People of Michigan v. Darius Dawan Powell

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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, 2020
Plaintiff-Appellee,
v No. 349193
Oakland Circuit Court
DARIUS DAWAN POWELL, LC No. 2018-267979-FH
Defendant-Appellant.
Before: BOONSTRA, P.J., and MARKEY and FORT HOOD, JJ.
PER CURIAM.
In August 2018, defendant was a passenger in a vehicle when the vehicle was pulled over
for having cracks in its windshield. Deputies noticed a firearm on the floor in front of defendant.
Defendant was placed in handcuffs and the firearm was seized. Deputies found that the firearm
was loaded, and subsequently found heroin and cocaine behind the handle of the door next to
which defendant was seated. Before trial, defendant moved to suppress the firearm and controlled
substances, but the motion was denied. Following a jury trial, defendant was convicted of being a
felon in possession (felon-in-possession) of a firearm, MCL 750.224(f)(2), felon-in-possession of
ammunition, MCL 750.224(f)(3), carrying a concealed weapon (CCW), MCL 750.227, two counts
of possession of less than 25 grams of a controlled substance, MCL 333.7403(2)(a)(v), and four
counts of possession of a firearm during the commission of a felony, third offense (felony-firearm),
MCL 750.227b(1). Defendant was sentenced to 9 to 15 years’ imprisonment for his felon-in-
possession and possession of a controlled substance convictions, 253 days in jail for his CCW
conviction, and 10 years’ imprisonment to run consecutive to his other sentences for his felony-
firearm convictions. Defendant contends on appeal that the trial court erred in denying his motion
to suppress. He specifically argues that he was denied his Fourth Amendment right to be free from
unreasonable searches and seizures because his detainment emanated from a pretextual traffic stop
and the deputies had no reasonable suspicion to detain or search him. We disagree and affirm.
“Application of the exclusionary rule to a Fourth Amendment violation is a question of law
that is reviewed de novo.” People v Jenkins, 472 Mich. 26, 31; 691 NW2d 759 (2005). Factual
findings with respect to a motion to suppress are reviewed for clear error. Id. “A finding is clearly
erroneous when, although there is evidence to support it, the reviewing court is left with a definite
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and firm conviction that a mistake has been made.” People v Stricklin, 327 Mich. App. 592, 598;
935 NW2d 59 (2019) (quotation marks and citation omitted).
“The right of the people to be secure in their persons . . . and effects, against unreasonable
searches and seizures, shall not be violated . . . .” US Const, Am IV.1 See also Const 1963, art 1,
§ 11. “Searches and seizures conducted without a warrant are unreasonable per se, subject to
several specifically established and well-delineated exceptions.” People v Champion, 452 Mich.
92, 98; 549 NW2d 849 (1996). Additionally, “seizures are reasonable for purposes of the Fourth
Amendment only if based on probable cause.” People v Lewis, 251 Mich. App. 58, 69; 649 NW2d
792 (2002). However, “a police officer may stop and detain a motor vehicle on the basis of an
articulable and reasonable suspicion that the vehicle or one of its occupants is violating the law,
including a law regulating equipment.” People v Dillon, 296 Mich. App. 506, 508; 822 NW2d 611
(2012).2 “[W]hether there was reasonable suspicion to justify a stop must be made on a case-by-
case basis, evaluated under the totality of the circumstances, and based on common sense.” Id.
Notably, “[t]he subjective intent of [a] police officer is irrelevant to the validity of the stop.” Id.
at 509.
First, we can discern no error from the trial court’s determination that the stop of the vehicle
in this case was lawful, and accordingly, the initial detainment of defendant himself was lawful.
See Brendlin v California, 551 U.S. 249, 255-259; 127 S. Ct. 2400; 168 L. Ed. 2d 132 (2007)
(explaining that a traffic stop of a vehicle is a seizure of the driver and all passengers). Deputies
testified that they saw cracks in the windshield of the vehicle in which defendant was a passenger,
which gave the deputies “an articulable and reasonable suspicion that the vehicle or one of its
occupants [was] violating . . . a law regulating equipment.” Dillon, 296 Mich. App. at 508.
Moreover, even if, as defendant suggests, the deputies’ subjective intent was to stop defendant for
some other reason, because the stop of the vehicle was justified by reasonable suspicion of
defective equipment, the temporary seizure of defendant was lawful. See Whren v United States,
517 U.S. 806, 813; 116 S. Ct. 1769; 135 L. Ed. 2d 89 (1996) (explaining that subjective intent is not
relevant to the objective validity of a stop). See also People v Corr, 287 Mich. App. 499, 507; 788
NW2d 860 (2010) (explaining that the temporary seizure of a driver and passengers remains
reasonable for the duration of a valid stop).
Further, we also discern no error from the trial court’s conclusion that the seizure of the
firearm and controlled substances was proper. At best, the deputies had probable cause on the
basis of defendant’s actions, and at worst, the plain-view exception to the warrant requirement
applied. “The plain[-]view doctrine allows police officers to seize, without a warrant, items in
plain view if the officers are lawfully in a position from which they view the item, and if the item’s
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The Fourth Amendment was incorporated against the states in Mapp v Ohio, 367 U.S. 643; 81 S
Ct 1684; 6 L. Ed. 2d 1081 (1961). People v Slaughter, 489 Mich. 302, 310 n 13; 803 NW2d 171
(2011). Additionally, “the Michigan Constitution is to be construed to provide the same protection
as that secured by the Fourth Amendment, absent compelling reason to impose a different
interpretation.” Id. at 311 (quotation marks and citation omitted).
2
The equipment on vehicles must be maintained according to law. MCL 257.683(2).
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incriminating character is immediately apparent.” People v Wilkens, 267 Mich. App. 728, 733; 705
NW2d 728 (2005) (quotation marks and citation omitted). An item’s incriminating character is
immediately apparent if “without further search the officers have probable cause to believe the
items are seizable.” People v Mahdi, 317 Mich. App. 446, 462; 894 NW2d 732 (2016), quoting
Champion, 452 Mich. at 102 (quotation marks omitted).
Here, having lawfully stopped the vehicle in which defendant was a passenger, one deputy
testified that he saw defendant move in such a way that led him to believe that defendant was
armed, and another deputy saw the firearm on the floor in front of defendant.3 Where one officer
was able to view the weapon in plain view, and another observed that defendant may have been
attempting to conceal the same, we cannot conclude that the trial court erred when it determined
that the seizure was permissible. Additionally, with specific respect to the controlled substances,
we note testimony that, after defendant was removed from the vehicle and the firearm was seized,
the deputy saw what he believed to be drugs behind the handle of defendant’s door. Again, where
the deputy was lawfully in a position from which controlled substances were in plain view, we
cannot conclude that the trial court erred in concluding that the evidence was admissible at trial.
We note defendant’s contention that his conduct was “not necessarily indicative of criminal
behavior,” and thus, the deputies had no right to remove him from the vehicle. “[A] police officer
may, consistent with the Fourth Amendment of the federal constitution, order a passenger to get
out of a motor vehicle stopped during a routine traffic stop under the same circumstances in which
the officer may order the driver to get out of the vehicle.” People v Martinez, 187 Mich. App. 160,
168; 466 NW2d 380 (1991). See also Maryland v Wilson, 519 U.S. 408, 410; 117 S. Ct. 882; 137 L
Ed 2d 41 (1997) (holding that a police officer may order a passenger of a lawfully stopped vehicle
to exit the vehicle “as a matter of course”). The deputies in this case were permitted to order
defendant out of the vehicle to ensure their own safety, regardless of whether defendant’s conduct
was indicative of criminal behavior. Id. And, once again, we note that this argument has little
impact on the legality of the deputies’ seizures of the firearm and controlled substances because
the firearm was in plain view before the deputies removed defendant from the vehicle, and the
drugs were in plain view once the deputies opened the door to seize the firearm.
Affirmed.
/s/ Mark T. Boonstra
/s/ Jane E. Markey
/s/ Karen M. Fort Hood
3
Plaintiff notes in his brief on appeal that whether plaintiff was acting suspiciously was disputed
at trial. This is not sufficient to establish clear error, and we note that are not left with a definite
and firm conviction that a mistake was made. See Stricklin, 327 Mich. App. at 598
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