                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     June 26, 2018
               Plaintiff-Appellee,                                   9:00 a.m.

v                                                                    No. 337515
                                                                     Wayne Circuit Court
KEENAN BARBEE,                                                       LC No. 16-006428-01-FH

               Defendant-Appellant.


Before: MURPHY, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

MURPHY, P.J.

       In a bench trial, defendant was convicted of felon in possession of a firearm, MCL
750.224f, felon in possession of ammunition, MCL 750.224f, possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b, and carrying a concealed weapon
(CCW), MCL 750.227. He was sentenced to one to five years’ imprisonment for each of the
convictions, except for the felony-firearm conviction, for which he was sentenced to two years’
imprisonment. We affirm.

        Shortly after midnight on July 8, 2016, police officers on routine patrol in a marked
cruiser observed a parked car with its engine running and headlights on, and the officers pulled
alongside the driver’s side of the vehicle. The officers shined their flashlights at the car,
observing that a female was behind the wheel and that defendant was sitting in the front
passenger seat. There was police testimony that defendant looked shocked and leaned back in
his seat, appearing to pull something out from his waist area with his right hand, followed by
defendant leaning forward as if he were attempting to place something on the floor under his
seat. The officers found the movements suspicious, leading the police to believe that defendant
may be armed. When one of the officers exited the police cruiser, defendant immediately
jumped out of the passenger seat and car, holding a stack of money. Upon defendant being
detained, an officer went to the passenger side of the car, shined his flashlight inside the vehicle
at the floorboard, and observed the back of a gun handle partly under the seat, giving rise to an
inference, considering defendant’s movements, that he had put the firearm in that spot in a
frantic attempt to conceal it under the seat. The gun was seized, and defendant was arrested.
Defendant testified that he had no knowledge that the gun was in the car, that he had never
possessed the weapon on his person, that he did not see the gun in the vehicle, and that he did not
own the firearm.


                                                -1-
        At the bench trial, defense counsel attempted to argue that evidence of the gun should be
suppressed, considering that the officers lacked probable cause to stop and search the vehicle;
however, the trial court refused to consider the argument, as counsel had failed to challenge the
search and seizure in a pretrial motion. On appeal, defendant argues that defense counsel was
ineffective for not filing a pretrial motion to suppress the firearm and that there was insufficient
evidence to support the convictions. We disagree.

        With respect to the claim of ineffective assistance of counsel, defendant argues that the
car was lawfully parked in front of his home, that he and the female driver were quietly saying
goodnight, that they had an expectation of privacy, that there was no indication by the officers
that the neighborhood was rampant with criminal activity, and that “the police did not provide a
single reason for coming up on defendant’s car so clandestinely and shining their flashlights into
it[.]” Defendant contends that the plain view doctrine could not be invoked, because the doctrine
requires that an officer be in a place where he or she had a right to be, and the police in the
instant case had no right to pull up within a couple feet of the car and then shine their flashlights
inside. Defendant maintains that the officers needed to have some articulable suspicion of
criminal activity being afoot to proceed as they did, and there was none. Defendant appears to
accept that a police officer may generally, but not always, utilize a flashlight, but only if the
officer was rightfully and lawfully positioned when doing so.

        Defendant makes clear that his argument is not that his movements, i.e., leaning back,
appearing to pull something from his waist area, and then leaning forward as if to put something
under the seat, did not give rise to probable cause or reasonable suspicion to temporarily detain
him, nor does he appear to contend that it was improper to shine the flashlight on the passenger
side floorboard where the gun was found. Rather, the entire premise of defendant’s argument is
that it was unconstitutional for the police to be in the position from which they initially saw
defendant’s movements; therefore, counsel was ineffective for not filing a pretrial motion to
suppress the gun.

       Defendant’s argument is couched, at least in part, in terms of the plain view doctrine, and
in People v Champion, 452 Mich 92, 101; 549 NW2d 849 (1996), the Supreme Court observed:

               The plain view doctrine allows police officers to seize, without a warrant,
       items in plain view if the officers are lawfully in a position from which they view
       the item, and if the item's incriminating character is immediately apparent. A
       fundamental characteristic of the doctrine is that it is exclusively a seizure
       rationale. No searching, no matter how minimal, may be done under the auspices
       of the plain view doctrine. [Citations omitted.]

As can be gleaned from this passage, the plain view doctrine is not technically applicable to the
specific argument being made by defendant. Defendant’s argument is more akin to cases
involving whether the police can gather incriminating information from a particular vantage
point to then justify a search or search warrant based on the information, or whether police
conduct at that vantage point in gathering the information is itself a search implicating Fourth
Amendment protections. We are addressing an argument that falls under what has been coined
the “open view doctrine.” In State v Clark, 124 Idaho 308, 311-313; 859 P2d 344 (1993), the
Idaho Court of Appeals gave the following helpful explanation:

                                                -2-
               Both parties here urge application of a “plain view” analysis. . . .
       However, we conclude that the plain view doctrine is not the proper framework
       for analysis of [the officer’s] . . . observation through the [mobile home’s] corner
       window, for the plain view doctrine addresses the validity of
       warrantless seizures, not searches.

              [The] United States Supreme Court [has] clarified that the plain view
       doctrine is a constitutionally recognized justification only for warrantless seizures,
       not warrantless searches[.]

                                                 ***

               [T]he plain view doctrine refers only to the circumstances where an officer
       has a prior justification for an intrusion into a constitutionally protected area or
       activity and in the course of that intrusion spots and seizes incriminating
       evidence. . . . Accordingly, it is warrantless seizures of readily visible items, not
       warrantless searches, that are limited by the criteria delineated under the plain
       view doctrine.

                The validity of a law enforcement officer's mere observation of objects or
       activities requires a different analysis. If the officer intruded into an area where a
       privacy interest exists in order to gain the view, the intrusion must be justified by
       one of the recognized exceptions to the warrant requirement. However, a
       policeman's mere observation from a vantage point that does not infringe upon a
       privacy interest, of something open to public view, normally implicates no Fourth
       Amendment constraints because observation of items readily visible to the public
       is not a “search.” . . . What a person knowingly exposes to the public, even in his
       own home or office, is not a subject of Fourth Amendment protection.

               This Court and others have used the term “open view doctrine” to refer to
       this rule that no Fourth Amendment “search” occurs where a law enforcement
       officer observes incriminating evidence or unlawful activity from a non-intrusive
       vantage point. State v Ramirez, 121 Idaho 319, 322; 824 P2d 894 (Idaho App,
       1992) (officer's view into a car in a public parking lot) . . . . The “open view”
       terminology distinguishes the analysis applicable to warrantless observations from
       the legally distinct “plain view” doctrine applicable to seizures.

               The open view analysis must be applied to determine whether [the
       officer’s] view through the corner window was an unreasonable search prohibited
       by the Fourth Amendment. . . . If his vantage point was not within a
       constitutionally protected area, his observation using only his normal vision to see
       that which was open to public gaze, was permissible under the open view
       doctrine. [Citations and quotation marks omitted.]

       The Idaho court relied in part on Texas v Brown, 460 US 730, 739; 103 S Ct 1535; 75 L
Ed 2d 502 (1983), wherein the United States Supreme Court indicated that the plain view
doctrine provides a basis to seize an item when the officer’s access to the object had some

                                                -3-
previous justification under the Fourth Amendment. The Court cautioned that it is important to
distinguish “plain view” justifying a seizure of an object from an officer’s observation of an item
left in plain or open sight, the latter of which does not involve a Fourth Amendment search. Id.
at 739 n 4. The information gleaned as a result of observation of an object in plain or open sight
can form the basis of probable cause or reasonable suspicion to proceed further. Id. The concept
of open view was noted recently by our Supreme Court in People v Frederick, 500 Mich 228,
237 n 4; 895 NW2d 541 (2017):

               For example, looking into the windows of a home from a sidewalk or
       other public area is not a search. But it is information-gathering, such that, if the
       police trespass on the home's curtilage and peer through the windows from that
       vantage point, they have conducted a search. The trespass converts conduct that
       would not otherwise constitute a search into a search.[1]

        Accordingly, the more precise question here is whether the police conducted a search that
implicated Fourth Amendment protections by simply pulling up to the vehicle in which
defendant was a passenger and observing movements taking place inside the car aided with
flashlights. Stated otherwise, the issue is whether defendant’s movements inside the car were in
“open view.” In turn, as explained below, the analysis requires a determination whether
defendant had a reasonable expectation of privacy or whether the officers’ conduct constituted a
trespass for purposes of information gathering.

       In Frederick, 500 Mich 228, the Michigan Supreme Court examined whether police
conduct amounted to permissible “knock and talks” or warrantless searches in violation of the
Fourth Amendment, where police made early morning unscheduled visits to the two defendants’
homes, obtained consents to search, and discovered marijuana-related products in each home.
The Court held:

               Because these knock and talks were outside the scope of the implied
       license [to go up to a house and knock on a door], the officers trespassed on
       Fourth-Amendment-protected property. And because the officers trespassed while
       seeking information, they performed illegal searches. Finally, because of these
       illegal searches, the defendants' consent—even if voluntary—is nonetheless
       invalid unless it was sufficiently attenuated from the illegality. [Id. at 244.]

       As part of the analysis, the Frederick Court acknowledged the decision in Florida v
Jardines, 569 US 1; 133 S Ct 1409; 185 L Ed 2d 495 (2013), where the police went to the front
door of a house with a trained police dog who explored the area and alerted officers of the smell
of drugs, which information was then used to obtain a search warrant. Frederick, 500 Mich at
234-236. Our Supreme Court noted that the Jardines Court held that introducing a trained police
dog to explore around the outside of a home in hopes of discovering incriminating information


1
 See also Florida v Riley, 488 US 445; 109 S Ct 693; 102 L Ed 2d 835 (1989) (examining
whether officer’s observation of partially covered greenhouse in a backyard from the vantage
point of a helicopter was a search under the Fourth Amendment).


                                                -4-
went beyond any customary invitation typically applicable to a limited licensee (knock promptly,
wait briefly for response, and then leave unless invited to linger longer), thereby trespassing on
protected property under the Fourth Amendment. Frederick, 500 Mich at 236. The Frederick
Court observed that the rule emanating from Jardines is that a trespass plus an attempt to gather
information constitutes a search and thus implicates Fourth Amendment protections. Id. Our
Supreme Court also noted that the expectation-of-privacy analysis for purposes of the Fourth
Amendment set forth in Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967),
along with the property-rights or trespass analysis pertaining to the Fourth Amendment, are both
part of Fourth Amendment jurisprudence subject to consideration. Frederick, 500 Mich at 235 n
2.

       We hold that there was no reasonable expectation of privacy by defendant relative to his
movements in the car parked on a public street and that there was no trespass by the police when
they pulled up to the vehicle and looked inside. Therefore, the Fourth Amendment was not
implicated and there was no search at the point in time when the police pulled alongside the
parked car and observed defendant’s movements therein. There plainly was no trespass, and
defendant, while arguing that the officers’ conduct was intrusive, makes no claim of a trespass.
Defendant does maintain that he and his female companion had a reasonable expectation of
privacy. We disagree. In Brown, 460 US at 740, the United States Supreme Court ruled:

              [T]he fact that [the officer] changed his position and bent down at an angle
       so he could see what was inside Brown's car . . . is irrelevant to Fourth
       Amendment analysis. The general public could peer into the interior of Brown's
       automobile from any number of angles; there is no reason [the officer] should be
       precluded from observing as an officer what would be entirely visible to him as a
       private citizen. There is no legitimate expectation of privacy, shielding that
       portion of the interior of an automobile which may be viewed from outside the
       vehicle by either inquisitive passersby or diligent police officers. In short, the
       conduct that enabled [the officer] to observe the interior of Brown's car and of his
       open glove compartment was not a search within the meaning of the Fourth
       Amendment. [Citations, quotation marks, and alteration brackets omitted.2]

       Accordingly, we conclude that defendant did not have a reasonable or legitimate
expectation of privacy in the vehicle that was parked on a public street. To the extent that



2
  See also State v Harris, 98 Ohio App 3d 543, 547; 649 NE2d 7 (1994) (a person generally has
no reasonable expectation of privacy in a public area, as there is always a risk that others will see
things in open view, and while a defendant “may have a subjective expectation of privacy in his
car while parked in a business lot, it is not one which this court, or more importantly society is
prepared to recognize as reasonable”) (quotation marks omitted); State v Ramirez, 121 Idaho
319, 322; 824 P2d 894 (1991) (car located in the parking lot of a bar is readily subject to
observation by members of the public, and there exists no cognizable right to privacy in that
portion of the vehicle’s interior that may be viewed from outside the car by either an inquisitive
passersby or a diligent police officer).


                                                 -5-
defendant’s argument encompasses employment of the flashlights by the officers, it is
unavailing. See Brown, 460 US at 740 (“Numerous . . . courts have agreed that the use of
artificial means to illuminate a darkened area simply does not constitute a search, and thus
triggers no Fourth Amendment protection.”); People v Custer (On Remand), 248 Mich App 552,
562; 640 NW2d 576 (2001) (if a police officer's observation would not have constituted a search
had it taken place in the daylight, then the fact that the officer used a flashlight to see through the
nighttime darkness does not transform any observation into a search).3

       In sum, because filing a pretrial motion to suppress the gun would have been futile,
defense counsel was not ineffective, as counsel is not required to file meritless or futile motions.
People v Fonville, 291 Mich App 363, 384; 804 NW2d 878 (2011).

        Defendant next argues that there was insufficient evidence to prove beyond a reasonable
doubt that he had ever possessed the gun. Again, we disagree. Viewing the direct and
circumstantial evidence in a light most favorable to the prosecution, People v Reese, 491 Mich
127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002),
adhering to the principle that we must not interfere with the trier of fact’s role in assessing the
weight of the evidence and the credibility of the witnesses, People v Wolfe, 440 Mich 508, 514-
515; 489 NW2d 748 (1992), appreciating that circumstantial evidence and reasonable inferences
arising from such evidence can constitute satisfactory proof of an element of a crime, People v
Carines, 460 Mich 750, 757; 597 NW2d 130 (1999), including firearm possession, People v
Johnson, 293 Mich App 79, 83; 808 NW2d 815 (2011), and resolving all conflicts in the
evidence in favor of the prosecution, People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57
(2008), we hold that there was sufficient evidence for the trial court to find beyond a reasonable
doubt that defendant possessed the gun.4

        Despite the lack of any direct evidence that defendant physically possessed the gun, we
hold that there existed sufficient circumstantial evidence from which it could be reasonably
inferred that defendant had actually possessed the gun before and at the time the police pulled up
next to the vehicle in which defendant was a passenger. See People v Minch, 493 Mich 87, 91;


3
  Although defendant’s argument does not reach the issues, we find that defendant’s suspicious
movements inside the car justified, minimally, a brief Terry detention for purposes of
investigating the possibility of criminal activity being afoot. People v Custer, 465 Mich 319,
326-327; 630 NW2d 870 (2001), citing Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889
(1968). And the officer’s observation of the back of the gun handle was from a lawful position
regardless of the use of the flashlight, Custer, 248 Mich App at 562, thereby implicating, at this
juncture, the plain view doctrine, Champion, 452 Mich at 101, allowing for the seizure of the
gun.
4
  “Possession” is an element of felon-in-possession, MCL 750.224f; People v Bass, 317 Mich
App 241, 268; 893 NW2d 140 (2016), and felony-firearm, MCL 750.227b; People v Peals, 476
Mich 636, 640; 720 NW2d 196 (2006); Johnson, 293 Mich App at 82-83, and the “carrying”
element of CCW has been equated to possession, People v Butler, 413 Mich 377, 390 n 11; 319
NW2d 540 (1982).


                                                 -6-
825 NW2d 560 (2012) (possession of a firearm can be either actual or constructive).5 The police
testimony describing defendant’s suspicious movements and his startled appearance when the
officers stopped, his conduct in immediately jumping out of the vehicle, and the discovery of the
weapon part way under the passenger seat, which location would be consistent with the nature of
defendant’s movements that suggested he had placed something under his seat, gave rise to a
reasonable inference that defendant had physically handled and possessed the firearm. The
evidence was sufficient to support the verdicts.

       Affirmed.


                                                           /s/ William B. Murphy
                                                           /s/ Amy Ronayne Krause




5
  It appears from the trial court’s written opinion and comments from the bench that the court
found that defendant had actually possessed the gun, absent any reliance on constructive
possession.


                                               -7-
