                             STATE OF MICHIGAN

                              COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                        FOR PUBLICATION
                                                                        September 19, 2017
                  Plaintiff-Appellant,                                  9:20 a.m.

v                                                                       No. 331462
                                                                        Oakland Circuit Court
CHARLES WILLIAM WOOD,                                                   LC No. 2015-255591-FH

                  Defendant-Appellee.


Before: STEPHENS, P.J., and K. F. KELLY and MURRAY, JJ.

K. F. KELLY, J.

        The prosecutor appeals by right an order dismissing a charge of possession of a
controlled substance (codeine), a violation of MCL 333.7403(2)(b)(ii). The dismissal was based
on the circuit court’s earlier opinion and order that granted defendant’s motion to suppress
evidence. Finding no errors warranting reversal, we affirm.

                                           I. BASIC FACTS

        On March 14, 2015, Michigan State Police Trooper Everett Morris observed defendant
traveling 83 miles per hour in a 70 mile per hour zone. Morris decided to conduct a traffic stop.
Defendant was the lone occupant of the car. Morris testified that he “noticed several pill bottles
along with several like whippet canisters. They would be nitrous oxide . . .[o]n the rear
floorboard.” Morris observed about a dozen of the containers. He explained: “They caught my
attention because I’ve dealt with them before where people use them and they huff ‘em for a
temporary high.” Morris confronted defendant about the canisters:

                A. We discussed the huffing of the whippets or nitrous oxide that were in
       the back of the seat. I asked him, you know, when the last time it was that he
       used it.

                  Q. And what did he say?

                  A. He stated four days ago.

                  Q. Okay. And what, if anything, did you say?

                  A. I informed him that that stuff will kill your brain.

                                                   -1-
               Q. And did he respond to your statement?

               A. I believe he said I know.

        Morris unsuccessfully sought defendant’s consent to search the car. He nevertheless
ordered defendant out of the car and searched it. In addition to the nitrous oxide whippets,
Morris found a canister that is used to huff with. Morris also found an empty bottle of codeine
syrup with the name removed, as well as pill bottles with the names removed. Morris found six
pills located inside a jacket belonging to defendant, which were determined to be codeine.
Morris was not concerned that defendant was actually intoxicated at the time and he did not
confiscate the whippets, canisters or the empty pill bottles.

        The circuit court granted defendant’s motion to suppress the evidence but did not
specifically grant or deny defendant’s motion to dismiss for lack of untainted evidence. The
parties subsequently appeared before the court on January 21, 2016:

                MR. MEIZLISH [prosecutor]: Your Honor, as I imagine you recall, you
       entered an order suppressing the evidence in this matter. . . . Both sides agreed
       that if – you should – that you could set the matter for a trial right now.

               THE COURT: Okay. So, everybody waives their right to a trial?

               MS. MOISE [defense counsel]: Yes.

               MR. MEIZLISH: We’re just setting it for trial right now.

               THE COURT: We’ll set it right now.

               MR. MEIZLISH: All right. Your Honor, we are unable to proceed at this
       time.

               MS. MOISE: Your Honor, I move for the Court to dismiss this matter.

              THE COURT: The prosecutor being unable to proceed, the Court will
       dismiss the charges.

               MR. MEIZLISH: Your Honor, I’ve prepared an order.

               THE COURT: Do you want to sign it, then –

               MR. MEIZLISH: Sure.

               THE COURT: - we can be done with it? All right. We’re all set.

       The circuit court entered an order that provided: “I hereby grant Defendant’s motion to
dismiss the matter.” The prosecution now appeals by right. In response, defendant argues that
the appeal is moot.

                                      II. JURISDICTION

                                              -2-
       Defendant argues that the prosecution’s actions have rendered this appeal moot in
keeping with People v Richmond, 486 Mich 29; 782 NW2d 187 (2010). An appellate court
reviews de novo whether an issue is moot. Garrett v Washington, 314 Mich App 436, 449; 886
NW2d 762 (2016).

        In Richmond, the circuit court granted the defendant’s motion to suppress the evidence
based on the fact that the affidavit supporting the search warrant was insufficient to establish
probable cause. There, as here, the circuit court’s ruling resulted in the exclusion of all of the
evidence against the defendant. Richmond, 486 Mich at 32-33. “The prosecutor then moved to
voluntarily dismiss the case without prejudice, stating that ‘[g]iven the Court’s decision, it would
make more sense for me to dismiss this case at this time since we are not able to go forward
since the evidence has been suppressed.’ ” Id. at 33. The circuit court signed an order
dismissing the case without prejudice “ ‘on the motion of the People.’ ” Id. The prosecutor then
appealed the circuit court’s decision to suppress the evidence. This Court reversed the circuit
court’s order and remanded the case for reinstatement of the charges against the defendant. On
appeal to the Michigan Supreme Court, the defendant argued for the first time that the Court of
Appeals should not have considered the prosecution’s appeal because the issue was moot once
the prosecution voluntarily obtained dismissal of the case. Id. The Supreme Court agreed and
held “that the prosecution’s voluntary dismissal of the charges rendered its appeal moot and,
because a court should not hear moot issues except in circumstances that are not applicable under
the facts of this case, the Court of Appeals erred by reaching the substantive issues of the
prosecution’s appeal.” Id. at 34. The matter was moot because there was no actual controversy.
The Court explained:

                In this case, the prosecution’s own action clearly rendered its subsequent
       appeal moot. After the circuit court suppressed the evidence, the prosecution
       moved to dismiss the charges against defendant. As a result of the prosecution’s
       voluntarily seeking dismissal of the charges, the circuit court dismissed the
       charges without prejudice and any existing controversy between the parties was
       rendered moot. Once the charges were dismissed, an action no longer existed,
       and, thus, there was no longer any controversy left for the Court of Appeals to
       consider. Accordingly, because all the charges against defendant had been
       dismissed at the time of the prosecution’s appeal, the Court of Appeals judgment
       was based on a pretended controversy that did not rest upon existing facts or
       rights. Because a court cannot tender advice on matters that are no longer in
       litigation, the Court of Appeals made a determination on a mere barren right—a
       purely moot question, which, under this Court’s precedent, it did not have the
       power to decide. [Id. at 35-36 (quotation marks and citations omitted).]

        We decline defendant’s invitation to extend the Richmond rule to situations in which the
prosecutor does not specifically seek to dismiss the case. The Court’s focus in Richmond was
clearly on the prosecution’s actions. Here, the prosecution did not seek a dismissal. The order
clearly states that it was defendant’s motion. This case is distinguishable from Richmond
because it does not involve a voluntary dismissal by the prosecution. Instead, defendant
requested that the circuit court dismiss the charges as part of the motion to suppress.

                                       III. SUPPRESSION

                                                -3-
        The prosecutor argues that Morris had probable cause to search defendant’s vehicle under
the automobile exception based on defendant’s admission that he committed the crime of huffing
and based on Morris’s observation of several nitrous canisters and pill bottles on the vehicle’s
floorboard. The prosecutor further argues that there was probable cause to arrest defendant for
huffing nitrous oxide, which would have triggered an inventory search of the vehicle and would
have led to the inevitable discovery of the codeine pills. “We review de novo the circuit court’s
ultimate ruling on a motion to suppress evidence.” People v Barbarich, 291 Mich App 468, 471;
807 NW2d 56 (2011).

       The circuit court properly suppressed evidence seized that was the result of an unlawful
search. Our Court has stated:

       The Fourth Amendment of the United States Constitution and article 1, § 11 of
       the Michigan Constitution protect against unreasonable searches and seizures.
       Generally, searches or seizures conducted without a warrant are presumptively
       unreasonable and, therefore, unconstitutional. This does not mean that all searches
       and seizures conducted without a warrant are forbidden; only those that are
       unreasonable. The United States Supreme Court has carved out numerous
       exceptions to the general rule that warrantless searches are unreasonable using a
       test that balances the governmental interest that justifies the intrusion against an
       individual’s right to be free of arbitrary police interference.

                                               ***

       Each of these exceptions, however, still requires reasonableness and probable
       cause. [People v Barbarich, 291 Mich App 468, 472; 807 NW2d 56 (2011)
       (citations, quotation marks and footnote omitted).]

“Probable cause exists when the facts and circumstances known to the police officers at the time
of the search would lead a reasonably prudent person to believe that a crime has been or is being
committed and that evidence will be found in a particular place.” People v Beuschlein, 245 Mich
App 744, 750; 630 NW2d 921 (2001).

                               A. AUTOMOBILE EXCEPTION

        “An exception to the warrant requirement exists for searches of automobiles.” People v
Levine, 461 Mich 172, 179; 600 NW2d 622 (1999). Once again, however, “the exception applies
only to searches supported by probable cause.” Id. “The determination whether probable cause
exists to support a search, including a search of an automobile without a warrant, should be made
in a commonsense manner in light of the totality of the circumstances.” People v Garvin, 235
Mich App 90, 102; 597 NW2d 194 (1999). “[T]he probable-cause determination must be based
on objective facts that could justify the issuance of a warrant by a magistrate and not merely on
the subjective good faith of the police officers.” United States v Ross, 456 US 798, 808; 102 S
Ct 2157, 2164; 72 L Ed 2d 572 (1982).

       The question in this case is whether Morris, under the totality of the circumstances, had
probable cause to believe that a crime had been or was being committed and that evidence of the
crime would be found in the car. The prosecution relies heavily upon People v Kazmierczak, 461
                                               -4-
Mich 411; 605 NW2d 667 (2000) and argues that the totality of the circumstances revealed there
was a fair probability that Morris would find evidence that defendant committed the crime of
huffing chemical agents, in violation of MCL 752.272, as well as possession of or use of
controlled substances under MCL 333.7404(2)(b).

       In Kazmierczak, the Michigan Supreme Court concluded that:

       when a qualified person smells an odor sufficiently distinctive to identify
       contraband, the odor alone may provide probable cause to believe that contraband
       is present. Thus, the odor provides a “substantial basis” for inferring a “fair
       probability” that contraband or evidence of a crime will be found. Here, Officer
       Bordo testified that he had previous experience involving marijuana
       investigations and that he recognized “a very strong smell of marijuana emanating
       from the vehicle.” The trial court found the officer’s testimony to have been
       credible. Under such circumstances, probable cause to search for marijuana
       existed. [Kazmierczak, 461 Mich at 420–422.]

        Here, the prosecution argues that, like Bordo in Kazmierczak, Morris had probable cause
to believe that a search of defendant’s vehicle would reveal evidence of the crime of possession
of a controlled substance based on defendant’s admission that he committed the crime of huffing
and based on Morris’s observation of several nitrous canisters and pill bottles on the vehicle’s
floorboard. However, Kazmierczak is distinguishable from the case at bar in a significant way –
whereas the possession of marijuana was a crime in and of itself, defendant’s possession of the
nitrous canisters and pill bottles was perfectly legal. The canisters did not form the basis for
probable cause to search defendant’s vehicle.

       The prosecution argues, however, that the canisters along with defendant’s admission
provided probable cause for the search. Defendant admitted that he had huffed four days prior,
which was prohibited by MCL 752.272:

       No person shall, for the purpose of causing a condition of intoxication, euphoria,
       excitement, exhilaration, stupefaction or dulling of the senses or nervous system,
       intentionally smell or inhale the fumes of any chemical agent or intentionally
       drink, eat or otherwise introduce any chemical agent into his respiratory or
       circulatory system. This shall not prohibit the inhalation of any anesthesia for
       medical or dental purposes.

Defendant’s statement could not form the basis for probable cause to search defendant’s vehicle.
The statute does not prohibit possessing the nitrous canisters; rather, it prohibits the misuse of the
canisters. Therefore, the statute addresses intoxication and impairment. Morris never suspected
that defendant was intoxicated or impaired when he pulled defendant over. Defendant had been
speeding, but there was no testimony that he had been driving erratically. Nor did Morris
suspect that defendant was intoxicated or impaired when he spoke with him. This case would be
entirely different had Morris observed defendant in an impaired state or suspected that defendant
was in an impaired state. Instead, Morris believed that defendant’s statement and the presence of
the canisters created probable cause to believe that other controlled substances would be found.


                                                 -5-
                             B. ARREST/INVENTORY SEARCH

        “[A]n inventory search of a person in detention is constitutional if the underlying arrest
was valid and the search was conducted by the police in accordance with standardized
department procedures.” People v Houstina, 216 Mich App 70, 77; 549 NW2d 11 (1996). Such
a search “is considered to be an administrative function rather than a part of a criminal
investigation.” Id.

        The inventory exception to the warrant requirement does not apply because defendant’s
arrest was not valid.

       A police officer may make an arrest without a warrant if there is probable cause to
       believe that a felony was committed by the defendant, or probable cause to
       believe that the defendant committed a misdemeanor in the officer’s presence.
       “Probable cause is found when the facts and circumstances within an officer’s
       knowledge are sufficient to warrant a reasonable person to believe that an offense
       had been or is being committed.” The standard is an objective one, applied
       without regard to the intent or motive of the police officer. [People v Chapo, 283
       Mich App 360, 366–367; 770 NW2d 68 (2009).]

MCL 764.15(1)(d) permits warrantless arrests for misdemeanors that occur outside an officer’s
presence when “[t]he peace officer has reasonable cause to believe a misdemeanor punishable by
imprisonment for more than 92 days . . . has been committed and reasonable cause to believe the
person committed it.” The prosecution argues that Morris was entitled to arrest defendant for
huffing. A person who huffs “is guilty of a misdemeanor punishable by imprisonment for not
more than 93 days or a fine of not more than $100.00, or both.” MCL 752.273. The fact
remains that defendant was arrested for possession of codeine pills (which were found as a result
of an illegal search) not for inhaling nitrous oxide.

         We find instructive this Court’s recent opinion in People v Mead, ___ Mich App ___;
___ NW2d ___ (Docket No. 327881, issued August 8, 2017). In Mead, a police officer stopped
a driver for an expired license plate. The driver subsequently consented to a search of the
vehicle. As part of that search, the officer opened a backpack belonging to defendant, who was a
passenger in the car, and found methamphetamine. Mead, slip op, p 2. The primary issue in the
defendant’s appeal was whether he had standing to challenge the search. This Court concluded
that he did not. However, the Michigan Supreme Court remanded the case for further
consideration of the issue, along with an instruction that this Court consider “whether there are
any other grounds upon which the search may be justified.” Id. at slip op, p 1. On remand, this
Court ultimately concluded that defendant lacked standing to challenge the validity of the search.
Id. at slip op, pp 2-4. For our purposes, however, the informative portion of the Court’s decision
was when it addressed whether there were “other grounds justifying the search.” This Court
concluded that there were not. Specifically, it rejected the prosecution’s claim that the arrest
exception to the warrant requirement applied. The Court first noted:

       “[T]here is no reason to believe that evidence relevant to the crime of arrest would
       be found in the vehicle” when police are addressing “civil infractions” or a person
       “driving without a valid license.” Id. at 586. “[J]ustifying the arrest by the search

                                                -6-
       and at the same time the search by the arrest, just will not do.” Smith v Ohio, 494
       US 541, 543; 110 S Ct 1288; 108 L Ed 2d 464 (1990) (quotations, alterations, and
       citation omitted). For example, a “search of a container cannot be justified as
       being incident to an arrest if probable cause for the contemporaneous arrest was
       provided by the fruits of that search.” People v Champion, 452 Mich 92, 116-117;
       549 NW2d 849 (1996).

With that in mind, the Court concluded that the police officer lacked probable cause to arrest the
defendant:

               In this case, Officer Burkart did not search the backpack incident to the
       arrest of Mead or Taylor. Officer Burkart stopped the vehicle due to an expired
       license plate. It is unclear how the vehicle could contain evidence of an expired
       license plate. Officer Burkart repeatedly testified that he had no intent to arrest
       Taylor for the infraction. Additionally, Officer Burkart testified that Mead and
       Taylor admitted to using narcotics. But he did not testify that drug use was the
       basis for the stop of the vehicle, that either admitted to possessing drugs that
       night, that either admitted using drugs that night, or that either exhibited signs of
       being under the influence of narcotics. Upon viewing the video of the traffic stop,
       it does not appear that Taylor or Mead are within reaching distance of the
       backpack or passenger compartment of the vehicle at the time of the search.
       Therefore, Officer Burkart lacked probable cause for a lawful arrest as is required
       to permit a search incident to arrest.

These facts are eerily similar to those before us. We see no reason to conclude differently.

       Affirmed.

                                                             /s/ Kirsten Frank Kelly
                                                             /s/ Cynthia Diane Stephens




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