              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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 21, 2019
                Plaintiff-Appellee,

v                                                                    No. 340386
                                                                     Oakland Circuit Court
DANIEL ANTAUN JENKINS,                                               LC No. 2017-262518-FH

                Defendant-Appellant.


Before: GLEICHER, P.J., and K. F. KELLY and LETICA, JJ.

PER CURIAM.

        Defendant appeals by right his convictions for two counts of controlled substance
delivery less than 50 grams, MCL 333.7401(2)(a)(iv). The trial court sentenced defendant as a
fourth-offense habitual offender, MCL 769.12, to two concurrent terms of 18 months to 25
years’ imprisonment. We affirm.

                                        I. BASIC FACTS

        Sergeant Douglas Stewart of the Oakland County Narcotics Enforcement Team (NET)
was conducting surveillance on defendant for narcotics trafficking. Sergeant Stewart had
knowledge that defendant’s driver’s license was suspended and, after observing defendant get
into the driver’s side of a vehicle and drive away, Sergeant Stewart contacted Detective Michael
Miller of the Oakland County Sheriff’s Office, told him that defendant was driving on a
suspended license, and asked him to stop defendant.

        Detective Miller stopped defendant’s vehicle. Upon approaching the vehicle, defendant
identified himself and said that he did not have a valid driver’s license. Detective Miller arrested
defendant for driving on a suspended license, handcuffed him, and placed him in the backseat of
his patrol car. Sergeant Stewart advised that defendant may be concealing narcotics on his body.
Detective Miller read defendant his Miranda1 rights and told him that he would be searched at

1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
the jail, and if he was concealing narcotics on his body he would be additionally charged with
bringing narcotics into the jail. Defendant then said that he wanted to speak with members of the
NET, who arrived on scene.

        Detective Miller relayed the information to Detective Matthew Gorman of the NET, who
spoke to defendant while he remained in the backseat of Detective Miller’s patrol car. Defendant
told Detective Gorman that he wanted to cooperate and give them information on other narcotics
traffickers. Detective Gorman said that he had no reason to cooperate with defendant in that
manner since they did not find narcotics on him. Defendant then motioned toward his waistband
and said that he was concealing narcotics between his buttocks. Detective Gorman let defendant
out of the backseat of the vehicle, uncuffed him, and allowed him to retrieve the narcotics from
his body. Defendant retrieved a wadded up paper from his buttocks that contained two
substances believed to be narcotics. The substances were tested and found to be cocaine and
heroin.

       Defendant was convicted and sentenced as outline above. He now appeals by right.

                                    II. BRADY VIOLATION

       Defendant first argues on appeal that the trial court erred in not dismissing the charges on
due process grounds given the failure to preserve exculpatory evidence. In particular, defendant
argued in a pre-trial motion that police destroyed in-car footage that would have corroborated his
testimony. We disagree.

       We review de novo defendant’s claim that the prosecutor’s failure to disclose exculpatory
material evidence violated his constitutional right to due process. People v Schumacher, 276
Mich App 165, 176; 740 NW2d 534 (2007).

        No person may be deprived of life, liberty, or property without due process of law. US
Const, Am V; US Const, Am XIV; Const 1963, art 1, § 17. “[S]uppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963).
However, when the evidence was only potentially exculpatory, due process requires a different
consideration. See Arizona v Youngblood, 488 US 51, 57; 109 S Ct 333; 102 L Ed 2d 281
(1988). The United States Supreme Court was unwilling to interpret the Due Process Clause as
imposing on the police an undifferentiated and absolute duty to retain and to preserve all material
that might be of conceivable evidentiary significance in a particular prosecution. See id. at 58.
The Supreme Court in Youngblood held: “[U]nless a criminal defendant can show bad faith on
the part of the police, failure to preserve potentially useful evidence does not constitute a denial
of due process of law.” Id.; see also People v Huttenga, 196 Mich App 633, 642; 493 Mich 486
(1992) (“when the exculpatory nature of the evidence is speculative, due process is not violated
in the absence of bad faith where the state fails to preserve such evidence.”). Evidence destroyed
because of negligence does not equate to bad faith. Youngblood, 488 US at 58.

        Detective Gorman stated that the recording systems automatically uploaded to a server.
If the recording was logged as a traffic stop, it would be saved for 30 days. If the stop was
logged as an arrest, it would be saved for 60 or 90 days. If the footage was not requested within
the designated time period, it would be automatically deleted. The footage in this case was

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logged as a traffic stop. However, the footage was not requested until months after the stop.
When the footage was requested, it had automatically been deleted per departmental procedure.

        The video may have supported defendant’s claim, but it equally may have supported the
prosecution’s case. Neither party can say for sure because neither party saw the footage in
question. Additionally, because Detective Gorman testified that defendant got out of the police
car to retrieve the narcotics from his buttocks, the video may not have shown defendant at all.
Thus, defendant could only speculate as to the contents of the video. Therefore, defendant did
not demonstrate that the evidence was favorable to him as required by Brady. Rather, he only
demonstrated that the evidence may have been potentially useful. Because the footage was not
requested for months after the stop, and the footage was automatically deleted, we conclude that
there has been no showing of bad faith in not retaining the evidence. Accordingly, because the
exculpatory nature of the evidence was speculative and there was no evidence of bad faith,
defendant’s right to due process was not violated. Thus, the trial court did not err in denying
defendant’s motion to dismiss the charges.

                                             III. 404b

        Defendant next argues that the trial court abused its discretion in admitting evidence of
past acts in violation of MRE 404(b). We disagree.

        The trial court heard a pretrial motion from the prosecution during which it stated its
intent to present evidence under MRE 404(b) of defendant’s arrest in October 2016 for
possession and distribution of narcotics. This arrest occurred four months before defendant’s
arrest on the current charges. Defendant opposed the motion, claiming that the evidence was
irrelevant. However, he also stated his intent to use the evidence in his defense to show that his
arrest in the instant case was retaliation by the NET officers for a lenient sentence he received for
his October 2016 arrest. The trial court granted the prosecution’s motion.

        “[A] party may not harbor error at trial and then use that error as an appellate
parachute . . . .” People v Szalma, 487 Mich 708, 726; 790 NW2d 662 (2010). That is, a party
cannot create the very error that it wishes to correct on appeal. Id. To do so is a waiver of the
party’s right to raise the issue on appeal. Id. and n 41.

         In this case, defendant stated his intent during the pretrial hearing to use the evidence of
his October 2016 arrest as his primary defense at trial. Then, at trial, defendant did indeed assert
that defense. Defendant cross-examined multiple witnesses about their involvement with the
NET, their knowledge of his October 2016 arrest, and their participation in his October 2016
arrest. Defendant presented the defense that his arrest in the instant case was a set up and was in
retaliation for a lenient sentence he received following his October 2016 arrest by the same
officers. In order to assert that defense, defendant necessarily had to rely on evidence of his
October 2016 arrest. Defendant consistently relied on the same evidence that he now claims was
improperly admitted. Thus, he waived the right to raise the evidentiary issue on appeal. See
Szalma, 487 Mich at 726 and n 41. Thus, we decline to address the evidentiary issue under MRE
404(b) that defendant now raises on appeal. See id. (“Because a party may not harbor error at
trial and then use that error as an appellate parachute, we will not reach the question” raised on
appeal.).

                              IV. SUPPRESSION OF EVIDENCE

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       Defendant argues in a Standard 4 brief2 that the physical evidence against him had to be
suppressed because Detective Miller lacked reasonable suspicion to stop him. We disagree.

       Defendant moved to suppress the physical evidence at trial, arguing that Detective Miller
did not have a reasonable suspicion to stop him because he did not run defendant’s name in the
Law Enforcement Information Network (LEIN) until after he stopped him, and thus, he did not
know that defendant’s license was suspended until after he stopped him. The trial court denied
defendant’s motion, finding that Detective Miller had a reasonable suspicion because he had
information from Sergeant Stewart that defendant was driving on a suspended license.

        “In considering a trial court’s ruling on a motion to suppress, we review its factual
findings for clear error and its interpretation of the law de novo.” People v Dunbar, 499 Mich
60, 66; 879 NW2d 229 (2016).

        The right to be free from unreasonable searches and seizures is guaranteed by both the
United States Constitution and the Michigan Constitution. US Const, Am IV; Const 1963, art 1,
§ 11. A police officer may make a valid traffic stop if he possesses a reasonable suspicion that
crime is afoot. People v Lewis, 251 Mich App 58, 69; 649 NW2d 792 (2002). “Reasonable
suspicion entails something more than an inchoate or unparticularized suspicion or ‘hunch,’ but
less than the level of suspicion required for probable cause.” Id. An officer making a traffic stop
may rely on the collective knowledge of the officers involved in the investigation in determining
if reasonable suspicion to stop a vehicle existed. People v Nguyen, 305 Mich App 740, 751, 753-
754; 854 NW2d 223 (2014). Driving on a suspended license is a criminal offense in Michigan,
punishable by up to 93 days in jail for the first offense. MCL 257.904(1), (3)(a).

        In this case, Sergeant Stewart had direct knowledge that defendant was committing the
crime of driving on a suspended license because he observed the crime happen. He relayed his
observations to Detective Miller. Detective Miller properly relied on Sergeant Stewart’s
observation when stopping defendant’s vehicle. Thus, Detective Miller had a reasonable
suspicion that crime was afoot when he stopped defendant’s vehicle, regardless of when he ran a
LEIN check on defendant. Because Detective Miller had a reasonable suspicion to stop
defendant’s vehicle, the evidence obtained did not have to be suppressed. The trial court did not
err in denying defendant’s motion.

         Affirmed.

                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Anica Letica




2
    See Michigan Supreme Court Administrative Order 2004-6, Standard 4.


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