                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 28, 2015
               Plaintiff-Appellant,

V                                                                   No. 317251
                                                                    Wayne Circuit Court
TRAVIS RAYNARD EDWARDS,                                             LC No. 13-001903-AR

               Defendant-Appellee.


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

PER CURIAM.

       Defendant was charged with carrying a concealed weapon in a motor vehicle (“CCW”),
MCL 750.227, possession of a firearm during the commission of a felony (“felony-firearm”),
MCL 750.227b(1), and felon in possession of a firearm, MCL 750.224f. The prosecution
appeals by leave granted1 a circuit court order affirming a district court order that dismissed the
charges against defendant. We reverse and remand for further proceedings consistent with this
opinion.

                                                 I

        On January 26, 2013, between 6:00 and 6:30 p.m., Detroit Police Officer Charles Lynem,
and his partner, Chancellor Searcy, were in a marked scout car patrolling Gratiot Avenue near
the intersection of Eastburn and Gratiot. While traveling southbound on Gratiot, Lynem
observed a silver Ford Taurus parked at a Marathon Gas Station. The vehicle was located
between the gas pumps and the entrance to the convenience store, and its engine was running.
While Lynem waited to make a left turn into the gas station lot, he watched the Taurus for
approximately 15 to 30 seconds from a vantage point of approximately 100 feet. During this
time, the officers watched defendant exit the convenience store. Lynem testified that he made
eye contact with defendant and then observed defendant clutch, with his right hand, a large bulge
at his waistband. Defendant then entered the rear passenger seat of the Taurus.



1
  People v Edwards, unpublished order of the Court of Appeals, entered January 10, 2014
(Docket No. 317251).


                                                -1-
        The officers watched the Taurus leave the gas station and began to follow the vehicle.
The officers decided to initiate a traffic stop based on their conclusion that the Taurus had been
impeding traffic in the Marathon parking lot as well as defendant’s conduct as he exited the gas
station. During the stop, the officers approached the vehicle. Lynem asked the female driver to
roll down all four windows. After the windows were rolled down, Lynem observed defendant
slump forward toward the front passenger seat with his hands near the floorboard.

        Lynem ordered defendant to exit the vehicle. Defendant did not immediately comply
with Lynem’s order. Searcy then instructed defendant to exit the vehicle, and defendant
complied with his order, at which time Searcy handcuffed defendant. While Lynem held
defendant near the trunk area of the Taurus, Searcy entered the vehicle through the rear
passenger door and emerged with a nickel-plated handgun. Defendant was then arrested and
placed in the patrol car. On the way to the police station, without any questioning by the officers
and before the officers had advised defendant of his right to remain silent, defendant voluntarily
made the following statement: “Please give me a break. I keep the gun -- just keep the gun for
protection. You guys can keep that gun. It’s my father’s gun. Just please let me go.”

        Following the preliminary examination, the prosecution moved to bind defendant over to
the circuit court for trial on the charged offenses. During oral argument on the motion to bind
over defendant, defendant moved for suppression of the evidence arising from the traffic stop,
and asked the district court to dismiss the case, on the basis that the officers illegally stopped the
Taurus because the vehicle had not violated a state or local traffic law and defendant had not
performed an illegal act by clutching his waistband. Additionally, defendant argued that his
allegedly furtive gesture inside the Taurus was not enough to establish probable cause to search
the vehicle. In response, the prosecution asserted that the traffic stop was proper and that
probable cause was not necessary for the officers to remove defendant from the vehicle in light
of their belief that defendant was armed. Defendant argued in rebuttal that the evidence was
obtained after he was placed under arrest by the officers, which required a showing of probable
cause, and contended, after citing the reasonable suspicion standard required for an investigatory
stop, that the officers did not observe any criminal activity related to defendant, let alone conduct
that established probable cause.

        The district court took the matter briefly under advisement, and thereafter concluded that
the stop was unwarranted because the driver of the Taurus had not committed the traffic offense
of impeding traffic, and that defendant’s act of clutching his waistband was not a crime, thus,
implicitly granting defendant’s motion to suppress evidence. The district court entered an order
dismissing the charges against defendant on the basis of insufficient evidence.

        The prosecution appealed the dismissal to the circuit court, arguing that the district court
abused its discretion when it failed to bind defendant over to the circuit court for trial. In
particular, the prosecution asserted that Lynem had a reasonable suspicion, based on the totality
of the circumstances, including his experience as a police officer, that defendant was carrying a
concealed weapon, which justified the officers’ stop of the vehicle and subsequent search based
on their belief that defendant was armed. The prosecution also argued that the district court
erred in relying on the fact that defendant’s act of clutching his waistband was not a crime, as the
officers only needed a reasonable suspicion of ongoing criminal activity to stop defendant.
Defendant asserted that the evidence was acquired following an illegal arrest because the officers

                                                 -2-
lacked probable cause to stop the Taurus, place him under arrest, and search the vehicle.
Additionally, defendant argued that the officers lacked a reasonable suspicion that justified
stopping the vehicle. The circuit court affirmed the district court’s order of dismissal, finding
that the officers lacked a reasonable suspicion to stop the vehicle in which defendant was riding
because the officers had no reason whatsoever to stop defendant or the vehicle.

                                                 II

       The prosecution argues that the district court erred when it granted defendant’s motion to
suppress the evidence and abused its discretion when it failed to bind defendant over for trial.
We agree.

        This Court reviews de novo a trial court’s ultimate decision regarding a motion to
suppress evidence. People v Davis, 250 Mich App 357, 362; 649 NW2d 94 (2002). The trial
court’s factual findings are reviewed for clear error and will not be reversed unless this Court is
definitely and firmly convinced that a mistake has been made. Id. Whether a search violated the
Fourth Amendment, and whether an exclusionary rule applies, is a question of constitutional law
that this Court reviews de novo. People v Hyde, 285 Mich App 428, 438; 775 NW2d 833
(2009). Likewise, whether an officer’s suspicion is reasonable under the Fourth Amendment is a
question of law that is also reviewed de novo. People v Bloxson, 205 Mich App 236, 245; 517
NW2d 563 (1994).

        Furthermore, this Court reviews for an abuse of discretion “[a] district court’s bindover
decision that is contingent on the factual sufficiency of the evidence.” People v Norwood, 303
Mich App 466, 468; 843 NW2d 775 (2013). “This Court reviews de novo the bindover decision
to determine whether the district court abused its discretion, giving no deference to the circuit
court’s decision.” Id. (quotation marks and citation omitted).

                                                III

        The United States and Michigan constitutions prohibit unreasonable searches and
seizures. US Const, Am IV; Const 1963, art 1, § 11. Generally, a search or seizure conducted
without a warrant is unreasonable per se under the state and federal constitutions unless the
search falls within one of the recognized exceptions to the warrant requirement. People v
Champion, 452 Mich 92, 98; 549 NW2d 849 (1996). An investigatory stop, commonly known
as a “Terry stop,” is one of the recognized exceptions to the warrant requirement. Terry v Ohio,
392 US 1, 3; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Under Terry, a brief stop for further
investigation is constitutionally permissible when “a police officer has a reasonable, articulable
suspicion to believe a person has committed or is committing a crime given the totality of the
circumstances.” People v Barbarich, 291 Mich App 468, 473; 807 NW2d 56 (2011). With
regard to motor vehicles, a police officer may perform a traffic stop on the basis of an articulable
and reasonable suspicion that the vehicle or one of its occupants is violating the law. People v
Williams, 236 Mich App 610, 612; 601 NW2d 138 (1999).

       “Reasonable suspicion entails something more than an inchoate or unparticularized
suspicion or ‘hunch,’ but less than the level of suspicion required for probable cause.”
Champion, 452 Mich at 98, citing United States v Sokolow, 490 US 1; 109 S Ct 1581; 104 L Ed

                                                -3-
2d 1 (1989). Stated differently, “[t]he totality of the circumstances as understood and interpreted
by law enforcement officers, not legal scholars, must yield a particular suspicion that the
individual being investigated has been, is, or is about to be engaged in criminal activity.” People
v Nelson, 443 Mich 626, 632; 505 NW2d 266 (1993). In considering whether a police officer
had a reasonable suspicion that justified a Terry stop, this Court should adhere to the principle
that “[c]ommon sense and everyday life experiences predominate over uncompromising
standards.” Id. at 635-636. Additionally, “deference should be given to the experience of law
enforcement officers and their assessments of criminal modes and patterns.” People v Steele,
292 Mich App 308, 315; 806 NW2d 753 (2011), citing United States v Arvizu, 534 US 266, 273-
274; 122 S Ct 744; 151 L Ed 2d 740 (2002). However, “[a]n officer testifying that he inferred
[that a defendant was engaged in criminal activity] on the basis of his experience and training is
obliged to articulate how the behavior that he observed suggested, in light of his experience and
training, an inference of criminal activity.” People v LoCicero, 453 Mich 496, 505-506; 556
NW2d 498 (1996). Notably, “fewer foundational facts are necessary to support a finding of
reasonableness where a moving vehicle is involved than where a house or home is involved,”
and “a stop of a motor vehicle for investigatory purposes may be based upon fewer facts than
those necessary to support a finding of reasonableness where both a stop and a search are
conducted by the police.” People v Yeoman, 218 Mich App 406, 410-411; 554 NW2d 577
(1996).

       In the instant case, the district court focused exclusively on whether the officers validly
stopped the vehicle based on a traffic violation and concluded that the vehicle in which
defendant was riding did not commit the traffic offense of impeding traffic. Although it
concluded that defendant’s act of clutching his waistband was not a crime in and of itself,
however, the district court failed to make any finding with regard to whether Lynem had a
reasonable suspicion that defendant was engaging in illegal activity.

         Upon de novo review, we find that the district court erred in granting defendant’s motion
to suppress because the officers did not violate defendant’s Fourth Amendment rights by
obtaining evidence from the stopped vehicle. Hyde, 285 Mich App at 438. First, Lynem’s
testimony at the preliminary examination demonstrated that the officers validly stopped the
Taurus based on Lynem’s reasonable suspicion that defendant, an occupant of the vehicle, was
engaging in illegal activity. Williams, 236 Mich App at 612. Lynem saw defendant clutch a
large bulge at his waistband after making eye contact with Lynem. Additionally, Lynem testified
that, in his experience, which included four years of service with the Detroit Police Department,
defendant’s behavior indicated that he was armed. As such, Lynem specifically articulated how
his previous experience led him to draw an inference of criminal activity from defendant’s
conduct. LoCicero, 453 Mich at 505-506. Even though defendant’s act of clutching his
waistband may have had an innocuous purpose, as this Court previously stated, “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.” Yeoman, 218 Mich App at 410 (quotation
marks and citation omitted). Therefore, in light of the deference that we must give to Lynem’s
experience as a police officer and his assessment of the behavioral patterns typical of individuals
who illegally carry concealed weapons, Steele, 292 Mich App at 315, the officers had a valid
basis to stop the Taurus based on Lynem’s reasonable suspicion that defendant was engaging in
illegal activity. Williams, 236 Mich App at 612; see also People v Taylor, 214 Mich App 167,

                                                -4-
170-171; 542 NW2d 322 (1995) (holding that stopping the defendant was justified when an
officer had a reasonable suspicion, based on his experience, that the defendant was carrying a
concealed weapon after observing a bulge in the defendant’s jacket).

          Second, after the officers lawfully stopped the vehicle, Searcy performed a valid search
of the area of the passenger compartment in which defendant was sitting. In general, a police
officer must have probable cause to search a vehicle without a warrant. People v Levine, 461
Mich 172, 179; 600 NW2d 622 (1999). However, a police officer is permitted to search “the
passenger compartment of an automobile, limited to those areas in which a weapon may be
placed or hidden,” if the “officer possesses a reasonable belief based on specific and articulable
facts which, taken together with the rational inferences from those facts, reasonably warrant the
officers in believing that the suspect is dangerous and the suspect may gain immediate control of
weapons.” Michigan v Long, 463 US 1032, 1049; 103 S Ct 3469; 77 L Ed 2d 1201 (1983)
(quotation marks and citation omitted); see also People v Gewarges, 176 Mich App 65, 69; 439
NW2d 272 (1989) (“If the police officer reasonably believes that the suspect is armed and
dangerous, the officer may conduct a limited protective search for concealed weapons.”).

        Under the totality of the circumstances, the officers validly performed a protective search
of the vehicle. Long, 463 US at 1049. After the driver of the vehicle rolled down all of the
windows at Lynem’s request, Lynem saw defendant slump forward in the direction of the front
passenger seat with his hands near the floorboard. When Lynem instructed defendant to exit the
vehicle, defendant did not comply with Lynem’s request. Instead, defendant remained seated
until Searcy asked defendant a second time to exit the vehicle. This furtive behavior, in
conjunction with Lynem’s reasonable suspicion—based on his experience—that defendant’s
movements outside the gas station were indicative of an individual who was armed, provided
specific and articulable facts that established a reasonable belief that defendant had access to a
weapon and, therefore, was dangerous. Id. Accordingly, Searcy’s limited search of the rear-
passenger area of vehicle where defendant had been sitting, which produced a nickel-plated
handgun, was a valid protective search. Id.

         We note that defendant argues that Searcy’s search of the vehicle exceeded the nature and
scope that is permissible under Terry because there was no evidence that defendant was armed
and dangerous. However, as previously explained, Lynem’s testimony included specific and
articulable facts that established a reasonable belief that defendant had access to a weapon and
was dangerous. Moreover, contrary to defendant’s arguments on appeal, even though defendant
was handcuffed and standing near the trunk of the vehicle when Searcy performed the search, a
police officer does “not act unreasonably in taking preventive measures to ensure that there were
no other weapons within [the suspect’s] immediate grasp before permitting him to reenter his
automobile.” Id. at 1051 (emphasis added). Likewise, “if the suspect is not placed under arrest,
he will be permitted to reenter his automobile, and he will then have access to any weapons
inside” if the police officers, who have a reasonable belief that the suspect is armed, do not
perform a protective search. Id. at 1051-1052. Accordingly, because the officers had a
reasonable belief that defendant was armed—and because Searcy searched and discovered the
weapon in the immediate area where defendant had been sitting, which was the area where a
weapon may have been placed or hidden—Searcy’s search did not exceed the nature and scope
that is permissible under Terry. Id. at 1049.


                                                -5-
        Additionally, we note that defendant argues at length in his brief on appeal that the
officers’ act of stopping and searching the vehicle was unreasonable and violated the Fourth
Amendment because the officers lacked probable cause to stop the vehicle based on a traffic
violation and, as a result, lacked probable cause to seize and search the vehicle. However, we
need not address this argument given our conclusion that the officers legally performed a Terry
stop based on their reasonable suspicion that defendant was engaging in illegal activity, i.e.,
carrying a concealed weapon, and legally performed a limited search of the passenger
compartment based on their reasonable belief that defendant was armed. Williams, 236 Mich
App at 612. Indeed, as this Court previously stated:

       That one of the officers—wrongly—believed that defendant was committing a
       traffic misdemeanor does not undermine the validity of a traffic stop premised
       upon the officers’ reasonable suspicion of other criminal activities raised by
       defendant’s conduct. Either the officers’ suspicion that a theft had occurred or
       their suspicion that defendant was violating the careless driving law sufficed to
       allow the instant stop. [People v Peebles, 216 Mich App 661, 666; 550 NW2d
       589 (1996).]

Likewise, the fact that defendant was detained in handcuffs during the search of the backseat of
the vehicle does not necessarily establish that defendant was under arrest, and probable cause
was not required to restrain defendant and search the area where defendant had been sitting.
People v Green, 260 Mich App 392, 396-398; 677 NW2d 363 (2004) (citing cases in which a
defendant’s restraint did not constitute an arrest), overruled on other grounds by People v Anstey,
476 Mich 436; 719 NW2d 579 (2006); see also People v Nimeth, 236 Mich App 616, 624; 601
NW2d 393 (1999). Instead, in light of the circumstances and the officers’ reasonable belief that
defendant was armed, the officers’ detention of defendant was a reasonable safety precaution.

      Therefore, because the evidence was not obtained in violation of defendant’s Fourth
Amendment rights, the district court erred in granting defendant’s motion to suppress. Davis,
250 Mich App at 362.

                                                IV

        In light of our conclusion that the district court erred in suppressing the evidence, we
must consider whether the evidence presented at the preliminary examination was sufficient to
bind over defendant to the circuit court on the CCW, felony-firearm, and felon in possession of a
firearm charges. Pursuant to MCL 766.13, a magistrate must bind over a defendant for trial
when the prosecutor presents evidence showing that there is probable cause to believe that a
felony has been committed and that the defendant committed it, People v Plunkett, 485 Mich 50,
57; 780 NW2d 280 (2010), meaning that the prosecution must present “evidence from which at
least an inference may be drawn establishing the elements of the crime charged,” People v Yost,
468 Mich 122, 126; 659 NW2d 604 (2003). Probable cause exists when there is “a quantum of
evidence sufficient to cause a person of ordinary prudence and caution to conscientiously
entertain a reasonable belief of the accused’s guilt.” Plunkett, 485 Mich at 57 (quotation marks
and citation omitted). Stated differently,



                                                -6-
       [c]ircumstantial evidence and reasonable inferences arising from the evidence are
       sufficient to support the bindover of the defendant if such evidence establishes
       probable cause. The evidence satisfies the probable cause standard when, by a
       reasonable ground of suspicion, [it is] supported by circumstances sufficiently
       strong to warrant a cautious person in the belief that the accused is guilty of the
       offense charged. [People v Greene, 255 Mich App 426, 444; 661 NW2d 616
       (2003) (quotation marks and citations omitted)].

As such, the standard for probable cause “is less rigorous than the requirement to find guilt
beyond a reasonable doubt to convict a criminal defendant, and the gap between probable cause
and guilt beyond a reasonable doubt is broad.” Plunkett, 485 Mich at 57 (quotation marks and
citations omitted). Accordingly, “[i]f the evidence conflicts or raises a reasonable doubt
concerning the defendant’s guilt, the defendant should nevertheless be bound over for trial, at
which the trier of fact can resolve the questions.” People v Redden, 290 Mich App 65, 84; 799
NW2d 184 (2010).

       The prosecution must establish the following elements to support a CCW in a vehicle
charge: “(1) the presence of a weapon in a vehicle operated or occupied by the defendant, (2) that
the defendant knew or was aware of its presence, and (3) that he was carrying it.” Nimeth, 236
Mich App at 622 (quotation marks and citation omitted). “Carrying” a weapon is similar to
possession; the following factors may be relevant to whether a defendant “carried” a weapon:

       (1) the accessibility or proximity of the weapon to the person of the defendant, (2)
       defendant’s awareness that the weapon was in the motor vehicle, (3) defendant’s
       possession of items that connect him to the weapon, such as ammunition, (4)
       defendant’s ownership or operation of the vehicle, and (5) the length of time
       during which defendant drove or occupied the vehicle. [People v Butler, 413
       Mich 377, 390 n 11; 319 NW2d 540 (1982).]

The elements of felon in possession of a firearm are the following: (1) that the defendant was in
possession of a firearm and (2) that the defendant had been convicted of a specified felony.
MCL 750.224f(2). Possession may be actual or constructive and may be proved by
circumstantial evidence. People v Hill, 433 Mich 464, 470-471; 446 NW2d 140 (1989). A
defendant has constructive possession of a firearm when the defendant has “proximity to the
article together with indicia of control.” Id. at 470. Likewise, a defendant can have constructive
possession if the firearm’s location is known to the defendant and the firearm is reasonably
accessible to the defendant. Id. “The elements of felony-firearm are that the defendant
possessed a firearm during the commission of, or the attempt to commit, a felony.” People v
Taylor, 275 Mich App 177, 179; 737 NW2d 790 (2007) (quotation marks and citation omitted).
Although CCW cannot serve as a predicate felony for a felony-firearm charge, felon in
possession of a firearm can serve as a predicate felony. MCL 750.227b(2); see also People v
Cortez, 206 Mich App 204, 207; 520 NW2d 693 (1994).

        The record shows that the prosecution presented sufficient evidence at the preliminary
examination “to cause a person of ordinary prudence and caution to conscientiously entertain a
reasonable belief” that defendant committed the charged offenses. Plunkett, 485 Mich at 57.
First, Lynem’s observation of the bulge near defendant’s waistband, Lynem’s testimony that

                                               -7-
Searcy’s protective search of the vehicle occupied by defendant produced a nickel-plated
weapon, defendant’s voluntary statement2 in the patrol car indicating that he was aware of the
presence of the gun and that he kept the weapon for protection, and defendant’s proximity to the
location where the weapon was found in the vehicle provided probable cause to believe that
defendant committed the offense of CCW in a vehicle. Nimeth, 236 Mich App at 622. Second,
defendant’s proximity to the weapon, defendant’s statements demonstrating his control of the
weapon, and the parties’ stipulation at the preliminary examination that defendant was ineligible
to possess a firearm on the date of the incident due to his previous conviction of a specified
felony established probable cause to believe that defendant committed the offense of felon in
possession of a firearm. MCL 750.224f(2). Finally, the evidence indicating that defendant
possessed a firearm while committing the offense of felon in possession of a firearm established
probable cause to believe that defendant committed the offense of felony-firearm. Taylor, 275
Mich App at 179. Thus, the district court abused its discretion when it failed to bind defendant
over to the circuit court for trial on the charged offenses, and the circuit court erred in affirming
the district court’s order of dismissal.

       Therefore, for the reasons stated above, we reverse the district court’s order of dismissal,
order the charges reinstated, and remand this case to the district court for entry of an order
binding defendant over to the circuit court. We do not retain jurisdiction.



                                                              /s/ Stephen L. Borrello
                                                              /s/ Kurtis T. Wilder
                                                              /s/ Cynthia Diane Stephens




2
  We note that defendant’s statement was not admitted at the preliminary examination in
violation of his Miranda rights because the statement was made freely and was not made during
custodial interrogation. People v White, 493 Mich 187, 194; 828 NW2d 329 (2013) (“However,
Miranda [v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966)] also clarified that
voluntarily given confessions that are not the result of impermissible custodial interrogations
remain admissible.”); see also id. at 195 (“ ‘[T]he Miranda safeguards come into play whenever
a person in custody is subjected to either express questioning or its functional equivalent.’ ”),
quoting Rhode Island v Innis, 446 US 291, 300-302; 100 S Ct 1682; 64 L Ed 2d 297 (1980).

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