                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 10, 2017
               Plaintiff-Appellee,

v                                                                  No. 329927
                                                                   Washtenaw Circuit Court
ALEXANDER WASIL FEDOTOTSZKIN,                                      LC No. 14-000525-FH

               Defendant-Appellant.


Before: WILDER, P.J., and BORRELLO and GLEICHER, JJ.

PER CURIAM.

        Late one night, an officer found the intoxicated defendant sleeping in his car, slumped
over the wheel, with the engine running. A jury convicted defendant of operating a motor
vehicle while intoxicated, MCL 257.625, based on this discovery. Defendant challenges the
legality of the officer’s “investigatory stop” and of his subsequent arrest, as well as the
sufficiency of the evidence supporting his conviction. We affirm.

                                       I. BACKGROUND

        In the early morning hours of October 23, 2013, Pittsfield Township police officer
Matthew Kessler was out on patrol. He pulled into the parking lot of a closed restaurant where
he often parked to conduct surveillance of a nearby motel. That night, another vehicle was in the
lot. Officer Kessler noticed a car parked askew across the base of two spots, partially hanging
into the area designed for vehicular travel. Officer Kessler parked his patrol vehicle and exited.
He then heard the other vehicle’s engine running. Officer Kessler approached and observed
defendant in the driver’s seat, unconscious, slumped over the wheel.

        Officer Kessler knocked repeatedly on the window in an attempt to rouse defendant.
Defendant woke several times, looked at Officer Kessler, and then returned to his slumber. At
one point, defendant placed both hands on the steering wheel as if to drive away. Defendant’s
effort was stymied as he failed to take the vehicle out of park. When Officer Kessler ordered
defendant to unlock the vehicle’s doors, defendant instead hit the trunk release button.
Eventually, defendant succeeded in unlocking the doors. Officer Kessler reached in, turned off
the car, pulled the keys out of the ignition, and placed them on the vehicle’s roof.

        Defendant complied with Officer Kessler’s order to exit the vehicle. The officer detected
a strong odor of alcohol. Defendant was stumbling and had to lean on his vehicle to maintain his

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balance. Moreover, defendant’s speech was slurred and his eyes were red and bloodshot. He
could not answer basic questions. Given defendant’s uncooperative behavior, Officer Kessler
decided to forego field sobriety tests. He transported defendant to the police station and after
defendant refused a preliminary breathalyzer, Officer Kessler secured a warrant to test
defendant’s blood and urine. These tests revealed that defendant’s blood alcohol level was 0.24,
well above the legal limit of 0.08. See MCL 257.625(1)(b).

                                   II. INVESTIGATIVE STOP

        Defendant first contends that the trial court should have suppressed the evidence secured
during his stop as Officer Kessler’s actions constituted an unreasonable seizure under the Fourth
Amendment. “We review for clear error a trial court’s findings of fact in a suppression hearing,”
but “review de novo whether the Fourth Amendment was violated and whether an exclusionary
rule applies.” People v Hyde, 285 Mich App 428, 436; 775 NW2d 833 (2009). “Clear error
exists if the reviewing court is left with a definite and firm conviction that a mistake has been
made.” People v Johnson, 466 Mich 491, 497-498; 647 NW2d 480 (2002).

        For Fourth Amendment purposes, we presume that warrantless searches and seizures are
unreasonable unless a “ ‘specifically established and well delineated exception[]’ ” exists.
Coolidge v New Hampshire, 403 US 443, 454-455; 91 S Ct 2022; 29 L Ed 2d 564 (1971),
quoting Katz v United States, 389 US 347, 357; 88 S Ct 507; 19 L Ed 2d 576 (1967). However,
not every interaction with law enforcement constitutes a search or seizure triggering the Fourth
Amendment. An officer may approach a citizen “on the street or in other public places” and ask
the citizen to voluntarily answer questions without violating the Fourth Amendment. United
States v Drayton, 536 US 194, 200-201; 122 S Ct 2105; 153 L Ed 2d 242 (2002). As long as a
stop “involves no restraint on the citizen’s liberty, and is characterized by an officer seeking the
citizen’s voluntary cooperation through noncoercive questioning,” then it “is not a seizure within
the meaning of the Fourth Amendment.” People v Bloxson, 205 Mich App 236, 241; 517 NW2d
563 (1994) (quotation marks and citation omitted).

         “[I]n order to determine whether a particular encounter constitutes a seizure, a court must
consider all the circumstances surrounding the encounter to determine whether the police
conduct would have communicated to a reasonable person that the person was not free to decline
the officers’ requests or otherwise terminate the encounter.” Florida v Bostick, 501 US 429, 439;
111 S Ct 2382, 2389; 115 L Ed 2d 389 (1991). Officer Kessler’s act of approaching defendant’s
vehicle and knocking on the window did not amount to a seizure. In this regard we find
instructive People v Walker, 58 Mich App 519; 228 NW2d 443 (1975). Similar to the current
case, the officers in Walker “observed the defendant slumped over the wheel of his car, which
was parked with the motor running in a parking lot adjacent to a motel. The officers pulled into
the lot, approached the vehicle and aroused the defendant, who appeared to be either unconscious
or asleep.” Id. at 521. In Walker, 58 Mich App at 522-523, this Court held:

               [N]ot every encounter between a law enforcement official and a private
       citizen is a “stop” for Fourth Amendment purposes. The law recognizes an
       important factual/constitutional distinction drawn between arrests based on
       probable cause and street investigations which may ultimately lead to arrests. See
       People v Rivers, 42 Mich App 561, 567; 202 NW2d 498 (1972).

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               With this distinction in mind we proceed to analyze the police activity in
       the instant case. After observing a human form slumped over the steering wheel
       of an automobile (which was parked in a hotel parking lot at 4:30 in the morning
       with the motor running) the officers’ first step was to approach the vehicle and
       arouse the defendant. Next they asked him what he was doing there and for his
       operator’s license. When, in response to police questioning, the defendant
       identified a white substance around his nostrils as cocaine, the officers took the
       defendant’s driver’s license and conducted a warrant check through the LEIN
       system.

               The action taken by the police officers here is, for purposes of the Fourth
       Amendment, comparable to the momentary police-community contact approved
       in People v Rivers . . . . Quoting from United States v Lee, 271 A2d 566 (DC,
       1970), the Court said:

          “ ‘Revealed here is the kind of momentary contact which is and must be
          recognized as necessary to a sound police-community relationship and its
          commensurate effective law enforcement.’ ” Rivers, [42 Mich App at] 568-
          569.

       Our Supreme Court has also weighed in on this issue, holding that “merely approaching
[a] vehicle in a public place and asking [the occupants] if they [are] willing to answer some
questions” is not a seizure. People v Taylor, 454 Mich 580, 590; 564 NW2d 24 (1997),
overruled on other grounds People v Kazmierczak, 461 Mich 411; 605 NW2d 667 (2000).

        Officer Kessler approached defendant’s vehicle after “observing a human form slumped
over the steering wheel” parked next to a closed restaurant in the wee hours of the morning with
the motor running. This was not a seizure, or even an investigatory stop like in Terry v Ohio,
392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). See People v Daniels, 160 Mich App 614, 619;
408 NW2d 398 (1987) (“[A] police approach for questioning on the street amounts to a
consensual encounter, not a Terry stop, unless there exist intimidating circumstances leading the
person to reasonably believe he was not free to leave. . . .”). There is no record indication that
Officer Kessler parked his patrol vehicle in a manner that blocked defendant’s path or told
defendant to stay put. This was at most “momentary police-community contact” during which
an officer sought voluntary cooperation from a citizen.

       A seizure did occur, however, when Officer Kessler reached into defendant’s vehicle and
removed his keys and then ordered him to exit. Officer Kessler’s actions prevented defendant
from leaving, transforming the encounter into a Terry stop. As described by the United States
Court of Appeals for the Sixth Circuit in United States v Carr, 674 F3d 570, 574 (CA 6, 2012):

               When the officers asked Carr to exit the vehicle, the encounter
       transformed from voluntary to compulsory. “Once a consensual encounter
       escalates to the point where the individual is ‘seized,’ the police officer must have
       a reasonable suspicion of criminal activity to justify a Terry stop, or probable
       cause to justify an arrest, in order for the seizure to comply with the Fourth
       Amendment.” [Citation omitted.]

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        The current stop was not unlawful. Officer Kessler had reasonable suspicion that
defendant had operated a vehicle while intoxicated at the time he ordered defendant from the car.
When the officer approached, defendant’s engine was running, he was behind the wheel, and the
car was parked erratically. Defendant’s state of unconsciousness and then confusion and
inability to follow commands suggested that he was intoxicated. Accordingly, Officer Kessler
reasonably suspected that defendant had driven himself while intoxicated to the restaurant
parking lot, where he haphazardly parked and took a nap. The trial court therefore had no
ground to suppress the evidence gathered during the stop.

         III. PROBABLE CAUSE TO ARREST/SUFFICIENCY OF THE EVIDENCE

        Defendant next argues that Officer Kessler lacked probable cause to arrest him because
the officer did not see defendant operating the vehicle. And as no one saw defendant operating
the vehicle, defendant contends that his conviction is insupportable. Defendant failed to preserve
his challenge that Officer Kessler lacked probable cause to make a warrantless arrest by raising
this issue in his pretrial motion to suppress. Our review is therefore limited to plain error
affecting defendant’s substantial rights. People v Green, 260 Mich App 392, 396; 677 NW2d
363 (2004), overruled on other grounds People v Antsey, 476 Mich 436, 446-447; 719 NW2d
579 (2006).

        “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.” People v Chapo, 283 Mich App
360, 366-367; 770 NW2d 68 (2009). However, MCL 764.15(1)(d) permits warrantless arrests
for certain misdemeanors occurring outside an officer’s presence, specifically 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.”
Reasonable or probable cause to arrest exists “where the facts and circumstances within an
officer’s knowledge and of which he has reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief that an offense has been or is
being committed.” People v Champion, 452 Mich 92, 115; 549 NW2d 849 (1996). “The
standard is an objective one, applied without regard to the intent or motive of the police officer.”
Chapo, 283 Mich App at 367.

       Officer Kessler arrested defendant for OWI under MCL 257.625, which proscribes
operating a vehicle, even in a parking lot, while intoxicated, i.e. “under the influence of
intoxicating liquor.” MCL 257.625(1)(a). Subsection (9)(a) makes the offense a misdemeanor
punishable by 93 days’ incarceration. Therefore, pursuant to MCL 764.15(1)(d), “an officer
does not have to observe a defendant operating a vehicle for the defendant to be arrested and
prosecuted for [OWI]” in violation of MCL 257.625. People v Stephen, 262 Mich App 213, 219;
685 NW2d 309 (2004). The question then in considering the validity of defendant’s arrest and
conviction is whether Officer Kessler had sufficient facts within his knowledge to warrant the
reasonable belief that defendant had operated his vehicle while intoxicated.

       Officer Kessler clearly had probable cause. Defendant was behind the wheel of a running
vehicle. The circumstances more than suggested that defendant had not become intoxicated at
that location. The restaurant was closed and defendant’s vehicle was haphazardly parked.

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Moreover, Officer Kessler found no alcohol or empty containers in defendant’s vehicle. This
would lead a reasonably cautious officer to believe that defendant drove himself to the parking
lot while already intoxicated.1 Defendant’s intoxication was also clear. Defendant was soundly
asleep behind his steering wheel. Officer Kessler knocked on defendant’s window for several
minutes to wake him. Upon waking, defendant was confused and unable to open his car door.
When defendant exited the vehicle, he could barely stand and did not know where he was.
Officer Kessler detected the smell of alcohol and noticed that defendant’s eyes were red and
bloodshot and his speech was slurred. Based on the totality of the circumstances, Officer Kessler
had probable cause to arrest defendant.

        This same evidence, viewed in the light most favorable to the prosecutor, supports
defendant’s conviction beyond a reasonable doubt. Accordingly, defendant’s challenge to the
sufficiency of the evidence supporting his conviction must fail. See People v Reese, 491 Mich
127, 139; 815 NW2d 85 (2012).

        We affirm.



                                                                /s/ Kurtis T. Wilder
                                                                /s/ Stephen L. Borrello
                                                                /s/ Elizabeth L. Gleicher




1
  A defendant operates a motor vehicle for purposes of the OWI statute when he or she “has put
the vehicle in motion, or in a position posing a significant risk of causing a collision, . . . until the
vehicle is returned to a position posing no such risk.” People v Wood, 450 Mich 399, 404-405;
528 NW2d 351 (1995).


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