People of Michigan v. Joseph John Blair Jr ( 2019 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 29, 2019
Plaintiff-Appellee,
v No. 347885
Berrien Circuit Court
JOSEPH JOHN BLAIR, JR., LC No. 2018-016211-FH
Defendant-Appellant.
Before: SWARTZLE, P.J., and GLEICHER and M. J. KELLY, JJ.
PER CURIAM.
The question presented is whether the police constitutionally seized and searched
defendant Joseph Blair’s car after arresting him for driving with a suspended license. The trial
court denied Blair’s motion to suppress the evidence found during the search, ruling that the
community-caretaking exception to the warrant requirement authorized the police to impound
the car and to perform an inventory search of its contents.
Blair’s car was legally parked in a Walmart parking lot and was not impeding traffic.
Nor was it impounded for a reason related to any community-caretaking function. We reverse.
I
While on road patrol at 1:30 a.m., Berrien County Sheriff’s Deputy Jared Phillips spotted
a vehicle with its license plate light dangling in front of the plate. The vehicle drove into a
Walmart parking lot and Phillips followed. Phillips turned on his flashing lights and the car
pulled into a parking space at the farthest end of the lot, a considerable distance from the
customer entrance. The large parking lot was “very empty,” Phillips later testified.
As Phillips approached the vehicle, defendant Joseph Blair immediately rolled down the
driver’s side window and announced that his license was suspended. He produced an
identification card issued by the Department of Corrections. On Phillips’s command, Blair
submitted to a pat-down search yielding only a pocket knife. Blair then accompanied Phillips to
the patrol car. Blair sat in the back seat while Phillips confirmed Blair’s license suspension.
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Phillips also learned that there were two outstanding warrants for Blair’s arrest. Before placing
Blair in handcuffs, Phillips asked for permission to search Blair’s car. Blair refused.
Phillips returned to the vehicle and engaged its female passenger in conversation; among
other things, he inquired whether there was “anything illegal in the car.” She denied knowledge
of contraband. “What kind of drugs does Joseph do? . . . He’s got a couple of drug charges,”
Phillips persisted. The passenger’s license, too, was suspended, and Phillips allowed her to walk
away. Phillips returned to the patrol car and informed Blair, “We are probably going to search
the vehicle, okay, because you have a suspended license, okay, out of Michigan. And she’s also
suspended.”
Another deputy arrived on the scene. Phillips repeatedly entreated Blair to consent to a
search: “Do you mind if we just double check the vehicle to make sure there’s nothing in there?”
was followed by “I’m asking for consent,” and “If I tow the vehicle I have to search.” Blair
declined each invitation. Phillips also tried, “Joseph, what’s in the car?” After Blair’s second
refusal, Phillips commented to the other deputy, “So there’s probably something in the car that
shouldn’t be.”
The officers impounded and searched Blair’s car. They found a variety of illegal
narcotics, a pistol, and a loaded Colt revolver. The prosecutor charged Blair with
delivery/manufacture of methamphetamine, MCL 333.4701(2)(b)(i); delivery/manufacture of a
Schedule 4 controlled substance, MCL 333.4701(2)(c); two counts of carrying a concealed
weapon in an automobile, MCL 750.227; one count each of possession of a firearm by a felon,
MCL 750.224f; receiving and concealing a stolen firearm, MCL 750.535b; and possession of a
firearm during the commission of a felony, MCL 750.227b.
II
Blair filed a motion to suppress the weapon and drug evidence, contending that the search
violated the Sheriff’s Department policy governing vehicle impoundment and towing.
Additionally, Blair argued, the search was pretextual and Phillips acted in bad faith. The circuit
court conducted an evidentiary hearing at which only Phillips testified.
The prosecution implicitly conceded that the deputies lacked probable cause or
reasonable suspicion to search Blair’s automobile, and instead justified the car’s impoundment
and search on the community-caretaking exception to the warrant requirement; the prosecution
maintains that position on appeal. The community-caretaking doctrine permits the police to
seize vehicles for reasons related to public and police safety, to prevent the car from impeding
the flow of traffic, and to reduce the risk that a car left unattended might be vandalized and the
public jeopardized or the police held responsible. The United States Supreme Court has
described the following reasonable bases for an impoundment:
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. To permit the
uninterrupted flow of traffic and in some circumstances to preserve evidence,
disabled or damaged vehicles will often be removed from the highways or streets
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at the behest of police engaged solely in caretaking and traffic-control activities.
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. [South Dakota v Opperman, 428 US 364, 368-
369; 96 S Ct 3092; 49 L Ed 2d 1000 (1976) (citation omitted).]
When a car is constitutionally impounded, the police may perform an inventory search of
its contents. The justifications for a search and inventory differ from those legitimizing the
impoundment itself. The Opperman Court explained that when vehicles are impounded, the
police “generally follow a routine practice of securing and inventorying the automobiles’
contents.” Id. at 369. These police procedures serve “three distinct needs”: protecting the
vehicle owner’s property while the vehicle remains in police custody; protecting the police
against claims for lost or stolen property, and protecting the police from possible danger. Id.Our Supreme Court has echoed that the impoundment must be proper to justify a
warrantless search of a car. The validity of an inventory search of a vehicle depends on whether
the vehicle was lawfully impounded and the search was conducted by the police in accordance
with standardized departure procedures. People v Toohey, 438 Mich 265, 284-285; 475 NW2d
16 (1991). The Court emphasized in Toohey that inventory searches of impounded vehicles are
reasonable to the extent they conform to standard police procedures and the principles
underlying the community-caretaking function. Id. at 275-276.
The community-caretaking function is distinct from another law enforcement purpose:
the investigation of crime. “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). “The goal 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.’ ” People v Poole, 199 Mich App 261, 266; 501
NW2d 265 (1993), quoting Florida v Wells, 495 US 1, 4; 110 S Ct 1632; 109 L Ed 2d 1 (1990).
The United States Supreme Court, too, has underscored that the community-caretaking function
affords an officer with discretion to impound and search a vehicle “so long as that discretion is
exercised according to standard criteria and on the basis of something other than suspicion of
evidence of criminal activity.” Colorado v Bertine, 479 US 367, 375; 107 S Ct 738; 93 L Ed 2d
739 (1987).
MCL 257.252d governs the ability of a police agency to remove vehicles from public and
private property. The impoundment policy of the Berrien County Sheriff’s Department
incorporates this statute. MCL 257.252d(1) provides in relevant part:
A police agency or a governmental agency designated by the police
agency may provide for the immediate removal of a vehicle from public or private
property to a place of safekeeping at the expense of the last-titled owner of the
vehicle in any of the following circumstances:
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* * *
(e) If the vehicle must be seized to preserve evidence of a crime, or if there
is reasonable cause to believe that the vehicle was used in the commission of a
crime.
* * *
(g) If the vehicle is hampering the use of private property by the owner or
person in charge of that property or is parked in a manner that impedes the
movement of another vehicle.
The Berrien County Sheriff Policy and Procedures governing motor vehicle towing and
impounding states:
III. TOWING MOTOR VEHICLES
A. [MCL] 257.252d of the Michigan Vehicle Code gives police
officers the authority to immediately remove vehicles from private or public
property.
B. This Section also describes the circumstances, which must be
present in order to invoke this portion of the vehicle code. Below, in abbreviated
terms, are those circumstances:
* * *
5. If the vehicle must be seized to preserve evidence of a crime, or
when there is reasonable cause to believe the vehicle was used in the commission
of a crime. In order to invoke this portion of the section, officers should
remember that you must establish that a crime has occurred or in [sic] occurring.
* * *
7. If the vehicle hampers the use of private property or impedes the
movement of another vehicle.
* * *
Miscellaneous
* * *
3. If improper use of registration plates is determined, the officers
must remember that even though they have seized the registration plate from a
vehicle as evidence, and the vehicle is no longer licensed, one of the
circumstances outlined in [MCL] 257.252d of the Michigan Motor Vehicle Code
must be present before an impound can be justified. If the vehicle is legally
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parked and does not create a hazard, or fall within any of the other circumstances
necessary to justify an impound, an impound cannot be effected.
4. The same principles apply to situations where a driver is arrested.
An arrest does not automatically justify an impound. The outlined criteria as
found in [MCL] 257.252d of the Michigan Motor Vehicle Code must still be met.
Unusual Situations
In a situation where:
1. a vehicle was stopped for improper plates
2. the driver of a vehicle is arrested and an officer cannot legally impound
the officer shall immediately tag the vehicle for 48 hours and treat the vehicle as
any other abandoned vehicle that has been tagged for 48 hours.
V. EXCEPTIONS TO TOWING AND IMPOUNDING
A. It may not be necessary to tow and/or impound a vehicle when there is
another driver that the owner is willing to release the vehicle to and the vehicle is
in operational condition. This person:
1. Must be a licensed driver and have a valid driver’s license in
his/her possession.
2. Must be present at the scene or able to arrive within a reasonable
length of time.
3. Should not appear to be intoxicated.
4. Should not be involved in the arrest of the driver.
B. It may not be necessary to tow and/or impound, depending on the
circumstances of the investigation, when the vehicle is within the immediate
vicinity of the owner’s home or business.
C. It may not be necessary to tow and/or impound if other acceptable
arrangements are made by the owner such as:
1. Wrecker called by owner or driver prior to officer’s arrival at the
scene.
2. Wrecker must arrive within a reasonable amount of time.
D. It may not be necessary to impound if the vehicle is, or can be, legally
parked and does not create a hazard to traffic.
E. Impoundment may not be necessary to preserve the desired evidence. For
example, photographs may suffice and thus eliminate the need for impoundment.
F. The above alternatives to impounding shall be considered and/or
implemented whenever reasonable under the circumstances.
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In the trial court, the prosecution contended that two sections of Berrien’s policy
authorized Phillips to impound and search Blair’s car: that the vehicle was “used in the
commission of a crime” under III(B)(5), and that it “hamper[ed] the use of private property”
under III(B)(7).
The trial court denied the motion to suppress, finding that the vehicle was properly
impounded pursuant to MCL 257.252d(1)(g). The court explained:
The Court does find that in this instance the vehicle driven by Mr. Blair
and ultimately parked on private property in a parking lot did hamper the use of
that property. The language in the Berrien County Sheriff’s Department policy
does not qualify was [sic] to significant hampering or slight hampering. It simply
says hamper. And it’s just common sense that when there’s a vehicle parked in
your parking lot that’s not a business invitee and it could be there for, as Ms.
Wainwright [the prosecutor] put it out a significant period of time. That would
create a hampering of the use of that private property.
The Officer further pointed out that he was there in the middle of the
night. The level of hampering of the use of that private property would likely be
enhanced during normal, regular, daylight, business hours, when the store would
naturally be more – more busy. Other types of activities occurred in parking lots
like this there clear [sic] within the discretion and control of the owner of the
property.
So I do find that the inventory search was properly conducted pursuant to
a routine administrative policy.
Prompted by the prosecutor, the judge also found that MCL 257.252d(1)(e) “potentially”
authorized impoundment because “the vehicle was being used to commit a crime, driving with a
suspended license.” The court noted, however, that subparagraph 7 provided the “strongest”
support for the impoundment. We granted Blair’s application for leave to appeal. People v
Blair, Jr, unpublished order of the Court of Appeals, entered April 25, 2019 (Docket No.
347885).
III
We review the trial court’s findings of fact for clear error, and consider de novo both
questions of law relevant to the suppression motion and the judge’s ultimate decision. People v
Unger, 278 Mich App 210, 243; 749 NW2d 272 (2008); People v Darwich, 226 Mich App 635,
637; 575 NW2d 44 (1997). In assessing the constitutionality of the search and seizure of Blair’s
car, we must examine “all the facts and circumstances” to determine whether the police acted
reasonably. People v Krezen, 427 Mich 681, 684; 397 NW2d 803 (1986) (BOYLE, J.) (quotation
marks and citations omitted).
The trial court clearly erred in finding that Blair’s car was “hamper[ing]” the use of
private property, as no evidence supported this finding. The trial court also erred in determining
that the vehicle had to be seized “to preserve evidence of a crime,” or because the car “was used
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in the commission of a crime.” These grounds for impoundment are unrelated to a community
caretaking rationale. The Berrien County Sheriff Policy and Procedures and the circumstances
surrounding Phillip’s decision to impound the car demonstrate that the purpose of the seizure
was instead investigational. And because the officers lacked probable cause or reasonable
suspicion to seize the car, the resulting search contravened the Fourth Amendment.
A
Blair’s vehicle was legally parked in a designated parking space in a section of the
Walmart parking lot located at a considerable distance from the store’s entrance. Phillips
speculated that employees parked in the same area, but no evidence supported that the area was
actually designated for employee-only parking. Phillips admitted that the car “didn’t create a
hazard or obstruct traffic or anything like that,” and conceded that at the time of Blair’s arrest,
the policy’s “hampering” provision did not provide authority for his impoundment decision.
Moreover, the police remained with the vehicle for 20 minutes before searching it, and a
significant time after. During that interval no one associated with Walmart requested the
vehicle’s removal. And the Berrien County Sheriff’s Department policy expressly provides for
tagging a vehicle parked on private property and reported as abandoned, permitting
impoundment only after 48 hours have thereafter elapsed.1 Accordingly, section III(B)(7) did not
authorize the impoundment of Blair’s vehicle.
B
Phillips asserted that he impounded the car based on section III(B)(5) of the Berrien
County policy, which states:
If the vehicle must be seized to preserve evidence of a crime, or when there is
reasonable cause to believe the vehicle was used in the commission of a crime. In
order to invoke this portion of the section, officers should remember that you
must establish that a crime has occurred or in [sic] occurring.
Because Blair had committed the crime of driving with a suspended license, Phillips testified, the
policy permitted the vehicle’s impoundment.
We begin with the observation that an officer’s decision to impound a car pursuant to a
departmental policy does not automatically dictate that the seizure is reasonable under the Fourth
Amendment. A state or local government may promulgate policies governing searches and
seizures of private property, but may not “authorize police conduct which trenches upon Fourth
Amendment rights, regardless of the labels which it attaches to such conduct.” Sibron v New
York, 392 US 40, 61; 88 S Ct 1889; 20 L Ed 2d 917 (1968). When reviewing a state-authorized
search and seizure of private property, we must nevertheless determine whether the
government’s actions were “reasonable under the Fourth Amendment. Just as a search
1
This portion of the policy reflects that generally, it is a private property owner’s prerogative to
seek removal of an unattended vehicle.
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authorized by state law may be an unreasonable one under that amendment, so may a search not
expressly authorized by state law be justified as a constitutionally reasonable one.” Id.The United States Supreme Court has authorized noninvestigative seizures and searches,
but has “never implied in any way that searches and seizures conducted according to
standardized criteria prescribed by departmental policies are reasonable within the meaning of
the Fourth Amendment for that reason alone.” People v Brown, 415 P3d 815, 819, 2018 CO 27(CO, 2018). “An impoundment must either be supported by probable cause, or be consistent
with the police role as ‘caretaker’ of the streets and completely unrelated to an ongoing criminal
investigation.” United States v Duguay, 93 F3d 346, 352 (CA 7, 1996). Even when related to a
criminal investigation, the United States Supreme Court strictly cabined the power of the police
to conduct warrantless automobile searches in Arizona v Gant, 556 US 332, 351; 129 S Ct 1710;
173 L Ed 2d 485 (2009):
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.
Thus, a statute or policy cannot authorize an otherwise unconstitutional search and
seizure. That the police followed the statute and a written policy does not automatically shield
police action from Fourth Amendment scrutiny, and cannot override Constitutional protections.
And here, the Berrien County Sheriff Policy and Procedures itself casts doubt on Phillip’s ability
to impound Blair’s car based on his commission of the crime of driving with a suspended
license.2
Section III of the policy addresses “towing motor vehicles.” Paragraph 3 of this section
reinforces that the inability to drive a car from the scene of a traffic stop does not, standing alone,
supply a ground for seizure of the vehicle, even when the car cannot be driven because it lacks a
valid license plate:
If improper use of registration plates is determined, the officers must remember
that even though they have seized the registration plate from a vehicle as
evidence, and the vehicle is no longer licensed, one of the circumstances outlined
in [MCL] 257.252d of the Michigan Motor Vehicle Code must be present before
an impound can be justified.3 If the vehicle is legally parked and does not create
2
Driving with a suspended license is a misdemeanor. MCL 257.904(3). For the first violation
of this law, a person is subject to “imprisonment for not more than 93 days or a fine of not more
than $500, or both[.]” MCL 257.904(3)(a).
3
The improper use of a registration plate is a misdemeanor “punishable by imprisonment for not
more than 90 days, or by a fine of not more than $100, or both.” MCL 257.256(2).
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a hazard, or fall within any of the other circumstances necessary to justify an
impound, an impound cannot be effected. [Emphasis added.]
Nor does the driver’s arrest routinely require impoundment:
4. The same principles apply to situations where a driver is arrested. An
arrest does not automatically justify an impound. The outlined criteria as found
in [MCL] 257.252d of the Michigan Motor Vehicle Code must still be met.
[Emphasis added.]
Section V of the policy sets forth “Exceptions to Towing and Impounding.” Among
them are the following pertinent provisions:
D. It may not be necessary to impound if the vehicle is, or can be, legally
parked and does not create a hazard to traffic.
E. Impoundment may not be necessary to preserve the desired evidence. For
example, photographs may suffice and thus eliminate the need for impoundment.
F. The above alternatives to impounding shall be considered and/or
implemented whenever reasonable under the circumstances.
These provisions counsel that impoundment is unnecessary and contraindicated if based
solely on a driver’s arrest for having committed a crime, even if the vehicle “was used in the
commission of a crime” and may constitute “evidence” of the crime. And subsection F mandates
consideration of leaving a car in place “if it is reasonable to do so.” These restraints counsel that
even though a car cannot be driven at the time of arrest, if the vehicle is legally parked and
otherwise presents no risks, the vehicle’s owner must be afforded an opportunity to tow or
license it, or to retrieve its contents.
The Berrien County Sheriff Policy and Procedures aside, to pass constitutional muster an
impoundment conducted pursuant to the community-caretaking function must actually serve a
community-caretaking function. The first clause of the first sentence of section III(B)(5) (“If the
vehicle must be seized to preserve evidence of a crime”) advances a criminal investigation goal
rather than community caretaking. This provision corresponds to the automobile exception to
the warrant requirement, which authorizes officers to conduct “a warrantless search of an
automobile, based upon probable cause to believe that the vehicle contained evidence of crime in
the light of an exigency arising out of the likely disappearance of the vehicle[.]” California v
Acevedo, 500 US 565, 569; 111 S Ct 1982; 114 L Ed 2d 619 (1991). Rather than encapsulating a
community-caretaking purpose, the first sentence of section III(B)(5) codifies an entirely
different exception.
The second clause of the first sentence of Section III(B)(5) (“when there is reasonable
cause to believe the vehicle was used in the commission of a crime”) authorizes the
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impoundment and search of a vehicle any time the driver is arrested for a crime involving the use
of the vehicle.4 As applied to the facts of this case, however, the second clause is unrelated to
the community-caretaking function.
Inventory searches are exempt from the warrant requirement precisely because they are
“totally divorced from the detection, investigation, or acquisition of evidence relating to the
violation of a criminal statute.” Cady v Dombrowski, 413 US 433, 441; 93 S Ct 2523; 37 L Ed
2d 706 (1973). See also Opperman, 428 US at 370 n 5 (discussing the “noncriminal context” of
inventory searches and their “noninvestigative” nature); Gant, 556 US at 345 (observing that a
rule permitting the police to search a car’s passenger compartment and every container within it
“whenever an individual is caught committing a traffic offense, when there is no basis for
believing evidence of the offense might be found in the vehicle, creates a serious and recurring
threat to the privacy of countless individuals. Indeed, the character of that threat implicates the
central concern underlying the Fourth Amendment—the concern about giving police officers
unbridled discretion to rummage at will among a person’s private effects”). The seizure of
Blair’s car cannot be justified on community caretaking grounds, however, as according to
Phillips it was accomplished for the purposes related only to Blair’s “crime” of driving on a
suspended license.
The prosecution has not offered a rationale for seizing a vehicle based on the driver’s
lack of a valid driver’s license other than that the car possesses some evidentiary value. But this
ground for overcoming Blair’s Fourth Amendment right was rejected in Gant. “Gant was
arrested for driving with a suspended license—an offense for which police could not expect to
find evidence in the passenger compartment of Gant’s car.” Id. at 344. Obviously, the
prosecution did not need to possess the vehicle itself to prove that Blair drove on a suspended
license. Under the facts presented, the car itself had no evidentiary value. A different result
would obtain if, for example, the car was used in a hit-and-run and was a potential source of
forensic evidence, if the car was stolen, or if the police articulated a community-caretaking
purpose for seizure unrelated to a criminal investigation. Phillips’s testimony establishes that
the car’s impoundment had nothing to do with protecting the public or the police, and instead
was intended to advance the criminal case against Blair. And “evidence may not be introduced if
it was discovered by means of a seizure and search which were not reasonably related in scope to
the justification for their initiation.” Terry v Ohio, 392 US 1, 29; 88 S Ct 1868; 20 L Ed 2d 889(1968).
We stress that our ruling does not imply that Phillips acted in bad faith. To the contrary,
Phillips acted in conformity with a written procedure. But Phillips’ good faith is not relevant to
the determination of whether the impoundment of Blair’s car was constitutionally permissible.
Rather, “it is the caretaking function which legitimizes an inventory.” State v Kunkel, 455
NW2d 208, 211 (ND, 1990). See also State v Leak, 2016-Ohio-154, P37; 47 NE3d 821 (Ohio S
Ct, 2016) (“The fact that the arresting officer used established police procedure to conduct the
4
As discussed above, the policy carves out an exception to this rule for improper use of a
registration plate.
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inventory search does not overcome the unlawfulness of the impoundment in the first place.
This is precisely the type of governmental intrusion the Fourth Amendment seeks to prohibit.
Permitting the evidence to be used against Leak under the good-faith exception to the
exclusionary rule would eviscerate the purpose of the Fourth Amendment’s prohibition against
unreasonable searches and seizures.”).5
In a case presenting a Fourth Amendment question, the ultimate answer usually turns on
reasonableness. The community-caretaking function supplies a reasonable ground for the police
to impound cars that might otherwise threaten public or police safety. No such threat was
presented here. Blair’s car was legally parked and was seized for reasons that are fundamentally
inconsistent with community caretaking. Accordingly, impoundment of the car was
unreasonable and the search contravened the Fourth Amendment.
We reverse the circuit court’s order denying Blair’s motion to suppress, and remand for
further proceedings. We do not retain jurisdiction.
/s/ Brock A. Swartzle
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly
5
Phillips’s repeated and unsuccessful efforts to obtain consent to search the vehicle reinforce
that it was impounded for a purpose unrelated to community caretaking. “An inventory search
must not be a ruse for a general rummaging in order to discover incriminating evidence. The
policy or practice governing inventory searches should be designed to produce an inventory.
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.’ ” Florida v
Wells, 495 US 1, 4; 110 S Ct 1632; 109 L Ed 2d 1 (1990).
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