                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      July 16, 2015
               Plaintiff-Appellant,

v                                                                     No. 321317
                                                                      Wayne Circuit Court
JERRELL DEONTE GRIFFEN,                                               LC No. 13-011629-FH

               Defendant-Appellee.


Before: FORT HOOD, P.J., and SAAD and RIORDAN, JJ.

PER CURIAM.

       The prosecution appeals as of right the trial court’s order granting defendant’s motion to
suppress and subsequent order dismissing the case. We reverse and remand for further
proceedings consistent with this opinion.

        This case arises from defendant’s alleged carrying of a concealed weapon in his vehicle
on December 13, 2013. Michigan State Troopers Phillip Duplessis and Jonathan Henry decided
to follow defendant’s vehicle after they witnessed defendant make an “erratic” turn away from
their cruiser. After observing defendant disregard a traffic signal, the troopers performed a
traffic stop. The officers discovered that defendant’s license was suspended, and Duplessis
arrested defendant. Henry searched defendant’s vehicle, and located a firearm underneath the
driver’s seat. Defendant was charged with carrying of a concealed weapon, and defendant
moved to suppress the firearm for lack of probable cause to support the warrantless search. After
an evidentiary hearing, the trial court granted defendant’s motion, as well as defendant’s
subsequent motion to dismiss the charge based on lack of evidence.

       The prosecution argues that the trial court erred in concluding that the inventory search
was performed as a pretext for criminal investigation. We agree.

         This Court reviews a trial court’s findings of fact in a suppression hearing for clear error.
People v Hyde, 285 Mich App 428, 436; 775 NW2d 833 (2009). A decision is clearly erroneous
if, although there is evidence to support it, this Court is left with a definite and firm conviction
that a mistake has been made. People v Howard, 233 Mich App 52, 54; 595 NW2d 497 (1998)
(citation omitted). The ultimate decision on a motion to suppress is reviewed de novo. Hyde,
285 Mich App at 436.



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       The United States and the Michigan Constitutions prohibit unreasonable searches and
seizures. US Const, Am IV; Const 1963, art 1, § 11. When evidence has been seized as a result
of an unreasonable search and seizure, “it must be excluded from trial.” People v Chowdhury,
285 Mich App 509, 516; 775 NW2d 845 (2009). Warrantless searches are presumptively
unreasonable under the Fourth Amendment unless a specific exception to the warrant
requirement applies. Arizona v Gant, 556 US 332, 338; 129 S Ct 1710; 173 L Ed 2d 485 (2009).
When defendant moves to suppress evidence, “it is the prosecutor’s burden to show that the
search and seizure of that evidence was justified by a recognized exception to the warrant
requirement.” People v Jordan, 187 Mich App 582, 589; 468 NW2d 294 (1991).

        The prosecutor argues that the search of defendant’s vehicle was valid under the well-
known inventory search exception to the warrant requirement. Under the inventory search
exception, the police may conduct an inventory search of a vehicle that is being impounded
following the driver’s valid arrest. People v Toohey, 438 Mich 265, 271-272, 284; 475 NW2d 16
(1991). To be constitutional, an inventory search (1) must be conducted in accordance with
established departmental procedures, which all police officers are required to follow, and (2)
must not be used as a pretext for criminal investigation. Id. at 284.

        At the evidentiary hearing, the trial court properly found that the prosecutor adequately
established the existence of a departmental policy concerning the proper inventorying of
impounded vehicles. While defendant argues that this burden could not have been met in light of
the prosecutor’s failure to produce written policies at the hearing and on appeal, the prosecution
is not required to provide written policies. “The testimony of police officers may be sufficient to
establish the existence of a standard procedure or routine.” People v Green, 260 Mich App 392,
411; 677 NW2d 363 (2004), overruled in part on other grounds, People v Anstey, 476 Mich 436;
719 NW2d 579 (2006). Defendant did not challenge the validity of these policies at the hearing
or on appeal, and the trial court was free to accept Henry’s testimony regarding the existence of
the Michigan State Police Department’s standard vehicle inventory practices and that the
troopers performed the vehicle search in accordance with these policies.

       The trial court then found that the inventory search was merely a pretext for the officer’s
search to conduct a criminal investigation, rendering an otherwise permissible inventory search
unconstitutional. Specifically, the trial judge stated:

               I believe that both officers had an understanding that they had the
       authority to search that vehicle as an inventory search incident to arrest for the
       driving with the suspended license . . . but an inventory search can’t be a pretext
       to looking for some other evidence and I think that when the officers [] searched
       that vehicle I think they’re using the inventory search as a pretext, at that point, to
       look for other evidence of crimes for which there was no probable cause that
       would have allowed them to search that vehicle.

               They were on a public street. It was in a safe area. The vehicle could
       have been left behind . . . I don’t think that under this circumstance they had any
       reason that they actually had to have that vehicle towed. They could have given
       him an opportunity to call someone else to the scene to take the car away but I
       think they wanted to do an inventory search as a pretext to get them into that

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       vehicle to search for other contraband and I don’t think that the law allows that
       and so I’m going to grant [the] motion to suppress the evidence.

        After reviewing the record, we conclude that the trial court clearly erred in its
determination. First, the prosecutor correctly argues that the trial court’s reliance on the
availability of less-intrusive alternatives to impoundment in deciding that a pretext must exist
constituted error. While the troopers had options short of impoundment, “the ability of the
police to safeguard an arrested person’s property in a less intrusive manner than impoundment
[does] not render an otherwise reasonable impoundment unconstitutional.” Toohey, 438 Mich at
290.

        Further, the trial court’s finding that the search was a pretext for a criminal investigation
was not supported by the evidence. It is true that at the hearing, Duplessis initially neglected to
refer to the search of defendant’s vehicle as an “inventory search,” instead relying on defendant’s
consent to justify the search.1 By way of explanation of why he asked for defendant’s consent to
search the vehicle, Duplessis testified that he suspected that defendant made an erratic turn
because he was trying to hide something “in the glove compartment or under the seat.”
However, Duplessis also clearly testified that he searched the vehicle “[t]o conduct an inventory
search because [defendant] had a suspended license. The vehicle was going to be towed[.]” In
addition, Henry, the officer who actually conducted the search, plainly testified that the search of
defendant’s vehicle was an inventory search pursuant to department policy. Henry stated that he
searched the vehicle because it was going to be impounded and completed an impound sheet,2
which included a list of valuable items in the vehicle. Henry specifically denied that the decision
to search the vehicle was made at the same time that the officers decided to arrest defendant,
explaining that “[t]he vehicle was going to be searched because it was going to be towed because
he really couldn’t legally drive it and we weren’t going to leave it where it was.” We do not
agree that Duplessis’s testimony that he asked defendant’s consent to search the vehicle because
he believed defendant may have been hiding something establishes pretext for criminal
investigation, especially in light of the plain testimony of both Duplessis and Henry that the
search was completed for inventory purposes. Based on the record, we conclude that the trial
court clearly erred in determining that the inventory search was merely a pretext for criminal
investigation.

       Reversed and remanded for further proceedings consistent with this opinion.

                                                              /s/ Karen M. Fort Hood
                                                              /s/ Henry William Saad
                                                              /s/ Michael J. Riordan


1
  Duplessis testified that the search was proper because defendant gave consent to search the
vehicle. However, the trial court found that Duplessis’s testimony regarding defendant’s consent
was not credible. The prosecution does not appeal on this issue.
2
  The impound sheet was not admitted at trial, or provided with discovery. However, Henry
testified that an impound sheet is not routinely included in the police report.


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