                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    January 19, 2016
               Plaintiff-Appellee,

v                                                                   No. 323727
                                                                    Branch Circuit Court
STEVEN DUANE DENT, a/k/a JAMES                                      LC No. 07-048753-FC
WALKER,

               Defendant-Appellant.


Before: BOONSTRA, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

        Defendant appeals as of right his bench trial convictions of possession with intent to
deliver 1,000 or more grams of cocaine, MCL 333.7401(2)(a)(i); resisting and obstructing a
police officer, MCL 750.81d(1); and providing false identification, MCL 257.324(1)(a). The
trial court sentenced defendant to 270 months to 40 years’ imprisonment for possession with
intent to deliver, 16 to 24 months’ imprisonment for resisting and obstructing, and 90 days in jail
for providing false identification. We affirm defendant’s convictions, but remand for
proceedings consistent with this opinion.

        Defendant argues that the trial court erred in denying his motion to suppress the evidence
obtained after a traffic stop, i.e., approximately 13 kilograms of cocaine, on the grounds that (1)
the initial stop was unconstitutional and (2) he was detained for an unreasonable length of time.
We disagree.

       “A trial court’s findings of fact on a motion to suppress are reviewed for clear error,
while the ultimate decision on the motion is reviewed de novo.” People v Hrlic, 277 Mich App
260, 262-263; 744 NW2d 221 (2007). Questions of statutory interpretation are reviewed de
novo. See People v Zubke, 469 Mich 80, 83; 664 NW2d 751 (2003).

              The Fourth Amendment of the United States Constitution and its
       counterpart in the Michigan Constitution guarantee the right of persons to be
       secure against unreasonable searches and seizures.

                                              ***



                                                -1-
                 An investigatory stop, which is limited to a brief and nonintrusive
        detention, constitutes a Fourth Amendment seizure. In order to effectuate a valid
        traffic stop, a police officer must have an articulable and reasonable suspicion that
        a vehicle or one of its occupants is subject to seizure for a violation of law. The
        reasonableness of an officer’s suspicion is determined on a case-by-case basis in
        light of the totality of the facts and circumstances and specific reasonable
        inferences he is entitled to draw from the facts in light of his experience. [People
        v Jones, 260 Mich App 424, 428-429; 678 NW2d 627 (2004) (quotation marks
        and citations omitted).]

See also People v Dillon, 296 Mich App 506, 509; 822 NW2d 611 (2012) (“A court is required
to suppress evidence otherwise lawfully seized during a traffic stop only if the officer did not
have reasonable suspicion to justify the stop.”). “Any traffic violation, however minor, provides
probable cause for a traffic stop.” United States v Bloomfield, 40 F3d 910, 915 (CA 8, 1994).1

       Michigan State Police Trooper Matthew Unterbrink testified at the evidentiary hearing on
defendant’s motion that he stopped defendant’s vehicle on I-69 during daylight hours because he
believed that the vehicle had a headlight out. It was later revealed that the non-operational light
was actually a “daytime running light” and that defendant’s headlights had been turned off.
Defendant argues that Michigan law does not require two working headlights during daylight
hours and, therefore, Unterbrink could not have had reasonable suspicion to stop his vehicle.

        MCL 257.685(1) requires all motor vehicles to “be equipped with at least 2 head lamps
with at least 1 head lamp on each side of the front of the vehicle . . . .” MCL 257.699(1)(a)
requires those head lamps to “in all cases emit a white light.” MCL 257.683(1) provides in part
that, “A person shall not drive . . . on a highway a vehicle . . . that . . . is not at all times equipped
with lamps and other equipment in proper condition and adjustment as required in sections
[MCL 257.]683 to 711.” (Emphasis added.) Accordingly, Michigan law requires that all motor
vehicles driven on public highways must be equipped at all times with two working headlights,
and operating a motor vehicle on a public highway at any time with only one working headlight
is a civil infraction. MCL 257.683(6). Thus, the trial court did not err in ruling that driving
without two working headlights, even during daylight hours, is a traffic infraction sufficient to
allow a law enforcement officer to stop a motor vehicle. Bloomfield, 40 F3d at 915.

       In determining whether the traffic stop was legal, the question is not whether defendant
was actually violating the law, but whether, under the totality of the facts and circumstances,
Unterbrink had a reasonable suspicion that defendant was in violation of the law. Jones, 260
Mich App at 428-429. We conclude that the trial court did not clearly err in finding that
Unterbrink had such a reasonable suspicion. The trial court credited Unterbrink’s testimony that
he believed defendant had a headlight out, a determination to which this Court defers. See
People v Dagwan, 269 Mich App 338, 342; 711 NW2d 386 (2005). Moreover, in viewing the


1
  Although not binding precedent, lower court federal decisions may be deemed helpful in
deciding issues before this Court. See People v Hyde, 258 Mich App 428, 443; 775 NW2d 833
(2009).

                                                   -2-
pictures of the front of defendant’s vehicle admitted at the hearing, the daytime running lights
and headlights are located very close to each other and appear to emit the same color of light.
Unterbrink’s brief glance, through a rearview mirror, of a vehicle presumably traveling at
highway speed, was unlikely to reveal which of the two lights was actually out. Unterbrink
testified that he saw a vehicle with one headlight on and one headlight off. If the non-operational
light was a headlight, defendant would have been in violation of Michigan law. Accordingly, the
trial court did not clearly err in finding that Unterbrink had a reasonable suspicion that defendant
was committing a traffic infraction sufficient to justify the initial traffic stop.

       Defendant’s argument to the contrary relies on MCL 257.684(a), which provides in part:

              Every vehicle upon a highway within this state at any time from a half
       hour after sunset to a half hour before sunrise and at any other time when there is
       not sufficient light to render clearly discernible persons and vehicles on the
       highway at a distance of 500 feet ahead shall display lighted lamps and
       illuminating devices as hereinafter respectively required for different classes of
       vehicles . . . .

The parties appear to agree that, at the time defendant’s vehicle was stopped, motorists were not
required to have their headlights on pursuant to this statute. However, as discussed, the Motor
Vehicle Code requires that motor vehicles, at all times, have two headlights capable of emitting
white light. Unterbrink believed that defendant’s vehicle did not have equipment capable of
performing this task, which would constitute a civil infraction sufficient to allow him to stop
defendant’s vehicle. By contrast, defendant would have violated MCL 257.684(1) if he were
required to have his headlights on because of the time of day, but did not. Defendant was
stopped for suspicion of violating MCL 257.683(1), which requires motor vehicles to possess
two working headlights at all times. Unterbrink acknowledged that it was ultimately revealed
that he was factually mistaken that defendant had a headlight out and that only a daytime running
light was out. However, after reviewing the record, the trial court did not clearly err in its
implied conclusion that Unterbrink’s mistake of fact was reasonable, and such a reasonable
mistake does not render a traffic stop violative of the Fourth Amendment. See Heien v North
Carolina, ___ US ___; 135 S Ct 530, 536; 190 L Ed 2d 475 (2014). Accordingly, the trial court
did not err in denying defendant’s motion to dismiss on the grounds that the initial traffic stop
was unlawful.

       Defendant also argues that he was detained longer than necessary to investigate his
allegedly deficient headlight and, therefore, the recovered evidence must be suppressed. We
disagree.

        “A seizure for a traffic violation justifies a police investigation of that violation.”
Rodriguez v United States, ___ US ___; 135 S Ct 1609, 1614; 191 L Ed 2d 492 (2015) (quotation
marks and citations omitted). “Because addressing the infraction is the purpose of the stop, it
may last no longer than is necessary to effectuate that purpose.” Id. However, if some
independent reasonable suspicion that criminal activity is afoot arises, prolonging the detention
to investigate the new suspicion is appropriate. Id. at 1614-1617; People v Lewis, 251 Mich App
58, 70-73; 649 NW2d 792 (2002). “[A]n officer is free to ask traffic-related questions, and
questions about a driver’s identity, business and travel plans during the course of a traffic stop.”

                                                -3-
United States v Hill, 195 F3d 258, 268 (CA 6, 1999) (quotation marks and citation omitted). “In
a traffic stop, an officer can lawfully detain the driver of a vehicle until after the officer has
finished making record radio checks and issuing a citation, because this activity would be well
within the bounds of the initial stop.” United States v Bell, 555 F3d 535, 541 (CA 6, 2009)
(quotation marks and citations omitted).

        As discussed, Unterbrink’s initial stop of defendant was lawful. As part of that lawful
stop, Unterbrink was allowed to request defendant’s driver’s license and registration and conduct
radio checks of them. At the evidentiary hearing, Unterbrink testified that he went to arrest
defendant, and thus end the traffic stop, when he learned over the radio that defendant had likely
presented him with false identification. In other words, based on Unterbrink’s testimony at the
evidentiary hearing, defendant was not detained longer than it took Unterbrink, and his
colleagues, to conduct radio checks. Such checks are explicitly “within the bounds of the initial
stop.” Id. There is no indication in the record that law enforcement personnel delayed the
checks or otherwise extended the stop beyond time required to conduct the allowable radio
checks. Accordingly, the trial court did not clearly err in finding that defendant’s detention was
not of an unreasonable length nor err in denying his motion to suppress on this basis.2

       Defendant next argues on appeal that the trial court erred in denying his motion to
dismiss count I of the information, possession with intent to deliver, on statutory double jeopardy
grounds. We disagree.

       Generally, this Court reviews for an abuse of discretion a trial court’s decision on a
motion to dismiss. People v Adams, 232 Mich App 128, 132; 591 NW2d 44 (1998). However,
“[w]e review de novo a trial court’s decision that involves statutory interpretation [of MCL
333.7409].” Zubke, 469 Mich at 83.

        Defendant was found guilty by the trial court of possession with intent to deliver and
scheduled for sentencing on November 21, 2008. Defendant failed to appear and remained at
large until 2012. In March 2010, defendant was indicted on the federal charge of conspiracy to
distribute more than five kilograms of cocaine, 21 USC 841(a)(1); 21 USC 846; arising from the
subject traffic stop. Defendant pleaded guilty to this charge in 2014 and was sentenced to 20
years in federal prison.3 The trial court finally sentenced defendant October 2014.




2
  We reject defendant’s argument that Unterbrink was motivated to stop and arrest him solely
because he is African-American. There is simply no evidence in the record to support
defendant’s racial profiling accusation and, in any event, Unterbrink’s subjective motivations are
irrelevant to the instant inquiries. Whren v United States, 517 US 806, 812-813; 116 S Ct 1769;
135 L Ed 2d 89 (1996).
3
    See United States v Dent, 599 Fed Appx 584 (CA 6, 2015).
4
    United States v Crosby, 397 F3d 103 (CA 3, 2005).

                                                -4-
       MCL 333.7409 provides:

               If a violation of this article [i.e., the controlled-substances act] is a
       violation of a federal law or the law of another state, a conviction or acquittal
       under federal law or the law of another state for the same act is a bar to
       prosecution in this state.

        Defendant is not entitled to relief under this statute for two reasons. First, defendant
created the potential for error by failing to appear for his scheduled sentencing. Had defendant
appeared and been sentenced on that date, approximately 14 months before his federal
indictment, there could not possibly have been a federal conviction for the same act prior to the
completion of state trial court proceedings. Second, when defendant was convicted of
possession with intent to deliver, his “prosecution” was complete; all that remained was the
sentencing phase. Because sentencing is not part of the “prosecution,” the statute does not serve
as a bar to defendant’s state sentence for possession with intent to distribute. See People v
Washington, 461 Mich 294; 602 NW2d 824 (1999) (holding that a defendant is not entitled to
relief under MCL 333.7409 when he created the potential for error by failing to appear for
sentencing, and that the “prosecution” of a defendant is complete when he is convicted of the
subject charge, not when he is sentenced).

       Finally, defendant argues that he is entitled to a Crosby4 remand in light of our Supreme
Court’s opinion in People v Lockridge, 498 Mich 358; ___ NW2d ___ (2015).5 We agree.

       Because defendant raised his Lockridge argument at sentencing, his claim “is subject to
the harmless beyond a reasonable doubt test.” People v Terrell, ___ Mich App ___; ___ NW2d
___ (September 29, 2015; Docket No. 321573), slip op at 8.

        In Lockridge, 498 Mich at 364, the Supreme Court held that recent United States
Supreme Court decisions apply “to Michigan’s sentencing guidelines and render[] them
constitutionally deficient.” That is, “to the extent that OVs scored on the basis of facts not
admitted by the defendant or necessarily found by the jury verdict increase the floor of the
guidelines range, i.e the defendant’s ‘mandatory minimum’ sentence, that procedure violates the
Sixth Amendment.” Id. at 373-374. Accordingly, the Supreme Court held that the sentencing
guidelines are advisory only, but that a trial court must still “determine the applicable guidelines
range and take it into account when imposing a sentence.” Id. at 365.

       In Terrell, slip op at 9-10, this Court held that, “regardless of the fact that judicial fact-
finding did not increase defendant’s minimum sentence guidelines range, the trial court’s
compulsory use of the guidelines was erroneous in light of Lockridge.” Such is the case here;
defendant’s minimum sentence range was not altered by impermissible judicial fact-finding
5
  We reject the prosecution’s argument that defendant is precluded from arguing Lockridge
because he would not have been able to do so had he appeared at his originally scheduled
sentencing in 2008.




                                                -5-
because defendant’s conviction for possession with intent to deliver 1,000 or more grams of
cocaine provided sufficient facts to score 100 points under OV 15, placing defendant at OV
Level VI. MCL 777.62. Nonetheless, because the guidelines were mandatory when the trial
court sentenced defendant, under Terrell, a Crosby remand consistent with the procedure
described in Lockridge is required. Id.

        Defendant’s convictions are affirmed. With regard to defendant’s sentences, we remand
for proceedings consistent with this opinion. We do not retain jurisdiction.



                                                         /s/ Mark T. Boonstra
                                                         /s/ David H. Sawyer
                                                         /s/ Jane E. Markey




                                             -6-
