                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 16, 2014
               Plaintiff-Appellee,

v                                                                  No. 317109
                                                                   Saginaw Circuit Court
QUINTEL ANDREW WEST,                                               LC No. 12-037699-FC

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and CAVANAGH and METER, JJ.

PER CURIAM.

        Defendant appeals as of right from his convictions following a jury trial of first-degree
felony murder, MCL 750.316; assault with intent to murder, MCL 750.83; first-degree home
invasion, MCL 750.110a(2); conspiracy to commit first-degree home invasion, MCL
750.110a(2) and MCL 750.157a; armed robbery, MCL 750.529; conspiracy to commit armed
robbery, MCL 750.529 and MCL 750.157a; carrying a dangerous weapon with unlawful intent,
MCL 750.226; and five counts of possession of a firearm during the commission of a felony
(felony-firearm) MCL 750.227b. The trial court sentenced him to prison terms of life without
parole for the murder conviction, 210 months to 40 years for the assault conviction, 5 to 20 years
for both home-invasion convictions, 210 months to 40 years for both armed robbery convictions,
and two years for each felony-firearm conviction. We affirm.

        This appeal involves the shooting death of Michael Kuhlman and related crimes
stemming from a robbery and home invasion that occurred while Kuhlman and the other victims
were playing poker at Kuhlman’s home. Evidence against defendant included the recovery of a
handgun in defendant’s possession whose forensic characteristics matched evidence recovered
from the scene, testimony about defendant’s purchase of a consistent-looking gun, clothing
found in defendant’s possession that matched that worn by one of the robbers, a photograph on
defendant’s cellular telephone that depicted him posing with cash and a handgun, a victim’s
cellular telephone found in an area behind defendant’s home, and cellular-telephone-analysis
evidence showing telephone calls made between Kuhlman and defendant on the day of the
robbery.

       Defendant first argues that the prosecution witness admitted as an expert witness
regarding cellular telephone data should not have been permitted to opine that, given the data
provided by the telephone carrier, defendant’s cellular telephone was not stationary during the

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evening of the robbery, but was moving around the Saginaw area and at times was close to
Kuhlman’s home. This Court reviews the admission of evidence for an abuse of discretion.
People v Benton, 294 Mich App 191, 199; 817 NW2d 599 (2011). “A trial court abuses its
discretion when it chooses an outcome that is outside the range of reasonable and principled
outcomes.” People v Orr, 275 Mich App 587, 588-589; 739 NW2d 385 (2007). To the extent
that a decision about the admission of evidence involves a “preliminary question[] of law, e.g.,
whether a rule of evidence or statute precludes admissibility of the evidence,” then review of that
issue is de novo. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).

         The Michigan Supreme Court has referred to the requirements of Daubert v Merrell Dow
Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993), regarding the
reliability of expert testimony. See Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780 n 46;
685 NW2d 391 (2004). Specifically, MRE 702 provides:

               If the court determines that scientific, technical, or other specialized
       knowledge will assist the trier of fact to understand the evidence or to determine a
       fact in issue, a witness qualified as an expert by knowledge, skill, experience,
       training, or education may testify thereto in the form of an opinion or otherwise if
       (1) the testimony is based on sufficient facts or data, (2) the testimony is the
       product of reliable principles and methods, and (3) the witness has applied the
       principles and methods reliably to the facts of the case.

        Defendant does not challenge the introduction of the expert’s testimony showing that
calls were made between defendant and Kuhlman, the fact that each call involved one or more
cellular towers, or more precisely “sections” of tower coverage, nor the timing of the calls. In
other words, he does not challenge the reliability of the data given to the expert from Verizon,
the provider. Instead, he challenges the “location” opinion testimony provided by the expert and,
in particular, the expert’s opinion that normally if a call began on one cellular tower and ended
on another tower it would mean that the caller was moving. This is essentially a challenge to
requirements (1) and (2) above, with a primary focus on requirement (2). Defendant argues that
even if a Verizon computer algorithm could show why a certain tower or tower section carried a
particular telephone call, this algorithm was unknown to the expert and thus his conclusion was
not based on adequate facts or data, nor was it the product of reliable principles and methods.

          “When evaluating the reliability of a scientific theory or technique, courts consider
certain factors, including but not limited to whether the theory has been or can be tested, whether
it has been published and peer-reviewed, its level of general acceptance, and its rate of error if
known.” People v Kowalski, 492 Mich 106, 131; 821 NW2d 14 (2012). However, “the trial
court’s role as gatekeeper does not require it to search for absolute truth, to admit only
uncontested evidence, or to resolve genuine scientific disputes.” People v Unger, 278 Mich App
210, 217; 749 NW2d 272 (2008) (internal quotation marks and citation omitted). The proper
inquiry is whether the expert opinion is rationally derived from a sound foundation, not whether
it is ultimately correct or universally accepted. Id.

       We conclude that defendant has shown that the trial court erred when it permitted the
prosecution to present the expert’s opinion that the cellular tower data likely indicated that
defendant’s cellular telephone was moving around Saginaw during the time of the robbery and,

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in particular, that the telephone was near Kuhlman’s location. Indeed, the expert’s own
testimony undermined the reliability of this opinion. He acknowledged that he could not testify
regarding how Verizon routes calls and that calls did not always connect to the nearest tower.
He also stated that call volume was one of the factors that affected which tower would connect
with a telephone. He stated that one of the ways that a telephone call could be rerouted to a
different tower during a call would be if the telephone was moving, but did not know whether
other reasons could cause the telephone to switch towers. He also stated that some of the cellular
tower service areas overlapped so that moving a few feet could cause the telephone to switch
towers. Nothing in the expert’s training told him how far the tower service areas reached. In
short, the expert admitted he was not qualified, or at least did not have the underlying factual
data, to opine in the instant case about the location of defendant’s telephone with reasonable
reliability.

        However, because it does not affirmatively appear more probable than not that this
testimony was outcome-determinative, any error was harmless. Lukity, 460 Mich at 495-496.
Nothing prevented the jury from drawing its own opinion about the location of the telephone
calls from the data presented by the expert, and, significantly, the expert was very forthcoming
about the shortcomings in the data he had been furnished. In addition, defendant’s own expert
witness further explained the inherent unreliability concerning the location data. Given the
extensive cross-examination of the prosecution’s expert, we find that the jury was not left with a
misunderstanding of the extent to which the cellular telephone data could be used. We also note
the other very strong evidence linking defendant to the crimes. Accordingly, any error in
allowing the expert’s opinion testimony concerning location information was harmless. See
Benton, 294 Mich App at 199 (“Evidentiary error does not require reversal unless after an
examination of the entire cause, it appears more probable than not that the error affected the
outcome of the trial in light of the weight and strength of the properly admitted evidence.”).

        Defendant next argues that the trial court erred in denying his motion to suppress, thereby
allowing the prosecution to present evidence found after various improper searches of his
automobile. “This Court reviews a trial court’s findings of fact at a suppression hearing for clear
error and reviews de novo its ultimate decision on a motion to suppress the evidence.” People v
Tavernier, 295 Mich App 582, 584; 815 NW2d 154 (2012). Questions of law relevant to a
motion to suppress evidence are reviewed de novo. See People v Stevens (After Remand), 460
Mich 626, 631; 597 NW2d 53 (1999).

        During the suppression hearing, Saginaw Township Police Detective Sergeant Jack
Doyle testified he had been given defendant’s name as a possible suspect in the robbery,
including information that defendant drove a maroon Blazer and had been seen at Kuhlman’s
home on the day of the robbery. The day after the shooting, Doyle saw defendant enter the
suspect Blazer as he watched defendant’s residence. In an unmarked police car, he and another
detective followed the car onto the freeway. The Blazer then began to slow down, and the
officers did as well; at one point the cars reached approximately 30 miles an hour. Defendant
began to get off the freeway using an exit ramp, but as Doyle began to follow him, defendant
swerved back onto the freeway, traveling over “the grass or gravel” in the area between the
freeway and the ramp. Defendant reentered the freeway in front of a red truck pulling a trailer,
causing the truck driver to use his brakes. The officers continued to follow defendant and
defendant was stopped and arrested for reckless driving.

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         Intending to impound the car, Saginaw Township Police Detective Robert Bean “reached
in, on the front seat” and placed his hand on the center console. As he did so, the console
moved. Bean then lifted the console and noticed a 30-round loaded gun magazine. He left the
magazine, and the car was towed to the police station. He and Officer Kevin Gloude searched
the car at the station and recovered the magazine. Gloude testified that he then saw a corner of a
plastic baggie sticking out from between the plastic housing the car’s map lights and the roof
liner. When he removed it from the partly attached housing, he saw that the baggie contained 12
pills, later determined to be Adderall. Gloude then searched the car, and because he had
previously found contraband behind car glove boxes, he searched in that area. He pushed the
plastic tabs that allowed the glove box to swing down and found a loaded 9mm handgun. He
also removed black knit caps and a pair of gloves from the car.

        The trial court concluded that the evidence was admissible because the inventory
searches were proper following defendant’s arrest for reckless driving. The court also concluded
that the police had probable cause to search the car under the automobile exception based on the
previous information concerning defendant’s possible involvement in the armed
robbery/homicide, the fact that a victim’s telephone was found at a home near defendant’s home,
and defendant’s actions while followed by the police.

        The United States and the Michigan Constitutions prohibit unreasonable searches and
seizures. US Const, Am IV; Const 1963, art 1, § 11. The basic rule is that “searches conducted
outside the judicial process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to a few specifically established and
well-delineated exceptions.” Arizona v Gant, 556 US 332, 338; 129 S Ct 1710; 173 L Ed 2d 485
(2009) (citation, quotation marks, and emphasis omitted). In other words, warrantless searches
and seizures are presumptively unreasonable unless an exception to the warrant requirement
applies. Inventory searches are recognized exceptions to the warrant requirement. People v
Slaughter, 489 Mich 302, 311; 803 NW2d 171 (2011).

        In general, an automobile may be searched by police officers without a search warrant if
there is probable cause to support the search. People v Kazmierczak, 461 Mich 411, 418-419;
605 NW2d 667 (2000). “[T]he automobile exception is premised on an automobile’s ready
mobility and pervasive regulation, and if a car is readily mobile and probable cause exists to
believe it contains contraband, the Fourth Amendment permits police to search the vehicle
without more.” Id. at 418.

        Defendant admits that the portion of the inventory search in which Gloude found the bag
of Adderall was proper. Nor does defendant contest the general principle that a warrantless
search may be conducted under the automobile exception even after a vehicle is in police
custody and no longer subject to being driven away. See People v Carter, 250 Mich App 510,
515-518; 655 NW2d 236 (2002). Rather, defendant argues that the initial search of the car at the
side of the road was not done pursuant to the department’s policy regarding appropriate areas to
be searched during an inventory search and that the police did not have sufficient probable cause
to continue the extended search of the car following the discovery of the Adderall pills.
Defendant’s arguments regarding discovery of the loaded handgun behind the glove box and the
loaded magazine under the console must fail.


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       The loaded handgun was discovered after the officers had ample probable cause to
believe that further contraband would likely be found in the car due to the discovery of the
Adderall pills, which were tucked up behind the map light, rather than in the console or any other
“ordinary” location. The handgun was properly admitted.

         The additional loaded magazine was also admissible. Leaving aside the question of
whether it would be admissible as evidence found pursuant to a valid initial inventory search, we
find that it would be admissible even if it were not. Once Gloude discovered the pills and began
searching the car, it is highly likely that he too would have discovered the loose center console,
lifted it up, and inevitably found the magazine. “The inevitable discovery exception generally
permits admission of tainted evidence when the prosecution can establish by a preponderance of
the evidence that the information ultimately or inevitably would have been revealed in the
absence of police misconduct.” People v Stevens (After Remand), 460 Mich 626, 637; 597
NW2d 53 (1999). Applying the exception under the factual circumstances of this case would not
provide an “incentive for police misconduct.” Id. at 637 (citation and quotation marks omitted).1

        Defendant next argues that the trial court erroneously gave an instruction on flight based
on testimony that a witness saw three individuals fleeing from the scene of the murder, because
no testimony was presented that defendant was one of those individuals. “The determination
whether a jury instruction is applicable to the facts of the case lies within the sound discretion of
the trial court.” People v Ho, 231 Mich App 178, 189; 585 NW2d 357 (1998). The instruction
being challenged is the following:

               There has been some evidence that the defendant ran away or hid after the
       alleged crime. This evidence does not prove guilt. A person may run or hide for
       innocent reasons such as panic, mistake, or fear. However, a person may also run
       or hide because of a consciousness of guilt. You must decide whether the
       evidence is true. And, if true, whether the evidence shows that the defendant had
       a guilty state of mind.

         A flight instruction is appropriate when the evidence shows the defendant fled the scene
or ran from the police. See People v Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995). At
trial, an eyewitness testified that he saw three people running from the scene. While the witness
did not specifically state that one of those people was, in fact, defendant, this testimony, when
coupled with the additional evidence of defendant’s involvement (including his actions on the
freeway), provided sufficient circumstantial evidence supporting the flight instruction.


1
  In a supplemental brief, defendant seems to be arguing that suppression of evidence was
required because of various alleged violations of departmental policies. However, we need not
address these arguments because they are not raised in the statement of questions presented for
appeal in the brief. People v Brown, 239 Mich App 735, 748; 610 NW2d 234 (2000). At any
rate, the arguments are without merit and demonstrate no entitlement to appellate relief. For
example, two officers worked on the search and one of them testified that he completed an
inventory form. Defendant has set forth no persuasive authority for finding an error requiring
reversal in the procedure employed.


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        Defendant lastly argues that the warrantless arrest for reckless driving was unreasonable
because the police lacked probable cause. He notes that he was neither arraigned for nor issued a
warrant, a citation, or a ticket for reckless driving. Defendant argues that, because the police
lacked probable cause to arrest, the evidence found after the subsequent searches should have
been suppressed as fruit of the poisonous tree. He concurrently argues that counsel provided
ineffective assistance for failing to move to suppress the evidence on this ground.

               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, 429; 678
       NW2d 627 (2004) (citations and quotation marks omitted).]

        As discussed above, testimony was presented that an officer saw defendant appear to exit
the freeway, but then abruptly turn back onto the freeway in front of a vehicle pulling a trailer.
Under MCL 257.626(2), “a person who operates a vehicle upon a highway . . . in willful or
wanton disregard for the safety of persons or property” is guilty of reckless driving which, if no
injury results, is a misdemeanor. Thus, the officer was acting within his power to arrest
defendant. MCL 764.15(1)(a). Defendant has not identified any authority in support of his
contention that, in order for the evidence to be used, he had to have been charged with the
offense for which he was initially arrested.

        Nor can defendant show he was provided ineffective assistance of counsel. To establish
ineffective assistance of counsel, defendant must show that counsel’s performance fell below an
objective standard of reasonableness and that the representation so prejudiced him that he was
denied a fair trial. People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). Because
defendant cannot show that his arrest was unlawful, trial counsel cannot be faulted for failing to
make an issue out of it. People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001).

       Affirmed.

                                                             /s/ Michael J. Kelly
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Patrick M. Meter




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