Opinion
Docket No. 174421.
Submitted December 19, 1995, at Detroit.
Decided May 17, 1996, at 9:20 A.M. Leave to appeal sought.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and J. Benjamin Dolan, Assistant Prosecuting Attorney, for the people.
Angelo A. Plakas Associates, P.C. (by Angelo A. Plakas), for the defendant.
Defendant was convicted by a jury of operating a motor vehicle while visibly impaired, MCL 257.625(3); MSA 9.2325(3). He also pleaded guilty of violating a driver's license restriction, MCL 257.312; MSA 9.2012. He was sentenced to two years' probation. Police officers had stopped defendant after they saw him slowly driving in a parking lot at 3:30 A.M. without using his headlights. The officers determined that he was incapable of operating a motor vehicle and arrested him. Defendant appeals the judgment of sentence on the bases that the officers illegally stopped him without a reasonable suspicion that criminal activity was afoot and that one of the arresting officers was not qualified as an expert to testify regarding the field sobriety tests to which defendant was subjected. We affirm.
At trial, defendant testified that the following incidents preceded the stop at issue. On July 2, 1993, he had three or four beers with dinner. At approximately 3:00 A.M. the following morning, a friend telephoned him and asked him to come to a nearby mall to jumpstart his car. Defendant complied and successfully jump-started his friend's car. As he started to leave the parking lot, he noticed a police car behind him with its lights flashing and he pulled over.
The officers testified that they noticed defendant's car slowly traveling in a dark parking lot without the use of headlights. They stopped defendant's vehicle and noted several indications that defendant had been drinking alcohol (e.g., staggering, strong smell of alcohol on his breath, and slurred speech).
The officers had defendant perform some field sobriety tests. These included reciting the alphabet, a "finger correlation test," counting backwards from ninety-three to eighty-five, and a five-step "heel to toe" test. They concluded that defendant was not capable of driving a vehicle, arrested him, and took him to the police station.
On appeal, defendant first contends that the trial court erred in denying his motions to quash the information, to suppress evidence, and for a directed verdict. He contends that the trial court should have granted these motions because the police officers had no reasonable suspicion of criminal activity that would have justified a Terry investigative stop, see Terry v. Ohio, 392 U.S. 1; 88 S.Ct. 1868; 20 L.Ed.2d 889 (1968), and therefore all the evidence gained from the stop was inadmissible as the product of an illegal search and seizure.
To review a circuit court's decision regarding a motion to quash an information, this Court determines if the district court abused its discretion in binding over the defendant. People v. Fiedler, 194 Mich. App. 682, 693; 487 N.W.2d 831 (1992). This Court reviews trial court decisions regarding motions to suppress evidence under the clearly erroneous standard. People v. Muro, 197 Mich. App. 745, 747; 496 N.W.2d 401 (1993). In reviewing a trial court's decision regarding a motion for a directed verdict, this Court views the evidence presented up to the time the motion was made in the light most favorable to the prosecution to determine if a rational factfinder could find the essential elements of the crime proved beyond a reasonable doubt. People v. Daniels, 192 Mich. App. 658, 665; 482 N.W.2d 176 (1992).
The Fourth Amendment of the United States Constitution and Const. 1963, art. 1, § 11 grant individuals the right to be secure against unreasonable searches and seizures. In re Forfeiture of $176,598, 443 Mich. 261, 264-265; 505 N.W.2d 201 (1993). "It is well established that brief investigative stops short of arrest are permitted where police officers have a reasonable suspicion of ongoing criminal activity." People v. Christie (On Remand), 206 Mich. App. 304, 308; 520 N.W.2d 647 (1994), citing Terry, supra. The criteria for a constitutionally valid investigative stop are that the police have "a particularized suspicion, based on an objective observation, that the person stopped has been, is, or is about to be engaged in criminal wrongdoing." People v. Shabaz, 424 Mich. 42, 59; 378 N.W.2d 451 (1985). The totality of the circumstances are to be considered to assess the police officer's suspicion that criminal activity is afoot. Id.; Christie, supra at 308.
[T]he following rules apply with respect to the stopping, searching, and seizing of motor vehicles and their contents:
"1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.
"2. Said reasonableness will be determined from the facts and circumstances of each case.
"3. Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.
"4. A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police." [ Id. at 308-309.]
Here, at the preliminary examination, one of the arresting officers testified, "[a] vehicle traveling without the use of headlights at 3:30 in the morning in a dark lot made me suspicious." He did not specify the exact nature of his suspicion. We infer that he suspected theft. Because the stores were closed at that hour, an automobile driving away from the stores without use of its headlights raised a reasonable suspicion of theft. Further, driving in the dark without headlights would also raise a reasonable suspicion of careless driving. See MCL 257.626b; MSA 9.2326(2). A reasonable suspicion of either theft or careless driving would have provided a legitimate basis for stopping defendant.
At the preliminary examination, the officer additionally testified that, at the time of the stop, he thought that it was a crime to be driving at night without using headlights. However, at trial, the officer conceded that no ordinance prohibits the driving of a vehicle in a parking lot at night without using headlights. Therefore, the officers would not have been authorized to issue defendant a citation on this basis.
However, this fact does not invalidate the reasonable suspicion of ongoing criminal activity raised by defendant's driving without using headlights at 3:30 A.M. as discussed above. That one of the officers — wrongly — believed that defendant was committing a traffic misdemeanor does not undermine the validity of a traffic stop premised upon the officers' reasonable suspicion of other criminal activities raised by defendant's conduct. Either the officers' suspicion that a theft had occurred or their suspicion that defendant was violating the careless driving law sufficed to allow the instant stop.
Defendant contends that People v. Freeman, 413 Mich. 492; 320 N.W.2d 878 (1982), mandates reversal of his conviction. The Freeman Court reversed a conviction of carrying a pistol in an automobile. In Freeman, the police officers observed an idling, occupied car with its parking lights on in a darkened, deserted parking lot near a darkened house at 12:30 A.M. The Freeman Court held that the circumstances did not support a reasonable suspicion of criminal activity and offered legitimate alternative rationales for the defendant's actions (e.g., to rest, to check directions, to rendezvous with others). Id. at 496. Here, the circumstances supported a reasonable suspicion of criminal activity.
Therefore, we find that the district court did not abuse its discretion in binding defendant over for trial. Nor did the trial court err in denying defendant's motion to quash the information. Nor was the trial court's denial of defendant's motion to suppress clear error. Accordingly, we also find that the trial court appropriately denied defendant's motion for a directed verdict.
Defendant next contends that the trial court erred in denying his motion in limine to suppress evidence of the field sobriety tests because the officer was not qualified as an expert to testify regarding the results of these tests.
This Court reviews for an abuse of discretion trial court determinations regarding whether a witness is qualified to render an expert opinion. People v. Williams (After Remand), 198 Mich. App. 537, 542; 499 N.W.2d 404 (1993).
MRE 702 governs the admissibility of expert testimony. It states:
If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The Williams Court stated, at 541:
Admissibility is governed by a three-part test: (1) the expert must be qualified; (2) the evidence must serve to give the trier of fact a better understanding of the evidence or assist in determining a fact in issue; and (3) the evidence must be from a recognized discipline.
On appeal, defendant argues only that the first element of this test, that the expert was qualified, was not met with respect to the officer's testimony regarding the field sobriety tests. The trial court considered the following evidence regarding the officer's qualifications: he had been a police officer for one year and seven months at the time of the stop at issue and he had received four or five hours of training on the field tests at issue and had received on-the-job training regarding such tests. This evidence indicated that the officer possessed knowledge, training, and experience regarding the field sobriety tests at issue. On the basis of this evidence, the trial court found the officer qualified to offer expert testimony with respect to the field sobriety tests and denied defendant's motion in limine. We find no abuse of discretion in this determination.
The trial court limited the officer's testimony regarding the "horizontal gaze and nystagmus test" because there was evidence that he had received only limited training with respect to that test.
For these reasons, we affirm the judgment of sentence.
Affirmed.