                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    October 4, 2016
               Plaintiff-Appellee,

v                                                                   No. 329989
                                                                    Berrien Circuit Court
LESLIE ELIJAH MALONE, JR.,                                          LC No. 2014-005002-FH

               Defendant-Appellant.


Before: MURRAY, P.J., and HOEKSTRA and BECKERING, JJ.

MURRAY, P.J., (dissenting).

       My colleagues have agreed to an opinion that is well-written, well-reasoned, and
thorough. Nonetheless, I must respectfully disagree with the conclusion of that opinion, mostly
because the standards of review that we must apply compel an affirmance of the trial court’s
order.

         When reviewing findings of fact by a trial court we apply a deferential standard of
review, primarily because trial court judges are in a much better position than are we to make
findings of fact. People v Tyner, 497 Mich 1001; 861 NW2d 662 (2015); People v Etheridge,
196 Mich App 43, 57; 492 NW2d 490 (1992). So too, we must pay some deference to a police
officer’s experience in determining what is, or is not, evidence of suspicious behavior when
detaining a suspect beyond the initial traffic stop. See, e.g., United States v Cortez, 449 US 411,
418; 101 S Ct 690; 66 L Ed 2d 621 (1981) (Recognizing that from data gathered on the scene, “a
trained officer draws inferences and makes deductions—inferences and deductions that might
well elude an untrained person.”). In all cases, but particularly in one like this that is a “close
call,” we must ensure that we scrupulously adhere to these standards. In doing so, I would affirm
the trial court’s findings, conclusions, and order.

        As the majority makes clear, defendant does not dispute that the initial traffic stop for
illegal window tint was reasonable. Instead, the issue is whether the detention beyond the time
necessary to conduct that stop was unreasonable and, thus, unlawful. In Rodriguez v United
States, ___ US ___, ___; 135 S Ct 1609; 191 L Ed 2d 492 (2015), the United States Supreme
Court held “that a police stop exceeding the time needed to handle the matter for which the stop
was made violates the Constitution’s shield against unreasonable seizures” and that “[a] seizure
justified only by a police-observed traffic violation, therefore, become[s] unlawful if it is
prolonged beyond the time reasonably required to complete th[e] mission of issuing a ticket for

                                                -1-
the violation.” Id. at ___; 135 S Ct at 1612 (quotation marks and citation omitted; second and
third alterations in Rodriguez). The Rodriguez Court explained that, in addition to determining
whether to issue a ticket, “an officer’s mission includes ordinary inquiries incident to [the traffic]
stop” such as “checking the driver’s license, determining whether there are outstanding warrants
against the driver, and inspecting the automobile’s registration and proof of insurance.” Id. at
___; 135 S Ct at 1615 (quotation marks and citation omitted; alteration in Rodriguez). The
Rodriguez Court further explained that police “may conduct certain unrelated checks during an
otherwise lawful traffic stop,” but “may not do so in a way that prolongs the stop, absent the
reasonable suspicion ordinarily demanded to justify detaining an individual.” Id. (emphasis
added).

        Similarly, in People v Williams, 472 Mich 308, 315; 696 NW2d 636 (2005), the
Michigan Supreme Court explained that “[a] traffic stop is reasonable as long as the driver is
detained only for the purpose of allowing an officer to ask reasonable questions concerning the
violation of law and its context for a reasonable period” but that “[t]he determination whether a
traffic stop is reasonable must necessarily take into account the evolving circumstances with
which the officer is faced.” Accordingly, “when a traffic stop reveals a new set of
circumstances, an officer is justified in extending the detention long enough to resolve the
suspicion raised.” Id.

       After viewing the testimony of Officer Moore and reviewing the video tape from Officer
Moore’s camera vest, the trial court found that the officer had a reasonable suspicion to detain
defendant until the arrival of the K-9 unit. The factors supporting Officer Moore’s decision
were:

               In the present case, the trooper justified detaining Defendant for an
       additional 20 minutes until a drug dog arrived based on the following facts: (1)
       Defendant and the passenger were quiet and sat lowly—sat low in their seats
       when the trooper first approached, which the trooper construed as nervousness;
       (2) Defendant initially said he was returning from dropping someone off at the
       casino to work, but changed his story to say he was dropping the person off to
       gamble when the trooper returned to the vehicle; (3) The vehicle was owned by a
       3rd party; probably more significant, (4) An officer safety caution was reported on
       LIEN [sic], informing the trooper that Defendant may have been involved in
       criminal activity in the past; (5) the trooper received some prior history
       intelligence on Defendant and the passenger indicating they may have been
       involved with trafficking narcotics or were under investigation from another
       agency; (6) The car was very clean inside and the fresh laundry smell; (7) The
       trooper still observed nervousness on the part of Defendant and the passenger
       after he told them that he was not going to issue them a ticket.

        The trial court found it compelling that Officer Moore “used specific techniques” and
interpreted defendant’s and Outlaw’s (the passenger) demeanor as nervousness and that
“Defendant or the passenger may have a history related to trafficking narcotics,” and it indicated
that these factors weighed strongly in favor of reasonable suspicion.



                                                 -2-
       The majority overturns the trial court’s finding of reasonable suspicion on basically two
grounds. First, it concludes that Officer Moore never articulated “what reasonable inferences he
drew from the facts or what his experience and training allowed him to infer from his
observation” of the traffic stop. Second, the Court concludes that each of the factors identified
by Officer Moore and the trial court did not rise to the level of reasonable suspicion.

        With respect to the first conclusion, Officer Moore did testify that his observations from
his initial contact with defendant and Outlaw led him to suspect that “they might be hiding
something,” and that criminality “might be afoot.” What defendant or Outlaw were hiding—
guns, drugs, other illegal contraband—was what the further investigation necessitated. Williams,
472 Mich at 315. And certainly the “officer safety precaution” warning from the LEIN system
provided further objective evidence to Officer Moore that warranted additional
suspicion/investigation. After all, an officer does not have to have reasonable suspicion of
precise criminal activity. Instead, he must have reasonable suspicion that some type of criminal
activity may be occurring. See, e.g., United States v Arvizu, 534 US 266, 272; 122 S Ct 744; 151
L Ed 2d 740 (2002) (Noting that the Fourth Amendment is satisfied if the officer’s action is
supported by reasonable suspicion that criminal activity may be afoot); Brown v Texas, 443 US
47, 52; 99 S Ct 2637; 61 L Ed 2d 357 (1979) (Noting that an officer must have reasonable
suspicion, based on objective facts, that the individual is involved in criminal activity), and
United States v Pack, 612 F3d 341, 356 (CA 5, 2010), amended 622 F3d 383 (CA 5, 2010)
(After discussing Arvizu and Brown, the court concluded that “[r]equiring police to have
particularized facts that support a finding that ‘criminal activity may be afoot’ is different from
requiring the police to articulate particularized facts that support a finding that a particular
specific crime is afoot.”). And, let us not forget that the persuasion level of the evidence for an
officer’s reasonable suspicion falls below that of our lowest civil burden, preponderance of the
evidence. Illinois v Wardlow, 528 US 119, 123; 120 S Ct 673; 145 L Ed 2d 570 (2000); United
States v Sokolow, 490 US 1, 7; 109 S Ct 1581; 104 L Ed 2d 1 (1989) (The degree of proof
needed for reasonable “suspicion is considerably less than proof of wrongdoing by a
preponderance of the evidence,” and “obviously less demanding than that for probable cause.”).
Thus, Officer Moore provided a sufficient explanation, in context, that he had reasonable
suspicion that criminal activity may be afoot.1

        The Court’s second conclusion fails for a couple of reasons. First, its analysis places too
much emphasis on the sufficiency of each independent reason offered by Officer Moore and the
trial court, as opposed to the collective value of those reasons. As the Arvizu Court emphasized,
534 US at 274, reviewing courts must be careful not to engage in a “divide-and-conquer”
approach in reviewing the relied upon factors:


1
  We also must be careful not to place too much reliance on our independent review of the video,
as the trial court made its findings on that and the testimony presented in open court. See United
States v Santos, 403 F3d 1120, 1128 (CA 10, 2005) (“The increasing availability of videotapes of
traffic stops due to cameras mounted on patrol cars does not deprive [circuit] courts of their
expertise as finders of fact, or alter our precedent to the effect that appellate courts owe
deference to the factual findings of [circuit] courts.”).


                                                -3-
               We think that the approach taken by the Court of Appeals here departs
       sharply from the teachings of these cases. The court’s evaluation and rejection of
       seven of the listed factors in isolation from each other does not take into account
       the ‘totality of the circumstances,’ as our cases have understood that phrase. The
       court appeared to believe that each observation by Stoddard that was by itself
       readily susceptible to an innocent explanation was entitled to ‘no weight.’ . . .
       Terry, however, precludes this sort of divide-and-conquer analysis. The officer in
       Terry observed the petitioner and his companions repeatedly walk back and forth,
       look into a store window, and confer with one another. Although each of the
       series of acts was ‘perhaps innocent in itself,’ we held that, taken together, they
       ‘warranted further investigation.’ 392 US at 22; 88 S Ct 1868. See also Sokolow,
       at 9; 109 S Ct 1581 (holding that factors which by themselves were ‘quite
       consistent with innocent travel’ collectively amounted to reasonable suspicion)
       [emphasis added.]

See also Pack, 612 F3d at 358; United States v Zambrana, 428 F3d 670, 675 (CA 7, 2005)
(“Under this standard, a court cannot simply evaluate and reject each factor in isolation from the
other factors.”), and United States v Nelson, 284 F3d 472, 484 (CA 3, 2002) (“we follow the
Supreme Court’s admonition that reasonable suspicion cannot be reduced to ‘a neat set of rules,’
lest our focus on factors in isolation blind us to the ‘totality of the circumstances’ that must guide
our assessment of police behavior.”). Hence, the majority’s picking apart each reason—not to
the extent of saying each was invalid or nonexistent under the facts, but by not being sufficient
by themselves—is not the type of analysis that is condoned by a totality of the circumstances
test.

        Second, even accepting the majority’s skepticism (which will be briefly discussed below)
of some of the articulated reasons for the detention, as a whole the reasons were sufficient to
satisfy the relatively low threshold required for reasonable suspicion. See Arvizu, 534 US at 274
(recognizing that reasonable suspicion is a somewhat abstract concept not susceptible to stringent
rules). Indeed, Officer Moore’s original suspicion from the occupants’ mannerisms (based on
how they were sitting) solidified when defendant did not become relaxed when told that he was
only getting a verbal warning, and when the LEIN check came back with “officer safety
precaution.” It was also clear at that point that the owner of the vehicle was not present. On this
record, and because we must give some deference to the experience and training of the officer
who is much more capable than an appellate judge to quickly determine what is suspicious
activity in the criminal world, I would conclude that reasonable suspicion existed.2



2
  The majority recognizes that most of the reasons articulated by Officer Moore have been
recognized by the courts as legitimate factors, though of course the extent of the conduct varies
case by case. See People v Lewis, 251 Mich App 58, 72; 649 NW2d 792 (2002), citing United
States v Williams, 271 F3d 1262, 1268-1269 (CA 10, 2001) (explaining that “extreme
nervousness lasting throughout the entire traffic stop should not be ignored under the totality of
the circumstances”); United States v Ludwig, 641 F3d 1243, 1248 (CA 10, 2011) (explaining that
a masking odor could “contribute to a reasonable suspicion calculus”—despite the fact that the

                                                 -4-
        This brings me to a couple final points. The majority places less significance on some of
the articulated reasons than did Officer Moore. But we must be steadfast in remembering that
“factors that in isolation appear innocent may, in combination, provide a police officer with
reasonable suspicion” to reasonably detain an individual. People v Oliver, 464 Mich 184, 193;
627 NW2d 297 (2001), citing Terry v Ohio, 392 US 1, 22-23; 88 S Ct 1868; 20 L Ed 2d 889
(1968). “The question is not whether the conduct is innocent or guilty. Very often what appears
to be innocence is in fact guilt, and what is indeed entirely innocent may in some circumstances
provide the basis for the suspicion required to make an investigatory stop.” People v Nelson, 443
Mich 626, 632; 505 NW2d 266 (1993). That is why we give some deference to the skills,
knowledge, and experience of trained police officers, like Officer Moore, who had 20 years
police experience. Id. at 636. See also People v Steele, 292 Mich App 308, 315; 606 NW2d 753
(2011). What may appear to judges as innocent or benign mannerisms, may appear to a trained
and experienced officer on the scene as suspicious conduct warranting further investigation.
United States v Santos, 403 F3d 1120, 1128 (CA 10, 2005).

        In sum, although defendant’s argument on appeal focuses on the fact that Officer Moore
indicated that he “had a feeling that something was not right” and that “[y]ou could call it a
hunch if you wanted it to,” Officer Moore’s testimony as a whole described specific facts, which
amounted to reasonable suspicion when viewed together and in the totality of the circumstances.
Officer Moore’s testimony demonstrated that he was drawing conclusions based on his
experience, and the facts articulated above demonstrate that there was more than “an inchoate or
unparticularized suspicion or ‘hunch.’ ” Moreover, the fact that there could have been an
innocent explanation for some of the factors relied upon does not negate reasonable suspicion.
See Oliver, 464 Mich at 203. Viewing the facts as a whole, there was reasonable suspicion to
detain defendant in order to conduct a dog sniff, and the trial court did not err in reaching that
conclusion.

        Although the majority’s conclusion renders its review of defendant’s second issue-that
his motion to suppress should have been granted because the K-9 dog entered the vehicle during
the exterior sniff without a warrant-unnecessary, I would conclude that a remand was necessary
because the trial court failed to consider the issue and did not make the requisite factual findings
to resolve it on appeal.



                                                             /s/ Christopher M. Murray

masking odor could be consistent with a lawful activity); United States v Smith, 601 F3d 530,
542 (CA 6, 2010) (explaining that police “had the following evidence of criminal activity: (1) the
car was driving in a known drug corridor, (2) the car was owned by a third party, (3) . . . an
implausible story about [the] destination,” (4) a contradicting story, and (5) an “identification
had come back as a false number”) (emphasis added); Santos, 403 F3d at 1132 (explaining that
“in conjunction with other factors, criminal history contributes powerfully to the reasonable
suspicion calculus”); and United States v Brigham, 382 F3d 500, 508-509 (CA 5, 2004)
(explaining that inconsistent statements about travel plans was one of the factors that made law
enforcement actions and detention reasonable).


                                                -5-
