                          STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 8, 2019
               Plaintiff-Appellee,

v                                                                    No. 338762
                                                                     Isabella Circuit Court
MARC VALENTINO BARRERA,                                              LC No. 2016-002389-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and JANSEN and GADOLA, JJ.

BOONSTRA, P.J. (concurring).

        The police officers’ instincts proved to be correct in this case. But instincts alone do not
probable cause make. In the circumstances of this case, the officers should have sought a
warrant. I therefore concur with the majority in reversing defendant’s conviction and vacating
his sentence.

        While surveilling a known drug house, to which police had responded on many earlier
occasions, they observed a vehicle parked in the driveway. The vehicle also was known to
police, as they had pulled it over on many prior occasions, including in this very neighborhood.
On at least two of those occasions, drugs were found in the vehicle. On both of those occasions,
Edison Pelcher had been a passenger in the vehicle—as he was in this case. The owner of the
vehicle did not have a driver’s license. The driver of the vehicle, Juaquin Garcia, was
unlicensed. Another passenger in the vehicle, Morgan Guerrero, initially lied about her identity
by giving police her sister’s name; police subsequently determined her identity after Pelcher
referred to her as “Morgan” and described defendant as her boyfriend. Police discovered that
there were three outstanding warrants for Guerrero’s arrest. Pelcher was a parolee and was
intoxicated, in violation of the conditions of his parole. Defendant declined to identify himself.1

        Was something illegal afoot? Well, at a minimum, there was the apparent traffic
violation for which the officers had pulled over the vehicle. Garcia was driving the vehicle



1
 In fact, defendant appears to have misled officers with assertions suggesting that he held tribal
membership.


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without a license. And Guerrero was the subject of three outstanding arrest warrants. Garcia and
Guerrero were therefore placed under arrest.2

        But given the officers’ base of knowledge about the known drug house at which the
vehicle had been parked, the prior drug confiscations from this very vehicle, Pelcher’s presence
in the vehicle both on those occasions and on this occasion, and defendant’s refusal to identify
himself, the officers suspected more. That suspicion was a reasonable one, inasmuch as it hardly
strains credulity to believe, under the circumstances presented to the officers, that drugs very
likely were present in the vehicle on this occasion as well. While there still may be room for
argument about whether there was a proper basis for the officers to conduct an initial pat-down
search of defendant, I (like the majority) assume for purposes of analysis that there was.

        The pat-down search revealed a bulge in defendant’s pocket that turned out to be (1) a
wad of cash totaling more than $1,000; and (2) 11 empty plastic sandwich baggies. While
neither is “contraband” in the sense of being itself illegal, either singularly or in combination,
experience reasonably informed the police officers that cash in such a quantity could reasonably
have been proceeds from a drug transaction, and that plastic sandwich baggies are commonly
used in drug trafficking. Regardless, there is again room for argument about whether the search
was conducted properly and whether the cash and baggies were properly discovered. Like the
majority, I assume for purposes of analysis that they were.

       Having afforded the prosecution the benefit of the doubt in those respects, I am
nonetheless compelled to agree with the majority’s conclusion that the drugs later found on
defendant should have been suppressed. After the pat-down search and the discovery of the wad
of cash and plastic baggies, the officers’ already reasonable suspicion was arguably heightened.
Yet even the prosecution does not contend that the police officers at that point in time had
probable cause to arrest defendant. Instead, the prosecution argues that the police had “probable
cause to at least detain [defendant] to take him to the jail for fingerprinting to identify him.”3


2
  Pelcher was allowed to leave at the time, but was later arrested after the officers contacted his
parole officer.
3
  The prosecution does not contend that defendant’s refusal to identify himself was itself
unlawful or provided them with probable cause to arrest him. While it has long been the law that
“[i]n the ordinary course a police officer is free to ask a person for identification without
implicating the Fourth Amendment,” Hiibel v Sixth Judicial Dist Court of Nevada, Humboldt
Cnty, 542 US 177, 185 (2004), citing INS v Delgado, 466 US 210, 216; 104 S Ct 1758; 80 L Ed
2d 247 (1984), there was “an open question whether the suspect can be arrested and prosecuted
for refusal to answer.” Id., 542 US at 186-187, citing Brown v Texas, 443 US 47, 53 n 3; 99 S Ct
2637; 61 L Ed 2d 357 (1979). But the Supreme Court answered that question in Hiibel, in the
context of a Nevada “stop and identify” statute that required a detained person to identify himself
in the context of an investigatory stop. The Court held that [a] state law requiring a suspect to
disclose his name in the course of a valid [investigatory] stop is consistent with Fourth
Amendment prohibitions against unreasonable searches and seizures.” Id., 542 US at 188. Yet,
notwithstanding that holding, it does not appear, nor does the prosecution argue, that Michigan


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And take him to the jail they did. Once there, another pat-down search provided both auditory
and sensory indications that something was hidden in defendant’s crotch area. It also revealed
(after the removal of defendant’s sweatshirt pursuant to jail policy) a tattoo exhibiting
defendant’s name. Once the name was run through a database, it was determined that defendant
was a parole absconder with outstanding warrants for his arrest. At that point, defendant was
formally arrested, and a subsequent strip search revealed a baggie between defendant’s legs that
was determined to contain cocaine and marijuana. The officers’ instincts were validated and
their suspicions were confirmed.

         Certainly, it is understandable that upon discovering the cash and baggies after the initial
pat-down search, the officers would want to identify defendant and continue their investigation
into the possibility that he had committed a crime. But the Fourth Amendment4 exists to protect
all citizens from the excesses of government power. See People v Stevens, 460 Mich 626, 634;
597 NW2d 53 (1999).

        The Fourth Amendment and Michigan Constitution protect against unreasonable searches
and seizures (including arrests). US Const, Am IV; Const 1963, art 1, § 11; People v Earl, 297
Mich App 104, 107; 822 NW2d 271 (2012), aff’d on other grounds 495 Mich 33 (2014).
Generally, before making an arrest, a police officer obtains an arrest warrant from a magistrate
by presenting the magistrate with a complaint for arrest. MCL 764.1a; see also People v
Manning, 243 Mich App 615, 621; 624 NW2d 746 (2000). Before issuing an arrest warrant, the
magistrate must find that probable cause exists to believe that the individual accused in the
complaint committed the offense of which he is accused. MCR 6.102(A). The magistrate’s
findings may be based on the “actual allegations of the complainant in the complaint, the
complainant's sworn testimony, the complainant's affidavit, or the supplemental sworn testimony
or affidavits of other individuals presented by the complaint or required by the magistrate,”
including hearsay evidence. Manning, 243 Mich App at 621; MCR 6.102(B).

        Searches and seizures (including arrests) without a warrant are per se unreasonable,
unless they are subject to an exception. See Earl, 297 Mich App at 107. One of these exceptions
is the existence of probable cause. Probable cause to arrest exists when the circumstances “at the
moment of arrest would justify a fair-minded person of average intelligence in believing that the
suspected person had committed a felony.” People v Nguyen, 305 Mich App 740, 751-752; 854
NW2d 223 (2014) (quotation marks and citation omitted). “Probable cause requires only a


has adopted any such requirement that a detained person identify himself in the course of an
investigatory stop. Consequently, defendant’s refusal to identify himself to officers was not
itself in violation of any law and therefore did not provide the officers with probable cause to
arrest him on that basis.
4
  “The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons and things to be seized.” US Const, Am IV; see also Const 1963, art 1,
§ 11.


                                                -3-
probability or substantial chance of criminal activity, not an actual showing of criminal activity,”
and circumstantial evidence can be sufficient to show probable cause. Id. at 752 (quotation
marks and citation omitted). When a person is arrested without a warrant, “no judicial officer
has yet found that there was [probable] cause for the arrest.” Manning, 243 Mich App at 622.
Therefore, the arrested individual must be brought before a magistrate for arraignment and
probable cause determination “without unnecessary delay.” MCR 764.26, MCR 6.104.

        What the prosecution fails to acknowledge is that, notwithstanding the fact that defendant
was not formally placed under arrest until a later point in time, his seizure and transport to the
jail for purposes of fingerprinting and identification constitutes an “arrest” for Fourth
Amendment purposes. See Hayes v Florida, 470 US 811, 815; 105 S Ct 1643; 84 L Ed 2d 705
(1985). The police therefore could do so only with a warrant or with probable cause for an
arrest. Id. at 816.

        The police did not obtain a warrant, however. And the sole authority that the prosecution
cites for the proposition that it had probable cause to seize defendant (without a warrant) for
purposes of fingerprinting and identifying him at the jail is Hayes. But Hayes does not support
the prosecution’s position. Hayes makes it clear that “the line is crossed” into arrest when,
“without probable cause or a warrant, officers forcibly remove a person from his home or other
place in which he is entitled to be and transport him to the police station, where he is detained,
although briefly, for investigative purposes.” Id. at 816. The Supreme Court in Hayes
“adhere[d] to the view that such seizures, at least where not under judicial supervision, are
sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made
only on probable cause.” Id. at 816 (emphasis added). Although Hayes leaves open the
possibility that the Fourth Amendment might permit “a brief detention in the field for the
purpose of fingerprinting, where there is only reasonable suspicion not amounting to probable
cause,” see id. at 816, the officers’ actions in this case went well beyond a limited seizure in the
field.

       The officers, lacking probable cause to arrest defendant, should have sought a warrant for
defendant’s arrest or for his investigatory detention for purposes of identification via
fingerprints.5 Because they did not do so, the controlled substances seized from defendant
following his arrest must be suppressed. People v Stevens, 460 Mich 626, 633-634; 597 NW2d
53 (1999).

       For these reasons, and for the additional reasons stated by the majority, I concur with the
majority in reversing defendant’s conviction and vacating his sentence.

                                                             /s/ Mark T. Boonstra



5
  The Supreme Court in Hayes additionally noted that “the Fourth Amendment might permit the
judiciary to authorize the seizure of a person on less than probable cause and his removal to the
police station for the purpose of fingerprinting.” Hayes, 470 US at 817 (emphasis added). In
this case, however, the officers did not seek judicial authorization.


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