People of Michigan v. Tremell C Mathews ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 2, 2021
Plaintiff-Appellant,
v No. 348155
Wayne Circuit Court
TREMELL C. MATHEWS, LC No. 18-008966-01-FH
Defendant-Appellee.
Before: TUKEL, P.J., and SERVITTO and BECKERING, JJ.
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
1
See https://detroitmi.gov/sites/detroitmi.localhost/files/2019-04/Towing-
Impound%20Procedures%20Directive%20204.4.pdf.
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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 US 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. 2
Officers 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
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.
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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 US 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.”3
He 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
3
The majority holds that the fruit of the poisonous tree doctrine applies.
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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 US 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
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.
-4-
arrest. The second is that a search may be made of the area within the control of
the arrestee. [United States v Robinson, 414 US 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 US 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”).
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“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 US 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 US at 437.]
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.
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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 US 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 US 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 US 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 US 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 US 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 US 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
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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 NW 2d 129 (2019) (ZAHRA, J., dissenting), quoting Devenpeck v.
Alford, 543 US 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 US 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
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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 US 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.
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 US at 224; Devenpeck, 543 US at 153.
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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 NW2d 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 US 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
7
The majority, citing People v Toohey, 438 Mich 265, 271-272; 475 NW2d 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 US 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).
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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
8
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
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because the majority engages in factfinding in the first instance. See, e.g., In re Martin, 200 Mich
App 703, 717; 504 NW2d 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 NW2d 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,
under the standard applicable to discovery violations. Compare People v Frazier, 478 Mich 231,
247-250; 733 NW2d 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 NW2d 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 US 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 NW2d 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 US
83; 83 S Ct 1194; 10 L Ed 2d 215 (1963); United States v Bagley, 473 US 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 NW2d 595 (2000).
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 NW2d 826 (2015) (“A trial court also necessarily abuses its discretion when it makes an
error of law.”).
9
The majority’s factfinding is extensive. See n 7 of this opinion.
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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 US 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 US 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
US 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
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.
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F3d 983, 987 (CA 6, 1998) (citations omitted); id., citing United States v Lewis, 3 F3d 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 NW2d 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 NW2d 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.
/s/ Jonathan Tukel
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