D People of Michigan v. Paul Lamount Goree ( 2022 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 22, 2022
Plaintiff-Appellant,
v No. 357302
Wayne Circuit Court
PAUL LAMOUNT GOREE, LC No. 18-009718-01-FH
Defendant-Appellee.
Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.
BORRELLO, J. (dissenting).
As the majority acknowledges, “[t]he touchstone of our analysis under the Fourth
Amendment is always ‘the reasonableness in all the circumstances of the particular governmental
invasion of a citizen’s personal security.’ ” Pennsylvania v Mimms, 434 US 106, 108-109; 98 S
Ct 330; 54 L Ed 2d 331 (1977), quoting Terry v Ohio, 392 US 1, 19; 88 S Ct 1868; 20 L Ed 2d
889 (1968). Thus, when deciding a search and seizure issue, the focus must, at least initially, be
on the reasonableness of the police actions. As stated by the Supreme Court, reasonableness is the
“central inquiry under the Fourth Amendment.” Terry, 392 US at 19.
Here, my reading of the majority opinion leads me to conclude that it is constitutionally
permissible for a police officer, in their sole discretion, to prolong a traffic stop until the officer
takes advantage of the opportunity to order the occupants out of the vehicle. Not only is the result
conjured up by the majority contrary to Fourth Amendment precedents, see, infra, such a result is
unreasonable. Simply stated, Mimms does not bestow on police officers the authority to prolong
a traffic stop for as long as they desire for the sole purpose ofordering occupants out of the motor
vehicle. Clearly, such a holding runs afoul of the Fourth Amendment’s “reasonable” limitations
on the scope of a seizure. See id. at 17 (“And by suggesting a rigid all-or-nothing model of
justification and regulation under the Amendment, it obscures the utility of limitations upon the
scope, as well as the initiation, of police action as a means of constitutional regulation.”). See also
id. at 19-20 (“And in determining whether the seizure and search were ‘unreasonable’ our inquiry
is a dual one—whether the officer’s action was justified at its inception, and whether it was
reasonably related in scope to the circumstances which justified the interference in the first
place.”) (emphasis added). “The scheme of the Fourth Amendment becomes meaningful only
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when it is assured that at some point the conduct of those charged with enforcing the laws can be
subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness
of a particular search or seizure in light of the particular circumstances.” Id. at 21. However, the
majority’s approach essentially insulates a police officer’s conduct in these circumstances from
any judicial review and improperly requires absolute deference to the police officer’s own
discretion in judging the constitutionality of the officer’s conduct. Because I disagree with their
analysis and with the majority’s interpretation of Rodriguez v United States, 575 US 348; 135 S
Ct 1609; 191 L Ed 2d 492 (2015), I respectfully dissent.
Officer Jacob Esposito testified that after he stopped the vehicle at issue in this case for
having an unlit license plate. Esposito approached the vehicle and requested that the driver
produce his license, vehicle registration, and verification of insurance. According to his testimony,
Esposito was the sole officer on the scene when he initiated the traffic stop. After all of the
requested documents were presented to him, Esposito went to his police vehicle and verified the
validity of the driver’s license and that the vehicle was properly registered and insured. Esposito
also verified that the driver did not have any active warrants. During this time while Esposito was
in his police vehicle, the driver was still sitting in his own vehicle with defendant. Defendant was
sitting in the front passenger seat. Esposito wrote the driver a traffic citation for the unlit license
plate light.
Esposito testified that when he returned to the driver’s vehicle to return the documents and
deliver the citation, the driver appeared “nervous…[j]ust breathing heavy, kind of very uneasy,
kind of, like, fidgety, shifty.” Based on the driver’s nervousness, Esposito ordered him out of the
vehicle so he could “investigate the nervousness, why he was so nervous and fidgety.” Next,
Esposito observed defendant make a “furtive gesture towards the bottom of the seat or under the
seat” that caused Esposito to redirect his attention to defendant and speak to him. Esposito testified
that defendant “seemed a little nervous” and that he ordered defendant out of the vehicle. At some
point, according to Esposito’s testimony, another officer arrived on the scene in a separate police
vehicle to stand with the driver while Esposito “went to contact the defendant.” Esposito further
indicated that he allowed defendant to remain seated in the vehicle for some amount of time after
defendant made the “furtive gesture” before ordering defendant out of the vehicle, but Esposito
could not recall how long this interval lasted. The events that unfolded as defendant got out of the
vehicle led to the discovery of illegal substances.
Neither party disputes the legality of Esposito’s initial decision to initiate the traffic stop
based on the vehicle’s unlit license plate, thereby commencing the seizure of the vehicle’s
occupants. Arizona v Johnson, 555 US 323, 327; 129 S Ct 781; 172 L Ed 2d 694 (2009) (stating
that “a police officer effectively seizes ‘everyone in the vehicle’ for the duration of a traffic stop
but that doing so constitutes a “lawful investigatory stop” if the officer is inquiring into a “vehicular
violation”). However, “[i]t is . . . clear that a seizure that is lawful at its inception can violate the
Fourth Amendment if its manner of execution unreasonably infringes interests protected by the
Constitution.” Illinois v Caballes, 543 US 405, 407; 125 S Ct 834; 160 L Ed 2d 842 (2005).
Specifically, a “seizure that is justified solely by the interest in issuing a . . . ticket to the driver can
become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”
Id. The United States Supreme Court has explained:
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A seizure for a traffic violation justifies a police investigation of that
violation. “[A] relatively brief encounter,” a routine traffic stop is “more analogous
to a so-called ‘Terry stop’ . . . than to a formal arrest.” Like a Terry stop, the
tolerable duration of police inquiries in the traffic-stop context is determined by the
seizure’s “mission”—to address the traffic violation that warranted the stop, and
attend to related safety concerns. Because addressing the infraction is the purpose
of the stop, it may “last no longer than is necessary to effectuate th[at] purpose.”
Authority for the seizure thus ends when tasks tied to the traffic infraction are—or
reasonably should have been—completed. [Rodriguez, 575 US at 354 (alterations
and ellipsis in original; citations omitted; emphasis added).]
In accordance with these principles, an officer conducting a traffic stop may detain the
vehicle long enough to run a Law Enforcement Information Network (“LIEN”) check, People v
Davis, 250 Mich App 357, 364-368; 649 NW2d 94 (2002), and to ask reasonable questions
concerning the alleged traffic violation “and its context for a reasonable period,” People v
Williams, 472 Mich 308, 315; 696 NW2d 636 (2005). “[W]hen a traffic stop reveals a new set of
circumstances, an officer is justified in extending the detention long enough to resolve the
suspicion raised.” Id. However, although an officer “may conduct certain unrelated checks during
an otherwise lawful traffic stop,” the officer “may not do so in a way that prolongs the stop, absent
the reasonable suspicion ordinarily demanded to justify detaining an individual.” Rodriguez, 575
US at 355 (emphasis added).
The majority erroneously relies on Mimms and its progeny to support its conclusion that
“Officer Esposito did not violate the Fourth Amendment by ordering the driver and defendant out
of the vehicle.” In Mimms, 403 US at 107, police officers stopped a vehicle with an expired license
plate for purposes of issuing a traffic summons. Upon approaching the vehicle, one of the officers
asked the respondent to get out of the car and produce his license and other documents. Id. As
the respondent exited, the officer noticed a “large bulge” under the respondent’s clothing that was
subsequently discovered to be a firearm. Id. After the respondent’s motion to suppress was denied,
he was convicted of carrying a concealed deadly weapon and unlawfully carrying a firearm without
a license. Id. The Supreme Court of Pennsylvania reversed the conviction on the ground that the
“officer’s order to respondent to get out of the car was an impermissible seizure” that violated the
Fourth and Fourteenth Amendments “because the officer could not point to objective observable
facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle
posed a threat to police safety.” Id. at 107-108 (quotation marks and citation omitted). In reversing
the Pennsylvania Supreme Court, the United States Supreme Court held that “once a motor vehicle
has been lawfully detained for a traffic violation, the police officers may order the driver to get out
of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches
and seizures.” Id. at 111 n 6, 112.
Admittedly, the United States Supreme Court has explained that “Mimms itself drew a
bright line” and that “the principles that underlay that decision apply to passengers as well.”
Maryland v Wilson, 519 US 408, 413 n 1; 117 S Ct 882; 137 L Ed 2d 41 (1997). In Wilson, the
Supreme Court held that “a police officer may as a matter of course” order the driver and any
passengers in “a lawfully stopped car” to exit the vehicle. Id. at 410.
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Here, however, Esposito did not order the driver or defendant out of the vehicle “as a matter
of course” at the outset of the traffic stop or while he was carrying out his mission of investigating
the alleged traffic offense, even though he could have done so. Unlike the officer in Mimms,
Esposito also did not claim that it was his “practice to order all drivers out of their vehicles as a
matter of course whenever they had been stopped for a traffic violation.” Mimms, 434 US at 110.
Even though the rule set forth in Mimms does not require officers to have such a standard practice
or any particularized suspicion of additional unlawful activity to justify ordering occupants to exit
a vehicle during a lawful traffic stop, see id. at 109-110, 111 n 6; Wilson, 519 US at 410, it does
not follow that there is no constitutional limit on an officer’s authority to permissibly order an
occupant to exit a vehicle after a legitimately instituted traffic stop has concluded.
Here, as the trial court correctly noted, prior to Esposito ordering the driver and then
defendant out of the motor vehicle. Additionally, Esposito ran computer checks to ensure that
there were no outstanding warrants for the driver and that the driver’s license, registration, and
insurance were all valid. Hence, by this juncture, Esposito had completed his investigation and
his seizure of the motor vehicle and its occupants was no longer based on a reasonable suspicion
that criminal activity was afoot. It was only after Esposito wrote a citation for the driver, returned
to the vehicle to deliver the citation and return the driver’s documents, that he then decided to ask
the driver to get out based on his appearance of nervousness. Hence, the question then arises as to
whether the trial court correctly determined that Esposito, after writing a citation and verifying the
driver’s licensure, vehicle registration, and lack of any outstanding warrants, was justified in
prolonging the stop. See Rodriguez, 575 US at 354. Principally, did the observed behavior of the
driver constitute reasonable suspicion such that the stop could be prolonged. See id. at 355.
In Caballes, 543 US at 407, the United States Supreme Court addressed the question
“[w]hether the Fourth Amendment requires reasonable, articulable suspicion to justify using a
drug-detection dog to sniff a vehicle during a legitimate traffic stop.” (Quotation marks and
citation omitted.) In that case, the respondent was stopped for speeding and the Court proceeded
on the assumption that the police did not have any other information about the respondent. Id. at
406-407. While one police officer was in the process of writing a ticket, another officer walked a
narcotics-detection dog around the outside of the respondent’s car. Id. at 406. After the dog alerted
at the trunk, the officers searched the trunk and found marijuana. Id. The United States Supreme
Court accepted the lower court’s factual findings from the record evidence “that the duration of
the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident
to such a stop.” Id. at 408.1 On that basis, the Caballes Court held that a “dog sniff conducted
during a concededly lawful traffic stop that reveals no information other than the location of a
substance that no individual has any right to possess does not violate the Fourth Amendment.” Id.
at 410.
1
My colleagues in the majority, rather than accepting the trial court’s findings—which are amply
supported by the record—that the entire duration of the stop was not justified solely by inquiries
related to the mission of the traffic stop but was instead prolonged based on Esposito’s
observations of the driver’s “nervousness,” have essentially proceeded to make their own findings
of fact that Esposito was still acting in the course of his traffic-offense-investigation mission.
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Subsequently, in Rodriguez, 575 US at 353, the United States Supreme Court questioned
whether police “may extend an otherwise-completed traffic stop, absent reasonable suspicion, in
order to conduct a dog sniff.” (Emphasis added.) The police officer in that case stopped a vehicle
for unlawfully veering onto the shoulder of the highway. Id. at 351. The officer questioned the
driver about the infraction and collected the driver’s license, registration, and proof of insurance.
Id. The officer conducted a records check in his patrol car and then returned to the detained vehicle
where he asked the passenger for his driver’s license and questioned the passenger about the
occupants’ travel itinerary. Id. The officer returned to his patrol car, completed a records check
on the passenger, called for a second officer, and began writing a ticket for the driver. Id. The
officer went back to the detained vehicle, issued the written warning, returned the driver’s and
passenger’s documents, and then asked for permission to walk his dog around the vehicle. Id. at
352. The driver declined, and the officer instructed the driver to exit the vehicle and stand by the
patrol car to wait for the second officer. Id. The officer’s dog subsequently alerted to the presence
of drugs, which were in turn located after a search of the vehicle. Id.
The United States Supreme Court held “that a police stop exceeding the time needed to
handle the matter for which the stop was made violates the Constitution’s shield against
unreasonable seizures” and a “seizure justified only by a police-observed traffic violation,
therefore, become[s] unlawful if it is prolonged beyond the time reasonably required to complete
th[e] mission of issuing a ticket for the violation.” Id. at 350-351 (quotation marks and citation
omitted; alterations in original; emphasis added). While an officer “may conduct certain unrelated
checks during an otherwise lawful traffic stop . . . he may not do so in a way that prolongs the stop,
absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Id. at 355.
The distinction between the respective outcomes in Caballes and Rodriguez illustrates the
crux of the issue in the instant case and the point on which I disagree with my colleagues. In
Caballes and Rodriguez, the issue was not whether the officers could conduct a dog sniff of the
vehicle—they generally could without violating the Constitution—but instead involved questions
of when and on what basis a dog sniff could be permissible—i.e., officers could not conduct what
would have otherwise been a permissible dog sniff if the mission of investigating an ordinary
traffic offense should already have reasonably been completed before they conducted the dog sniff
unless there was reasonable suspicion to justify extending the detention of the vehicle’s occupants.
Reading Mimms, Wilson, Caballes, and Rodriguez together yields the general principle that an
officer does not need a specific reason to order an occupant out of a vehicle during a lawful traffic
stop that is reasonable in scope and duration relative to the traffic-enforcement mission of the stop,
but there must be the requisite reasonable suspicion to justify prolonging the stop after the point
that it reasonably should have been over in order for an officer to then permissibly require the
occupants to exit the vehicle. In short, application of reasonableness to our inquiry requires that
the permissible authority to order the occupants out of the vehicle as a matter of course expires
when the traffic stop should have reasonably been terminated.
My colleagues propose that the stop should not reasonably conclude until after the officers
takes advantage of the opportunity to order the occupants out of the car as a matter of course. They
are wrong. The majority appears to justify this position by citing Johnson, 555 US at 333 in
support of the statement, “It is equally well-settled that a traffic stop is not over until the officer
completes his investigation and releases the driver to leave.” While true from a practical
standpoint, the Supreme Court in Johnson unequivocally did not imply that all traffic stops are
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constitutional in scope and duration from the time the vehicle is pulled over until the officer
releases the driver. Rather, the Johnson Court’s statement of the relevant legal framework is
consistent with body of caselaw that I have already discussed:
A lawful roadside stop begins when a vehicle is pulled over for investigation
of a traffic violation. The temporary seizure of driver and passengers ordinarily
continues, and remains reasonable, for the duration of the stop. Normally, the stop
ends when the police have no further need to control the scene, and inform the
driver and passengers they are free to leave. An officer’s inquiries into matters
unrelated to the justification for the traffic stop, this Court has made plain, do not
convert the encounter into something other than a lawful seizure, so long as those
inquiries do not measurably extend the duration of the stop. [Id. (citation omitted;
emphasis added).]
Here, the trial court held that the stop of the motor vehicle went beyond what was
reasonable and that the stop should have been terminated once Esposito knew that the driver had
the proper license, was registered, insured and had no warrants—all of the relevant information
which formed the basis for the stop—and had returned to the vehicle to issue the citation (which
was already written) and return the driver’s documents. The trial court’s conclusion is supported
both legally and factually. Thus, the question next becomes whether there was reasonable
suspicion to justify prolonging the stop.
It was Esposito’s contention that the stop could be prolonged because the driver looked
nervous and defendant made a furtive movement. However, both of these observations occurred
after the trial court concluded the stop should have been terminated. Additionally, the trial court
held that neither basis, without any additional evidence, constituted reasonable suspicion to
prolong the stop. Hence, the trial court held, by the time Esposito searched the motor vehicle, the
constitutional violation had occurred.
The prosecutor, and my colleagues in the majority, disagree with the trial court’s holding
that Esposito’s observation of the driver appearing “nervous” was insufficient to constitute
reasonable suspicion to prolong the stop. The trial court held that being nervous did not constitute
reasonable suspicion because there exists a certain amount of nervousness in any traffic stop,
regardless of whether criminal behavior is afoot. It seems a matter of commonsense, and self-
evident to me as well, that there is a certain level of nervousness associated with a police officer
stopping a vehicle and asking the driver for their license, registration and proof of insurance.
Hence it is difficult for me to conclude that nervousness alone, in the manner of “fidgeting,” is
sufficient to constitute anything more than a hunch when determining whether an officer has
provided a legal basis for a finding of reasonable suspicion. “[T]he determination of reasonable
suspicion must be based on commonsense judgments and inferences about human behavior.”
People v Oliver, 464 Mich 184, 197; 627 NW2d 297 (2001) (quotation marks and citation omitted).
Reasonable suspicion to detain an individual “entails something more than an inchoate or
unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for probable
cause.” People v Champion, 452 Mich 92, 98; 549 NW2d 849 (1996) (citation omitted). To
determine whether an officer acted reasonably, “due weight must be given, not to his inchoate and
unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled
to draw from the facts in light of his experience.” Terry, 392 US at 27 (citation omitted).
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Additionally, the prosecution argues, Esposito testified that while he was watching the
driver act “nervous” he saw defendant make a furtive movement. However, Esposito never saw
defendant grab anything, never saw the presence of a weapon or narcotics until after Esposito told
defendant to exit the vehicle. Our Supreme Court has held that furtive gestures alone are
insufficient to establish a reasonable suspicion of criminal activity. See People v Shabaz, 424
Mich 42, 61; 378 NW2d 451 (1985). (“Because the police could only guess about what defendant
was seeking to hide, their speculation did not provide a particularized suspicion of possessory
wrongdoing, but only a generalized one.”).
And, as previously stated, the presence of nervousness is of limited value. While the United
States Supreme Court has recognized “nervous, evasive behavior is a pertinent factor in
determining reasonable suspicion,” Illinois v Wardlow, 528 US 119, 124; 120 S Ct 673; 145 L Ed
2d 570 (2000), it is only that—a factor. Indeed, other courts have stated nervousness “is an
unreliable indicator, especially in the context of a traffic stop . . . [because] [m]any citizens become
nervous during a traffic stop, even when they have nothing to hide or fear.” United States v
Richardson, 385 F3d 625, 630-631 (CA 6, 2004); see also United States v Simpson, 609 F3d 1140,
1147 (CA 10, 2010) (stating that “[n]ervousness is of limited value in assessing reasonable
suspicion” because it is a common behavior, even for law-abiding citizens, “when confronted by
a law enforcement officer” and “it is natural for a motorist to become more agitated as a stop is
prolonged and particularly when the officer seems skeptical or suspicious”). Rather, “[a]n officer
testifying that he inferred on the basis of his experience and training is obliged to articulate how
the behavior that he observed suggested, in light of his experience and training, an inference of
criminal activity.” People v LoCicero, 453 Mich 496, 505-506; 556 NW2d 498 (1996).
Other than reporting defendant’s alleged “furtive” gesture and that he appeared “a little
nervous,” Esposito did not sufficiently articulate how, based on his training and experience, these
behaviors lead him to believe defendant or the driver were engaged in criminal activity.2 Thus,
2
Esposito testified:
[The prosecutor]: So based off your training and experience, did that
concern you that you were observing furtive gestures from the passenger in the
vehicle, the defendant?
A. It did.
[The prosecutor]: And why is that?
A. I wasn’t sure what he was doing, what he was hiding, retrieving, just I
wasn’t sure.
[The prosecutor]: And did you make any other observations about his
behavior at any point?
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the trial court did not err in concluding it was an unreasonable seizure because there is evidence
showing the original purpose for the stop was resolved, or reasonably should have been resolved,
and there is no evidence in the record demonstrating new facts which give rise to reasonable
suspicion of additional criminal activity. Consequently, it was also not error for the trial court to
suppress the evidence under the exclusionary rule because the trial court determined the evidence
flowed from an unreasonable seizure. Because the trial court did not err in suppressing the
evidence on the basis of an unreasonable seizure, it is unnecessary to consider the prosecution’s
additional arguments to the contrary, because they are premised on the supposition that Esposito’s
seizure of defendant was reasonable.3 Accordingly, I would affirm the trial court.
/s/ Stephen L. Borrello
A. I mean, he seemed a little nervous. I don’t entirely recall exactly his
demeanor.
3
I note that contrary to the prosecution’s argument, defendant has standing to challenge the
constitutionality of the traffic stop because passengers in vehicles are “seized, just as the driver is,
‘from the moment [a car stopped by the police comes] to a halt on the side of the road.’ ” Johnson,
555 US at 332 (alteration in original), quoting Brendlin v California, 551 US 249, 263; 127 S Ct
2400; 168 L Ed 2d 132 (2007).
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