful inventory search of defendant's vehicle provided probable cause for Officer Mana to then search defendant's pockets.^{8 8}

8 The prosecution clearly and thoroughly stated its arguments as such and is in no need of vigorous advocacy by the dissent of other arguments.

8 Here, the trial court in effect constitutionalized the discovery rules, by applying the Fourth Amendment standard to what was alleged to be a discovery violation. This was a clear error of law, which by definition is an abuse of discretion. See People v Al-Shara, 311 Mich.App. 560, 566; 876 N.W.2d 826 (2015) ("A trial court also necessarily abuses its discretion when it makes an error of law."). The circuit court's entire rationale was that "the failure of the People to produce the impound cards speaks to the [DPD's] noncompliance with their own inventory policy." Factually, however, the videotape established that an impound ticket was issued, and, as noted, the prosecution included it in an appendix in this Court. Legally, the trial court improperly assessed the non-production in discovery of the impound tickets under the Fourth Amendment standard rather than under the standard applicable to discovery violations. Compare People v Frazier, 478 Mich. 231, 247-250; 733 N.W.2d 713 (2007) (addressing the exclusionary rule as a remedy for a Fourth Amendment violation due to police misconduct) with People v Greenfield, 271 Mich.App. 442, 456 n 10; 722 N.W.2d 254 (2006) (addressing the standard for exclusion of evidence due to a discovery order violation). Indeed, "The [Exclusionary] rule's sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations." Davis v United States, 564 U.S. 229; 236-237; 131 S.Ct. 2419; 180 L.Ed.2d 285 (2011). But whether evidence should be suppressed because of a discovery violation involves very different considerations, and requires "a balancing of the interests of the courts, the public, and the parties" and an "inquiry into all the relevant circumstances, including the causes and bona fides of tardy, or total, noncompliance, and a showing by the objecting party of actual prejudice." People v Davie (After Remand), 225 Mich.App. 592, 598; 571 N.W.2d 229 (1997) (citations and quotation marks omitted); see also Greenfield, 271 Mich.App. at 455-456 n 10 (noting requirement of actual prejudice to justify suppression for non-compliance with discovery obligation). And of course, a garden variety discovery violation- as opposed to the obligation to provide exculpatory information, see Brady v Maryland, 373 U.S. 83; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963); United States v Bagley, 473 U.S. 667, 105 S.Ct. 3375; 87 L.Ed.2d 481 (1985)-cannot rise to the level of a constitutional violation, as "[t]here is no general constitutional right to discovery in a criminal case." People v Elston, 462 Mich. 751, 765; 614 N.W.2d 595 (2000).

And, we cannot ignore the sequence of events. Defendant was not placed under arrest when he exited the car and was never placed under arrest for driving without a valid license. Officer Mana unequivocally testified that he arrested defendant. And he did so only after Officer Bailey conducted a search of defendant's car, found suspected drugs therein, and told Officer Mana to search defendant a third time. The bodycam footage played at the preliminary examination verifies the above. Defendant was not charged with driving without a valid operator's license. Indeed, the only charges brought against defendant were for violation of controlled substances laws based upon the substances found on his person-which is exactly for what Officer Mana testified he arrested defendant.^{9 9}

9 If a search of defendant, conducted because he was being placed under arrest for driving without a valid license (and otherwise constitutionally sound), had revealed drugs on his person, that search of his person would undoubtedly qualify as a search incident to arrest. But that is not what happened. While the dissent makes much about the majority's purported "fact-finding," this is not a case of "he said she said" or one where the facts are largely contested. Indeed, having video recording of the entire incident and the testimony of Officer Bailey provides the lower court and this Court with a very clear understanding of what transpired. Both courts have been presented issues of legal, rather than factual significance. Two searches of defendant's person revealed nothing illegal or suspicious, according to Officer Bailey's uncontested testimony. He thereafter proceeded to search defendant's vehicle as, he specifically testified, an inventory search, and then, only after Officer Bailey discovered suspected drugs in the headliner of the vehicle and told Officer Mana to search defendant for the third time were drugs found. We cannot look at the third search of defendant's person in a vacuum.

9 The majority's factfinding is extensive. See n 7 of this opinion.

Thus, while the dissent may find it unclear why the search of the vehicle is material, it is abundantly clear to this Court, as it was the trial court, that where the search of defendant's vehicle prompted the search of his person wherein drugs were found, the search of the vehicle is highly material, as is further discussed below.

INVENTORY SEARCH

Police may conduct an inventory search of a vehicle, in accordance with their departmental regulations, that is being impounded following the driver's valid arrest. Toohey, 438 Mich. at 271-272. While Officer Bailey could have reasonably arrested defendant for driving without a valid license and thus impounded the vehicle, again, there is no indication that he did so. Assuming, without deciding, the vehicle could have been lawfully impounded upon immediate removal of defendant from the car, the validity of the inventory search depends on the whether there were standardized criteria, policies, or routines regulating how inventory searches were to be conducted. People v Poole, 199 Mich.App. 261, 265; 501 N.W.2d 265 (1993), citing Wells, 495 U.S. at 4. Once a warrantless search has been shown, the state bears the burden of showing that the search is within an exception to the rule. People v Reed, 393 Mich. 342, 362; 224 N.W.2d 867 (1975).

While police may exercise some discretion in executing an inventory search consistent with departmental policies, that discretion is not unfettered. Poole, 199 Mich.App. at 266 (citation omitted). After all, the foremost goal of requiring policies "is to prevent inventory searches from being used as 'a ruse for general rummaging in order to discover incriminating evidence' and, therefore, the applicable policy 'should be designed to produce an inventory.'" Id. at 266, quoting Wells, 495 U.S. at 4. "The individual police officer must not be allowed so much latitude that inventory searches are turned into a purposeful and general means of discovering evidence of crime." Wells, 495 U.S. at 4, quoting Colorado v Bertine, 479 U.S. 367, 376; 107 S.Ct. 738; 93 L.Ed.2d 739 (1987).

In Wells, our Supreme Court held that because the applicable standardized criteria did not regulate the opening of containers found during inventory searches, the search "was not sufficiently regulated to satisfy the Fourth Amendment" and that incriminating evidence found as a result of the inventory search was properly suppressed. Id. at 5. Thus, to pass constitutional muster, an inventory search must be performed pursuant to a standardized policy and that policy must regulate the manner in which inventory searches are conducted.

The Detroit Police Department Manual's "Impounding of Vehicles" states, in its first paragraph, that "[w]henever a vehicle . . . is impounded by a member of the Department for any reason (e.g., evidence, safekeeping, accidents, abandonment, etc.) two (2) original copies of an Impound Vehicle Card (DPD406) shall be completed in dark blue or black ink." The policy further states that "[a]ny member impounding a vehicle shall complete Impounded Vehicle Cards (DPD406) with an itemized list detailing the 'Accessories on Vehicle' section." There is nothing in the policy setting forth parameters as to how in-depth the interior of a vehicle is to be searched, or what and in what manner specific property found inside the vehicle is to be documented. While Officer Bailey testified at the preliminary examination that his department requires an inventory search of impounded vehicles, there was no further testimony as to how an inventory search is to be conducted and in reading the policy itself, there is no clear departmental policy on how such searches should be conducted. As a matter of law, then, the search here suffered from the same constitutional defect as that in Wells, supra.

Moreover, Officer Bailey admitted at the preliminary examination that the department policy requires that when a car is to be impounded, an inventory search must be conducted and a card be filled out with respect to the inventory. He testified that his police report did not include an impound inventory card, and he could not recall if he filled out an impound card inventorying items inside the vehicle as required by departmental procedures. As of the date of the hearing on defendant's motion to suppress (three months after the preliminary examination was held), the prosecution was still unsure whether an impound inventory card existed. The trial court did not have the benefit of any impound inventory card when rendering its decision and we do not consider it here because our review is limited to the record established by the trial court, and a party may not expand the record on appeal. "[T]o consider evidence presented on appeal that the parties failed to present to the trial court would be an impermissible expansion of the lower-court record." People v Morrison, 328 Mich.App. 647, 655; 939 N.W.2d 728 (2019).

While the dissent states otherwise, no videotape establishing that impound tickets were issued was provided to the trial court in any filings. As previously indicated, at the time of the suppression hearing, the prosecution was unsure if impound inventory cards existed. It said so on the record and requested additional time at the suppression hearing to attempt to ascertain their existence. After the trial court granted defendant's motion to suppress, the prosecution filed no motion for reconsideration and submitted no further documentation or requests to the trial court. Instead, defendant's motion was granted on February 8, 2019 and the prosecution proceeded directly to a claim of appeal with this Court on March 22, 2019.

Additionally, while there may have been videotape showing the issuance of an impound ticket, that appears to this Court to be based on the bodycam footage of Officer Hill. Officer Hill did not testify at the preliminary examination, his bodycam footage was not played at the preliminary examination, and the trial court was not provided with this bodycam footage. The prosecution's attachment of Officer Hill's bodycam footage on appeal was an impermissible attempt to expand the record on appeal, as were much of the prosecution's other attachments to its appeal brief^{10 10} See MCR 7.210(A)(1) ("In an appeal from a lower court, the record consists of the original papers filed in that court or a certified copy, the transcript of any testimony or other proceedings in the case appealed, and the exhibits introduced."). Thus, to the extent that the dissent relies upon an impound inventory card or Officer Hill's bodycam footage to establish that the search was a valid inventory search or to establish a question of fact on that issue, such reliance constitutes fact-finding by the dissent based on evidence outside of the record.¹¹

10 For example, the preliminary examination in this matter was approximately one hour long and only Officers Bailey and Mana testified. The prosecution improperly appended to its appeal brief approximately four hours of video footage, which was captured by the dashboard cam and the bodycams of all three officers involved in the stop.

10 It is of course unimportant whether Logan, as an unpublished opinion, has precedential value. I cite it for the fact that officers found a loaded handgun in a vehicle's headliner, not for any legal conclusion.

11 Were the evidence even to be properly considered, we note that according to Officer Mana's bodycam, defendant was pulled over at 22:23, and Officer Bailey began searching defendant's car within minutes, as defendant stood outside the vehicle and chatted casually with the other officers. According to Officer Hill's bodycam, it was not until 22:48 that Officer Hill obtained an "Impounded Vehicle" form from the police car. At 22:56, Hill got out of the police car, walked over to where Officer Bailey was still searching defendant's vehicle, and asked Officer Bailey, "Any personal property that you know of?" Officer Bailey responded, "not much," and indicated that there were some shoes in the back of the vehicle. Thus, the impound inventory card did not even make an appearance until more than 20 minutes after Officer Bailey had begun his extensive search of defendant's vehicle and it was not even Officer Bailey who filled it out.

At the hearing on defendant's suppression motion, the trial court correctly stated that the burden was on the People to "demonstrate the reasonableness of this warrantless search." The trial court indicated that it had read defendant's motion and the People's response and had also reviewed the preliminary examination. It additionally stated:

And at this point, what the Supreme Court has said about warrantless searches and vehicles, it can be done after valid impoundment, it can be done if it's if an inventory is done in accordance with standard procedures of the department and where the purpose is to protect the property or the vehicle owner, to protect the police from lawsuits . . .

Defense counsel argued to the court that the impound inventory card was

very, very pertinent to this matter, your Honor, because it demonstrates whether or not this clearly was an inventory search with regard to impound, as the standardized policies and procedures of the Detroit Police Department articulate inventory. Without the paperwork, the search is not a valid inventory search.

The failure to even affirmatively assert before the trial court, let alone provide evidence to the trial court, that an impound inventory card was filled out evidenced to the trial court that this was not a valid inventory search. This is necessarily so, as a failure to fill out the card meant that the officers had not been searching in accordance with their written policy.

That is, however, only one piece of the question concerning the constitutionality of an inventory search. Courts "assess the constitutionality of police conduct by whether they acted in accordance with standardized departmental procedures when conducting an inventory search, in the absence of a claim that the police were attempting to conduct further criminal investigation disguised as an inventory search." Toohey, 438 Mich. at 279 (emphasis added). Part and parcel of a determination concerning the constitutionality of an inventory search, then, is a consideration of a claim that the search was a disguise for further investigation, if one is made. Defendant made such a claim and the trial court could properly consider that claim when making its constitutionality determination.

The prosecution here not only failed to establish that the search of defendant's vehicle was conducted in conformance with departmental procedures, it failed to establish that the search was not used as a pretext for unfounded investigation, as was its burden. See People v Mayes, 202 Mich.App. 181, 184; 508 N.W.2d 161 (1993). An inventory search may be conducted on a vehicle that is being impounded following the driver's valid arrest. Toohey, 438 Mich. at 271-272. At the preliminary examination, the testimony of Officers Bailey and Mana verify that Officer Bailey immediately began searching defendant's vehicle after defendant went to stand by the patrol car. Officer Mana's bodycam video also establishes that he advised defendant of his arrest for possession of controlled substances long after Officer Bailey initiated his search of the vehicle.

More importantly, Officer Bailey performed a search of defendant's vehicle that went well beyond the purpose of an inventory search. He felt along the headliner of the vehicle (within the first three minutes of searching), which he advised Officer Mana was a good hiding place because it was "not tore down at all. It's tight up there." Officer Bailey's bodycam also shows him removing part of the dashboard while conducting his purported "inventory" search.

In People v Sinistaj, 184 Mich.App. 191, 199; 457 N.W.2d 36 (1990), this Court held that the search of a vehicle was not a valid inventory search, in part "because the officers failed to follow established departmental procedures for an inventory search, and because their removal of the panel from inside the trunk went far beyond the scope of those procedures." Thus, where a search is so clearly unrelated to the purposes of an inventory search to protect defendant's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger (Wells, 495 U.S. at 4), it is unconstitutional. This principal is reinforced in Sibron v New York, 392 U.S. 40, 65-66; 88 S.Ct. 1889; 20 L.Ed.2d 917 (1968):

Even assuming arguende that there were adequate grounds to search Sibron for weapons, the nature and scope of the search conducted by Patrolman Martin were so clearly unrelated to that justification as to render the heroin inadmissible. The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand into Sibron's pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception-the protection of the officer by disarming a potentially dangerous man. Such a search violates the guarantee of the Fourth Amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents.

Though not binding upon this Court, we also find rulings made by other courts on this issue persuasive. In State v Jewell, 338 So.2d 633 (La, 1976), for example, police found the defendant asleep in driver's seat of vehicle which was illegally parked on a highway at night with its motor running and lights out. Id. at 635. The defendant was then removed from the vehicle and arrested. Id. One police officer immediately searched the defendant's vehicle and found illegal drugs in small aspirin bottle in an open ashtray. Id. at 639. The court found that the facts surrounding the search, specifically where standard inventory forms were not completed at time of the search of the vehicle, and the search was made for obtaining incriminating evidence and not for safekeeping of valuables in vehicle, the warrantless search of the vehicle was not justified as an inventory search. Id. . at 638-640.

In United States v Taylor, 636 F.3d 461, 463 (CA 8, 2011), a defendant was stopped for a traffic violation and was arrested. A search of his vehicle ensued. The police towing policy required officers to complete a report, which included a detailed inventory of the vehicle's contents, when a vehicle is towed. Id. at 463. The court found the police did not comply with their written standardized procedures. Id. at 465. The court also noted that "[e]ven if police fail to adhere to standardized procedures, the search is nevertheless reasonable provided it is not a pretext for an investigatory search" but that" 'something else' must be present to suggest that the police were engaging in their criminal investigatory function, not their caretaking function, in searching the defendant's vehicle." Id. at 465.¹²

12 See also, United States v Lugo, 978 F.2d 631, 636 (CA 10, 1992) ("The issue, however, is whether or not Sabourin's actions in bending over the corner of the vent in the door panel and looking inside, then reaching inside the cavity between the door panel and door to retrieve a paper sack, can fairly be described as a community caretaking function within the meaning of Cady [v Dombrowski, 413 U.S. 433, 441; 93 S.Ct. 2523; 37 L.Ed.2d 706 (1973)]. We think not. … Thus, we hold that the search into the interior of the door panel was not constitutionally justifiable as a community caretaking function.") and United States v Best, 135 F.3d 1223, 1225 (CA 8, 1998) ("Trooper Byrd's use of a flashlight to look inside the window and his opening Best's door panel did not serve the purpose of 'protecting the car and its contents.'").

The "something else" in this matter was the scope and meticulousness of Officer Bailey's search of defendant's vehicle. Officer Bailey's search went far beyond identifying and documenting any items in defendant's car in order to protect his property, insure against claims of lost or stolen property, or to protect the police from danger. The search was not prompted by a plain view of any valuables in the car and did not serve a caretaking function. Rather, it is readily apparent that the search of the vehicle was conducted for the express purpose of investigating potential evidence of any other crime, i.e., it was used as pretext for an investigative search and was thus unconstitutional.

The constitutionality of the inventory search is critical to determining whether the final search of defendant's person was proper. This is necessarily so, as inventory searches are exempt from the warrant requirement precisely because they are "described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v Dombrowski, 413 U.S. 433, 441; 93 S.Ct. 2523; 37 L.Ed.2d 706 (1973).

The search of defendant's vehicle here was the only thing that supplied the police with probable cause to arrest defendant and search him a final time for contraband. The trial court ultimately held:

Well the Court at this time is going to grant the defense motion to suppress the evidence. The Court believes that the lack or failure of the People to produce the inventory cards speaks to the department's noncompliance with their own inventory policy, which was attached to the defense motion as Exhibit B.

The Court does find at this point that without the-the evidence that the people cannot sustain their case and the Court is going to dismiss the case. Without prejudice.

The trial court thereafter entered an order dismissing the case without prejudice.¹³

13 The ruling was not, as the dissent asserts, a dismissal based upon a discovery violation. Defendant requested that the case be dismissed due to a lack of evidence, and the trial court explicitly found that the prosecution did not meet its burden of establishing that the inventory search was conducted in compliance with its departmental policy. The trial court thus found that the inventory search did not pass constitutional muster. In addition, the dismissal was without prejudice. If, as the prosecution now argues (and the dissent appears to agree), that the dismissal was based solely on the failure to produce the inventory cards during discovery, it could have moved for reconsideration or to reinstate the case based upon it locating and belatedly producing the inventory cards. It did not. Instead, it sought appeal to this Court and, in doing so, also attempted expand the record by providing documentary evidence that was not provided to the trial court.

In the context of the trial court's ruling (and the only logical conclusion that can be drawn therefrom its decision, given defense counsel's arguments immediately preceding the ruling and the court's statements during the hearing) is that the purported inventory search was actually a pretext for an evidence-gathering expedition. As the dissent points out, defendant was charged with violation of controlled substances laws for items found on his person. He was not charged with any crime related to driving, nor was he charged with any crime concerning anything found in his vehicle. The trial court found that the purported inventory search was invalid because there was no evidence that it had been conducted in compliance with departmental policy. It then concluded that without "the evidence" the people could not sustain their case. The only evidence for which defendant was charged was the drugs found on his person. Thus, it was that evidence that must, according to the trial court, be suppressed. Had the trial court determined that the search of defendant's person that revealed the drugs was a separate and valid search, it would not have dismissed the charges.

SUPPRESSION OF EVIDENCE

Evidence obtained in violation of the rights afforded under the Fourth Amendment and article 1, § 11 is inadmissible as substantive evidence in criminal proceedings. Toohey, 438 Mich. at 272. The exclusionary rule prohibiting the admission of evidence procured in violation of a person's constitutional rights extends to materials and testimony that are "the products or indirect results of an illegal search" under the "fruit of the poisonous tree" doctrine. People v Mahdi, 317 Mich.App. 446, 470-471; 894 N.W.2d 732 (2016). As stated by the Supreme Court, the apt question in reviewing evidence that would not have come to light but for illegal police actions is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v United States, 371 U.S. 471, 487-488; 83 S.Ct. 407; 9 L.Ed.2d 441 (1963) (citation omitted).

"[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or 'fruit of the poisonous tree.'" People v Frazier, 478 Mich. 231, 247 n 17; 733 N.W.2d 713 (2007), quoting Segura v United States, 468 U.S. 796, 804; 104 S.Ct. 3380; 82 L.Ed.2d 599 (1984) (internal citations omitted). Exclusion of such evidence is warranted when the evidence would not have come to light but for the illegal actions of the police. People v Maggit, 319 Mich.App. 675, 693; 903 N.W.2d 868 (2017).

The substances discovered in defendant's vehicle (which prompted the final search of defendant) would not have come to light but for the police action of engaging in an unconstitutional purported inventory search of his vehicle. Thus, evidence of the substances found in defendant's vehicle would not have been admissible as evidence against defendant. The same holds true for the substances found on defendant's person.

After Officer Bailey found suspected narcotics during his illegal search of defendant's vehicle, defendant was searched for a third time. That third search revealed suspected marihuana and controlled substances. Defendant had twice been already searched without any illegal substances having been found, and he was not subject to the third search until the suspected controlled substances were illegally obtained from his vehicle. It was at that point that Officer Bailey directed Officer Mana to search defendant again "good." The third search and finding of illegal substances on defendant's person came about by an exploitation of the illegal vehicle search and the process through which the substances were obtained from his person was not sufficiently distinguishable from the illegal vehicle search to be purged of the primary taint. Wong Sun, 371 U.S. at 487-488. The trial court thus properly granted defendant's motion to suppress the evidence and dismissed the charges against him.

THE DISSENT

The dissent asserts that this Court engaged in fact-finding to reach its conclusions and emphasizes that there was no evidentiary hearing conducted on this issue. However, the dissent disregards the actual evidence provided to the trial court, and ignores that the trial court did not deny the prosecution an opportunity to have an evidentiary hearing. Neither defendant nor the prosecution requested one. And, significantly, the prosecution attached no evidence to its response to defendant's motion or at the hearing on defendant's motion to suppress that would allow the trial court to find that the search of defendant's vehicle was conducted in conformance with departmental policies. In response to defendant's motion, the prosecution set forth law applicable to inventory searches and stated that it was not clear if an inventory card was filled out. The prosecution stated that while the proper remedy would be to have a hearing to discover if there was one, "[nonetheless, that alone does not give rise to the suppression of the evidence in this case." The prosecution argued that the search at issue was "not unreasonable based on the circumstances that have been placed into record during the Preliminary Examination" and premised its response to defendant's motion exclusively on the preliminary examination testimony and evidence. Parties in a criminal action are permitted to rely on preliminary examination testimony in a post-examination motion¹⁴ to exclude evidence and it is not improper for a trial court to decide a motion to suppress based upon the record of the preliminary examination in that case. See People v Kaufman, 457 Mich. 266, 275; 577 N.W.2d 466 (1998).

14 There need not be a written or verbal stipulation to the use of a preliminary examination as the basis for a trial court's ruling on a suppression motion; the fact that the parties base their arguments on the preliminary examination testimony and evidence and do not dispute essential facts is sufficient. See People v Kaufman, 457 Mich. 266; 577 N.W.2d 466 (1998).

Moreover, the rule cited by the dissent for the proposition that the trial court was required to afford the prosecution an opportunity for an evidentiary hearing, MCR 6.110(D)(2), is inapplicable. That rule provides:

(2) If, during the preliminary examination, the court determines that evidence being offered is excludable, it must, on motion or objection, exclude the evidence. If, however, there has been a preliminary showing that the evidence

is admissible, the court need not hold a separate evidentiary hearing on the question of whether the evidence should be excluded. The decision to admit or exclude evidence, with or without an evidentiary hearing, does not preclude a party from moving for and obtaining a determination of the question in the trial court on the basis of

(a) a prior evidentiary hearing, or

(b) a prior evidentiary hearing supplemented with a hearing before the trial court, or

(c) if there was no prior evidentiary hearing, a new evidentiary hearing.

This rule clearly anticipates situations where a "court" conducting a preliminary examination makes a decision regarding the admissibility of evidence and a party later moves in the "trial court" for a determination on the admissibility of that evidence. Applying the plain and unambiguous language of MCR 6.110(D), People v Strong, 213 Mich.App. 107, 111; 539 N.W.2d 736 (1995), that rule merely provides that if a court made an evidentiary ruling on a piece of evidence (with or without an evidentiary hearing) during the preliminary examination, the defendant is not precluded from moving for an evidentiary hearing in regard to the admission of that same piece of evidence in the trial court or at trial. Additionally, in People v Olney, __Mich App__;__ N.W.2d__(2020), this Court further clarified that the preliminary examination itself can be considered an evidentiary hearing:

We do not read [MCR 6.110(D)] as concluding that preliminary examinations are wholly distinct from evidentiary hearings. Rather, the court rule addresses the necessity for a separate evidentiary hearing to decide questions concerning the admissibility of evidence. That does not mean that preliminary examinations are not a type of evidentiary hearing. Rather, the preliminary examination is, in effect, the evidentiary hearing at which the district court determines whether sufficient evidence to warrant the bindover is made. [slip opinion at 5]

Where the admissibility of any evidence was not challenged at the preliminary examination, ¹⁵neither party requested a separate evidentiary hearing with respect to the admissibility of any particular piece of evidence before the trial court, and the parties relied on the preliminary examination testimony, the circuit court was not required to conduct an evidentiary hearing.¹⁶

15 The district court thus made no determination as to the exclusion or admission of any particular evidence. Indeed, it bound defendant over to the trial court simply because "it's a question of fact."

16 The dissent states that at the preliminary examination, "defendant argued for suppression of the evidence on the basis that the police had failed to create impound cards regarding the search of the vehicle. Defendant contended that the failure to create an impound card was a violation of the inventory search policy and thus warranted suppression." That is not only untrue, the dissent appears to confuse the relevant issues, burdens of proof, and determinations in the district court at preliminary examination and those in the trial court on the motion to suppress.

The trial court correctly found, on the record before it at the time of its ruling, that the search of defendant's vehicle was unconstitutional. It thereafter properly suppressed the evidence discovered on the third search of defendant's person because, as the search was prompted by the unconstitutional search of his vehicle, the evidence was the product or indirect result of an illegal search.

Affirmed.

Tukel, P.J. (dissenting.)

I respectfully disagree with the majority's conclusion that the present appeal can settle the constitutionality of the seizure of the evidence at issue here. As I explain in more detail below, I see several flaws in the majority's disposition of the case. First, most of the legal and factual issues on which the majority relies were not presented to the trial court, and the trial court never conducted a separate evidentiary hearing, nor did it afford the prosecution the opportunity to present relevant evidence. As a result, the majority usurps the role of the trial court by engaging in fact-finding in the first instance, abandoning our role as an error-correcting court. In doing so, the majority strikes down the entirety of the Detroit Police Department's (DPD) inventory search policy regarding automobiles, even though that issue was never raised below. Although that is unwarranted in my view, I will have little more to say about it, other than that we ought not to decide the issue given that it was not raised by defendant, and that we ought not to be finding facts in the first instance. Although erroneous in my view, the majority's opinion is limited to the 2016 DPD policy, which has been supplanted by a much more extensive 2019 policy.¹ Therefore, although I think the majority is incorrect in striking down the 2016 policy, the majority opinion, even if followed in other pre-2019 cases, will not affect current DPD practices. Additionally, the majority relies on its view of subjective assessments by officers, rather than an objective view of the evidence, as is required under a proper Fourth Amendment analysis.

In short, although the majority ultimately may be correct that the trial court's suppression of the evidence at issue here should be upheld, in my view we cannot do so on this record. I would vacate the trial court's order, as it was legally erroneous, and remand the case to the trial court for further proceedings.

I. UNDERLYING FACTS

A. PRELIMINARY EXAMINATION

Before we turn to the evidence, it is important to consider what the record in this case is and is not. No separate suppression hearing was conducted in this case. The district court conducted a preliminary examination, at which defendant argued for suppression of the evidence on the basis that the police had failed to create an impound card regarding the search of the vehicle. Defendant contended that the failure to create an impound card was a violation of the inventory search policy and thus warranted suppression. Defendant also asserted that the prosecution breached its discovery obligations, by failing to provide an impound card, if one existed. Defendant also argued that the seizure of evidence from his person was barred by Arizona v Gant, 556 U.S. 332; 129 S.Ct. 1710; 173 L.Ed.2d 485 (2009), even though Gant applies only to searches of vehicles incident to arrest, not to searches of one's person.

At the preliminary examination, the district court heard testimony of two officers, at the conclusion of which it declined to suppress the evidence. The preliminary examination testimony established that defendant was pulled over for running a red light. On a video recording which also has audio, taken after defendant was pulled over by officers, defendant admitted that he did not have a valid driver's license; he did not have insurance for the vehicle that he was driving; and he had just been released from jail following an arrest for driving on a suspended license. Officer Michael Bailey ordered defendant out of his vehicle and to stand in front of the police vehicle, where he was on-camera; defendant stood in front of the police vehicle, but was not told that he was under arrest, nor was he placed in handcuffs or advised of his Miranda rights, although Officer Bailey testified that defendant was under arrest at the time he was ordered out of the vehicle.²Officers searched defendant's person twice without finding contraband. Officers also searched the interior of defendant's vehicle, including the headliner, finding two knotted plastic baggies, one containing three folded lottery tickets and the other containing one folded lottery ticket. Upon finding the folded lottery tickets, which the testimony established often are used to package controlled substances, Officer Bailey directed Officer Yousif Manna to again "search defendant good," because Officer Bailey had just found a number of folded lottery tickets in the vehicle. This time, the search of defendant's person disclosed a knotted sandwich bag containing heroin, which resulted in the present charges, and a separate knotted baggie containing marijuana; the preliminary chemical analysis of the powdery substance found in the headliner was inconclusive, and those items were forwarded to the Michigan State Police Crime Laboratory for further testing.

Defendant argued that the search of his vehicle was an invalid inventory search, principally on the basis that no impound card of the vehicle was produced. No argument as such was made regarding the search of the headliner, and no testimony, for or against the validity of such a search of the headliner was offered. At the conclusion of the preliminary examination, the district court bound defendant over, and reminded the prosecution of its discovery obligations, which admonition related only to the failure to produce impound cards-the sole basis which had been advanced in support of suppression.

B. CIRCUIT COURT MOTION TO SUPPRESS

Defendant moved in the circuit court to suppress the evidence found in the third and final search of his person. Relying on Arizona v Gant, 556 U.S. 332; 129 S.Ct. 1710; 173 L.Ed.2d 485 (2009), defendant asserted that the final search of his person, which yielded heroin, could not have been a valid search incident to arrest, because Gant only permits a search incident to arrest for evidence of the crime of arrest, and at that time, defendant maintains, there was probable cause to arrest him only for driving on a suspended license and without insurance. Defendant's argument for suppression was plainly erroneous as a matter of law, as Gant applies only to searches of vehicles incident to arrest, not to searches of persons, as is discussed in greater detail below. Defendant also alleged that the search of his vehicle was an unlawful inventory search, solely on the basis that officers had not issued an impound ticket to him, as required by DPD policy. Although he never used the term "fruit of the poisonous tree," in the body of his motion, nor did he make an argument about why the doctrine should apply, defendant concluded his motion by stating "WHEREFORE, Defendant Tremell Mathews respectfully requests that the evidence seized by police officers be suppressed as fruit of the poisonous tree and the charge dismissed."³He also added, "Defendant also respectfully requests for the dash camera video to be produced in compliance with the court's discovery order and any other relief this Honorable Court finds to be in the interest of good conscious [sic] and justice."

On February 8, 2019, the circuit court held a hearing, at which the parties addressed the suppression issue. No separate evidentiary hearing was conducted, nor did the trial court inquire as to whether either party wanted to adduce additional evidence. Nevertheless, the prosecutor stated that she did not know whether an impound card existed and asked for additional time to investigate. Defense counsel argued that the parties already had been given over four months to exchange discovery. The trial court granted defendant's motion to suppress, on the basis that "the failure of the People to produce the impound cards speaks to the [DPD's] noncompliance with their own inventory policy." In fact, in suppressing evidence of the inventory search of defendant's vehicle on the basis that the prosecution failed to comply with discovery orders, the trial court applied the wrong legal standard, and also prevented the prosecution from demonstrating factually that it had in fact issued an impound card in accordance with DPD policy.⁴ The trial court's statement that "the failure of the People to produce the impound cards" somehow demonstrates "the [DPD's] noncompliance with their own inventory policy," does not logically follow, as the DPD and the Prosecutor's office are two separate entities. It is from that order of suppression (and the associated order of dismissal) that the prosecutor appeals.

II. ANALYSIS

A. SEARCH INCIDENT TO ARREST

The majority rejects the search incident to arrest doctrine as a basis for upholding the search at issue here. Ordinarily, I would decline to address that issue because it was not relied upon by the trial court, although the trial court could properly consider it if the case were remanded. Nevertheless, in light of the majority's resolution of the issue, I will discuss it.

1. INITIAL CONSIDERATIONS

The majority makes reference to Arizona v Gant. The majority is correct that Gant addresses only searches of vehicles, not persons, incident to arrest. Nevertheless, the majority holds that the search of defendant's vehicle invalidates the search incident to arrest in which the heroin was found.

Gant held that

Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. [Gant, 556 U.S. at 351 (emphasis added).]

Gant thus left intact the well-established rule allowing a complete physical search of a person who has been lawfully arrested:

It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This general exception has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee. [United States v Robinson, 414 U.S. 218, 224; 94 S.Ct. 467; 38 L.Ed.2d 427 (1973).]

This case involves the first aspect of the doctrine, the search of defendant's person, as that is where the heroin was found, not in the vehicle.

Throughout the series of cases in which the Court has addressed the second proposition relating to a search incident to a lawful arrest-the permissible area beyond the person of the arrestee which such a search may cover-no doubt has been expressed as to the unqualified authority of the arresting authority to search the person of the arrestee. [Id. at 225 (emphasis added).]

Significantly, and unlike the permissible scope of the search of vehicles, the authority to search the person of an arrestee is not limited by the likelihood of finding evidence, the risk of danger under the circumstances, or any other case-specific fact, but rather is a per se rule permitting a full search of the person in any case involving a valid custodial arrest:

The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable" search under that Amendment. [Id. at 235.]

Thus, it is necessary to analyze what does and does not constitute a valid arrest for Fourth Amendment purposes.

2. WHAT CONSTITUTES AN ARREST UNDER THE FOURTH AMENDMENT

"Remarkably, the [United States] Supreme Court has never defined the word 'arrest' with any precision and lower court decisions conflict as to its meaning." Clancy, What Constitutes an Arrest within the Meaning of the Fourth Amendment, 48 Vill L Rev 129, 129 (2003), available at: https://digitalcommons.law.villanova.edu/vlr/vol48/iss1/3. Nevertheless, certain principles are clear. Under Berkemer v McCarty, 468 U.S. 420, 442; 104 S.Ct. 3138; 82 L.Ed.2d 317 (1984) (citations omitted), a case cited by the majority, in determining whether an individual was in custody, the United Stated Supreme Court has concluded, "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." The Court applied that test in the context of deciding "whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered 'custodial interrogation.'" Id. at 435; see also id. at 438 (referring to "the typical traffic stop") and id. at 439 (referring to "the usual traffic stop").

"Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose 'observations lead him reasonably to suspect' that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to 'investigate the circumstances that provoke suspicion.'" Id. at 439." '[T]he stop and inquiry must be 'reasonably related in scope to the justification for their initiation.'" Id., quoting Terry v Ohio, 392 U.S. 1, 29; 88 S.Ct. 1868; 20 L.Ed.2d 889 (1968). "Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. . . . And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released." Id. at 439-440. Thus, "[t]he comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not 'in custody' for the purposes of Miranda." Id.

Applying those principles to the facts of the case, the Court held that "Although Trooper Williams apparently decided as soon as respondent stepped out of his car that respondent would be taken into custody and charged with a traffic offense, Williams never communicated his intention to respondent. A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Id. at 442.

Thus, rather than supporting the majority's position, Berkemer v McCarty undermines it. If the present case involved an "ordinary traffic stop," there might be merit to the majority's contention that defendant was not in custody when Officer Bailey ordered him out of his vehicle. But this case involves anything other than an ordinary traffic stop. It is undisputed that defendant's license was suspended, as the majority concedes, and defendant is clearly heard on the video telling the officers that he had just been released from jail for the same offense. It seems to me quite unlikely, bordering on the ludicrous, to suppose that a reasonable person who had (1) been pulled over for running a red light; (2) admitted to officers that he did not have a valid driver's license or insurance; and (3) told officers that he had just been released from jail for driving on a suspended license, would objectively conclude that he was not under arrest and, after possibly receiving a traffic citation, would be permitted to drive off.⁵ As the Supreme Court noted in Berkemer v McCarty,

A motorist's expectations, when he sees a policeman's light flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way. [468 U.S. at 437.]

Such could not have been the reasonable conclusion of one in defendant's situation- the officers could not have released defendant to drive away, because to do so would have been putting an unlicensed and uninsured driver back on the street, implications which the majority never confronts. As the Supreme Court further noted, "unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released." Berkemer, 468 U.S. at 439-440. That is quite unlike the situation here, in which, at the moment he ordered defendant out of the vehicle, officer Bailey had probable cause to arrest defendant for driving on a suspended license. This fact completely belies the assertion by the majority that "[t]he search of defendant's vehicle was the only thing that supplied the police with probable cause to arrest defendant and search him a final time for contraband"; the police had probable cause to arrest prior to ordering defendant out of the vehicle, and his arrest fully justified a search of his person. Robinson, 414 U.S. at 224.

In order to get around that point, the majority argues that defendant was not arrested for driving on a suspended license, but rather was arrested for the heroin once it was found. Although the majority makes a number of arguments in that regard, none has merit.

The majority first argues that Officer Bailey and Officer Mana contradicted each other about the reason for the arrest. Officer Bailey testified that defendant was under arrest for driving on a suspended license at the moment he was ordered out of the vehicle; Officer Mana testified that defendant was not under arrest until the heroin was discovered. While it is true that the two officers contradicted each other, the majority's conclusion-that such a contradiction has legal significance-is mistaken, because its analysis is based on subjective beliefs by officers as to whether and when an arrest took place; however, the proper approach to search and seizure issues is that such questions are evaluated on an objective, reasonable person basis. See Whren v United States, 517 U.S. 806, 813; 116 S.Ct. 1769; 135 L.Ed.2d 89 (1996) ("Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."); Berkemer v McCarty, 464 U.S. at 442 ("A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation.").

Nothing in the record even remotely suggests that Officer Mana communicated any sentiment to defendant that, until the heroin was discovered, he was not under arrest. Thus, that aspect of the case is exactly like Berkemer v McCarty, in which the Court ignored the subjective views of Trooper Williams, because "Williams never communicated his intention to respondent. A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." See 468 U.S. at 442. Thus, a proper analysis here requires that the Court completely ignore any subjective views of Officer Mana, and of Officer Bailey as well.

The limitation that a court consider only the objective facts also controls regarding a consideration of an officer's motivation for searching. In other words, it is completely irrelevant whether an officer suspected that someone was in possession of drugs, and wanted to search to confirm or dispel that suspicion, so long as the objective facts provided probable cause to arrest. See Whren v United States, 517 U.S. 806, 813; 116 S.Ct. 1769, 1774; 135 L.Ed.2d 89 (1996), in which officers' suspicion of drug dealing led to a traffic stop and seizure of drugs. Earlier cases "established that 'the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.'" Id. at 813 (citation omitted). Thus, "an officer's 'subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.'" People v Hammerlund, 504 Mich. 442, 479 n 52; 939 N.W.2d 129 (2019) (Zahra, J., dissenting), quoting Devenpeck v. Alford, 543 U.S. 146, 153;125 S.Ct. 588; 160 L.Ed.2d 537 (2004). In Devenpeck, police suspected Alford of impersonating a police officer, and arrested him for that offense. Officers discovered a tape recorder in Devenpeck's car, which was seized incident to arrest, and he was charged with making an illegal recording. Defendant sued on the ground that there was not probable cause to arrest him for impersonating an officer, and the offenses involving the tape recording "were not 'closely related' to the offense invoked by" the officer as he took Alford into custody. Id. at 152.

In rejecting that argument, the Supreme Court held:

Our cases make clear that an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. The Fourth Amendment's concern with reasonableness allows certain actions to be taken in certain circumstances, whatever the subjective intent. Evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer. [Devenpeck, 543 U.S. at 153 (quotation marks, brackets, and citations omitted).]

The majority's entire discussion is premised on Officer Bailey arresting defendant for a drug offense, as to which there was not probable cause when he was ordered out of the vehicle; but the majority's conclusion that Officer Bailey subjectively wanted to arrest based on and to search for drugs is legally irrelevant, as Officer Bailey's "subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause." Id. Thus, it makes no difference that Officer Bailey may have wanted to arrest defendant because he suspected that defendant was in possession of drugs, provided that objectively a person in defendant's situation would have reasonably concluded that he was in custody and there was an objective basis for making such an arrest for some offense. For the reasons stated, there was more than adequate probable cause to arrest defendant for driving on a suspended license.

The majority relies on two pieces of evidence from the preliminary examination to determine that defendant was not in custody. First, Officer Bailey did not handcuff defendant or advise him of Miranda rights after defendant was ordered out of the vehicle. Again, the absence of such actions could not cause a reasonable person, with defendant's history of driving on a suspended license, to objectively conclude that he was not under arrest and could simply leave upon the conclusion of their interaction, even if officers did not find heroin. Additionally, the majority relies on the fact that Officer Bailey did not state to defendant that defendant was under arrest; in fact, Officer Bailey told defendant words to the effect of "shut the car off real quick man; I ain't gonna hold you up too long." Here again, the majority relies on its own findings of fact, as there are none by the trial court and Officer Bailey's words are susceptible of more than one meaning. The majority interprets the words to mean "I'm not going to hold you up too long because you are not under arrest." However, in context, they easily could have meant "I'm not going to hold you up too long here because I am taking you to the police station for booking, in light of the fact that you admitted you were driving on a suspended license, have no proof of insurance, were just released from jail for driving on a suspended license, and as you have no valid driver's license I cannot permit you to drive away." It is important in that regard to note that Officer Bailey made his statement after defendant admitted that he had no valid driver's license or insurance, and had just been released from jail, so Officer Bailey's statement was in response. Again, the majority ought not be finding such facts in the first instance, but setting that aside, the majority also applies the wrong legal standard: what matters here is not what defendant subjectively understood (or might have understood) about his situation, but what a reasonable person in his situation objectively would have thought.⁶

Indeed, in light of defendant's inability to drive away lawfully due to his suspended-license status, the officers could not have simply released him, as the majority seems to conclude should have happened under the circumstances; at a minimum, the police would have had to impound the vehicle, and consequently would have had to conduct an inventory search. All of those are facts which ought to be weighed by the trial court in the first instance, to determine what a reasonable person in defendant's situation would have objectively perceived. But if the reasonable conclusions of a person in that situation are as I describe them, then defendant was lawfully in custody for driving on a suspended license and thus was subject to "a full search of the person." Robinson, 414 U.S. at 235. The majority offers no reason why officers could not search defendant a second or third time, except to state that he was not arrested for driving on a suspended license, due to Officer Bailey's putative subject intentions, and that probable cause did not exist until lottery tickets were found in the vehicle. Given that the objective facts provided probable cause to arrest defendant for driving on a suspended license, however, the searches of defendant's person were lawful incident to arrest. And if officers had missed the heroin in his pockets, as they did during the first two searches, they nevertheless would have found it at the station following his booking. Again, I would not decide this case on the basis of any such suppositions; I would simply vacate the incorrect decision by the trial court and remand for additional proceedings. However, I draw out what I believe to be very much contestable facts only to underscore the majority's role in finding facts in the first instance.

B. INVENTORY SEARCH

1. PRELIMINARY CONSIDERATIONS

The parameters of a permissible inventory search are generally settled:

An inventory search is a well-defined exception to the warrant requirement of the Fourth Amendment. An inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. Rather, the search protects an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property and guards the police from danger. The search must be conducted reasonably, in good faith, and pursuant to standardized police procedures designed to produce an inventory, including procedures that regulate the opening of containers found during inventory searches. [People v Mead, 320 Mich.App. 613, 625-626; 908 N.W.2d 555 (2017).]

In this case, the question of the lawfulness of the seizure of the heroin from defendant's pocket as the fruit of an inventory search is bound up with the question of whether we have a proper record to consider the issues raised. The inventory search issue presented here originates in a somewhat unusual context: according to the majority, as far as the inventory search doctrine is concerned, the issue of whether the heroin was lawfully seized from defendant's pocket turns on whether the antecedent search of the vehicle was lawful as an inventory search.⁷ A search of an arrestee's person can constitute an inventory search, as "[I]t is entirely proper for police to remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed. A range of governmental interests support an inventory process." Illinois v Lafayette, 462 U.S. 640, 646; 103 S.Ct. 2605; 77 L.Ed.2d 65 (1983). The inventory search process "not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person. Arrested persons have also been known to injure themselves-or others-with belts, knives, drugs or other items on their person while being detained." Id. (emphasis added). Thus, it is clear that if an inventory search of defendant's person was justified, a search which would disclose drugs was properly within its scope. Moreover, an inventory search of one's person is justified based not only on how an arrestee might use such dangerous items while in custody, but also based on what the person might do with them upon release. "Dangerous instrumentalities-such as razor blades, bombs, or weapons-can be concealed in innocent-looking articles taken from the arrestee's possession. The bare recital of these mundane realities justifies reasonable measures by police to limit these risks-either while the items are in police possession or at the time they are returned to the arrestee upon his release." Id.

2. INVENTORY SEARCH DOCTRINE AS APPLIED TO THIS CASE

The majority's opinion jumps right to the merits of the search. However, as I have noted, no separate suppression hearing was held in the circuit court. The district court considered the suppression issue which was presented to it, the alleged non-creation of an impound card, in the context of the preliminary examination, without a separate suppression hearing. The manner in which the district court handled the suppression issue and the evidentiary hearing aspect of it was within its discretion. See MCR 6.110(D)(2). The circuit court, however, was required to afford the prosecution an opportunity for an evidentiary hearing, even if the district court had held a full evidentiary hearing (which it did not). See MCR 6.110(D)(2) (Providing that in the context of a preliminary examination, "The decision to admit or exclude evidence, with or without an evidentiary hearing, does not preclude a party from moving for and obtaining a determination of the question in the trial court on the basis of '(a) a prior evidentiary hearing, or (b) a prior evidentiary hearing supplemented with a hearing before the trial court.' "). The majority sweeps aside the plain language of the rule, which applies to "a party," as being inapplicable on the basis that "that rule merely provides that if a court made an evidentiary ruling on a piece of evidence (with or without an evidentiary hearing) during the preliminary examination, the defendant is not precluded from moving for an evidentiary hearing in regard to the admission of that same piece of evidence in the trial court or at trial." As is plain, the rule applies to "a party," and not merely a defendant. And while the prosecution never moved for a supplemental or de novo evidentiary hearing in the trial court, it never had a chance to do so, as the trial court simply proceeded to rule on the basis of the existing record. It is now clear that in fact there was an impound ticket created, as the prosecution included it in its appendix filed in this Court. I believe this fact alone justifies a remand for supplementation of the record, as proof that an impound card was created would cast the issues in a very different light.

Although the circuit court's failure to conduct an evidentiary hearing might have been harmless in light of the circuit court's ruling (which was based solely on the failure to produce the impound card in discovery), it is not harmless in the context of the majority opinion.⁸ That is so because the majority engages in factfinding in the first instance. See, e.g., In re Martin, 200 Mich.App. 703, 717; 504 N.W.2d 917 (1993) (alteration in original) ("It is not the function of an appellate court to decide disputed questions of fact in the first instance and then choose between affirmance or reversal by testing its factual conclusion against that which the trial court might have . . . reached."). That rule flows from our role as an error-correcting court, see, e.g., Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich.App. 182, 210; 920 N.W.2d 148 (2018) (describing this Court as an "error-correcting court"); MCR 2.613(C) (providing that "Findings of fact by the trial court may not be set aside unless clearly erroneous. In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.").⁹

Thus, there was no testimony offered on a number of issues which the majority reaches out and decides in the first instance. For example, the majority questions how a search of the headliner of a vehicle could serve the stated purposes of an inventory search "to protect defendant's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." The majority reaches that conclusion without the benefit of any testimony regarding the search of the headliner, why the officers acted as they did, and whether they believed a search of the headliner was permitted by DPD search policy. If the parties had known that the majority in this Court was going to consider suppression on a basis not argued by defendant; and if the circuit court had then conducted an evidentiary hearing on that basis, as it was required to do if requested by a party, see MCR 6.110(D)(2)-and which the prosecution almost certainly would have requested had it known that the officers' actions in conducting the search would come under scrutiny in the manner called into question by the majority-then we would have before us the officers' justification for the search of the headliner. If we knew the officers' actual motivations for acting as they did, those actions might be cast in a very different light, as it is of course the officers who actually conduct searches and arrests who are most familiar with the hiding places and tactics used by drug traffickers. Indeed, opinions of courts which had before them fully developed records demonstrate that headliners can be used to hide dangerous instrumentalities, the discovery of which is part of the justification for the inventory search doctrine, see Lafayette, 462 U.S. at 646, and the justification for the policy can be based not only on what an arrestee has access to at the time of arrest, but also based on what will be available following release, id.

For example, in People v Logan, unpublished opinion of the California Court of Appeals, issued December 29, 2016 (Docket No. B271723), p 2, a loaded .38 caliber handgun was found "within reach in the van, in the headliner."¹⁰ As a legal matter in this case, it is unimportant whether a weapon inside the headliner would have been quickly available to defendant; accessibility is a limitation on the search incident to arrest doctrine as applied to vehicles, not to the standards for an inventory search. See Gant, 556 U.S. at 351 (emphasis added) ("Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies."). But had there been a proper evidentiary hearing, the officers, through their experience, might well have been able to shed light on how readily accessible guns or drugs hidden in a vehicle's headliner are in practice, which may have been important to the resolution of both the inventory search and search incident to arrest issues. And it is readily apparent that a gun, or drugs, are "dangerous instrumentalities" which properly may be the subject of an inventory search policy, to limit the danger they otherwise would pose to the police and public "at the time they are returned to the arrestee upon his release." Lafayette, 462 U.S. at 646.

The majority reiterates, based principally on the search of the headliner, that Officer Bailey harbored a secret intention to search for evidence of criminality, and that such an intention vitiated the validity of an inventory search. While I have noted why the search of the headliner may have been justified by an inventory search policy and there is factually no evidence of any motivation by the officers other than proper police work, "the fact that an officer suspects that contraband may be found does not defeat an otherwise proper inventory search." United States v Lumpkin, 159 F.3d 983, 987 (CA 6, 1998) (citations omitted); id., citing United States v Lewis, 3 F.3d 252, 254 (CA 8, 1993) (alterations in original) ("noting that '[t]he presence of an investigative motive . . . does not invalidate an otherwise valid inventory search' ").

Any conclusion about the propriety of an inventory search is unwarranted on this record. See, e.g., United States v Hollister, unpublished opinion of the United States District Court of Minnesota, issued July 12, 2012 (Docket No. 12-CR-13 (PJS/TNL)), p 16 (holding that "Absent any record before this Court on the inventory search procedures, this Court cannot, for example, assess whether searching under the headliner would have exceeded the scope of the inventory search"). Although the error in this regard may have been initiated by the circuit court, the majority exacerbates the problem, because instead of remanding the case to the circuit court to conduct a proper evidentiary hearing, it simply finds facts it assumes to be true. See Tingley v Kortz, 262 Mich.App. 583, 588; 688 N.W.2d 291 (2004) ("Ordinarily, we do not address issues not raised below or on appeal, or issues that were not decided by the trial court."); People v Miller, 238 Mich.App. 168, 172; 604 N.W.2d 781, 783 (1999) (declining to consider an issue because the "[d]efendant did not raise his constitutional challenge in the list of questions presented" and "nothing in defendant's statement of questions presented suggests that he is presenting a constitutional challenge"); MCR 7.212(C)(5).

And finally, it is unclear to me why the search of the vehicle is even material, as nothing seized from the vehicle was used to charge defendant, or was to be offered against him at trial. The majority argues that the search of defendant's person which yielded heroin was fruit of the poisonous tree. Given defendant's arrest, his person was subject to an inventory search prior to being jailed. The lawfulness of the search of the vehicle could not affect the validity of search of defendant's person, because that search was justified either as incident to his arrest, or as an inventory search based on his arrest. The lawfulness or unlawfulness of the search of the vehicle could not affect those bases for searching defendant's person. And even if one assumes that defendant's person would not have been searched again and the heroin discovered but for the discovery of the folded lottery tickets, that is at most a factual question, and without a proper evidentiary hearing and factfinding by the trial court on that issue, we cannot know that.

III. CONCLUSION

For the reasons stated, I would vacate the order of suppression and the order dismissing the case, and remand for further proceedings. I therefore respectfully dissent from the majority opinion.