                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 31, 2016
               Plaintiff-Appellant,

v                                                                    No. 329023
                                                                     Oakland Circuit Court
ROBERT EROLL WRIGHT,                                                 LC No. 2015-146032-AR

               Defendant-Appellee.


Before: TALBOT, C.J., and WILDER and BECKERING, JJ.

PER CURIAM.

        The prosecution appeals by leave granted the circuit court’s opinion and order affirming
the district court’s orders suppressing evidence and dismissing an operating while intoxicated
(OWI), MCL 257.625, charge against defendant, Robert Wright. The district court entered its
order of dismissal after suppressing the results of a preliminary chemical breath test (PBT)1
administered after defendant was subjected to a traffic stop for defective equipment. Because we
find that there was reasonable cause to require the PBT in this case, we reverse and remand for
further proceedings.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        This case arises out of a traffic stop performed by Michigan State Police Troopers Angelo
Brown and Roger Haddad on May 23, 2014. At approximately 3:30 a.m., the officers noticed
that defendant’s vehicle did not have working license plate lights and decided to initiate a traffic
stop.




1
  A PBT often serves as a precursor to a subsequent chemical breath test (CBT), which in this
case was administered in the form of a blood draw at a local hospital. The results of a PBT are
inadmissible as substantive evidence of intoxication, whereas a CBT is performed “after an
offender has been arrested and [the results of the test are] admissible in court as evidence of
intoxication.” People v Gregg, 489 Mich 903, 904 n 2; 796 NW2d 263 (2011) (MARILYN
KELLY, J., dissenting).


                                                -1-
         After defendant pulled his vehicle over, Brown and Haddad left their marked police
vehicle and approached from either side of defendant’s vehicle. As Brown approached the
driver’s side, he noticed that defendant had his hand beneath his (defendant’s) thigh. Brown,
thinking defendant might have a gun, yelled twice and directed defendant to show his hands.2
Because defendant did not comply, Brown drew his service weapon and ran to the back of the
vehicle. At that time, defendant placed his hands on the steering wheel, and Haddad told Brown
“that it was all clear.” According to Haddad, defendant was “fumbling” while trying to produce
his wallet, and he “finally” produced his wallet after his initial delay.

        Brown approached defendant’s vehicle a second time and “detected an odor of
intoxicants and burnt marijuana.”3 Defendant complied with Brown’s requests to provide his
identification and registration. Because of the odor of intoxicants and marijuana, Brown asked
defendant to exit his vehicle, and defendant complied. Brown placed defendant in handcuffs
“immediately” after he stepped out of the vehicle. Brown asked defendant if “he’s had anything
to drink,” and defendant responded that he had consumed three shots of cognac.4 Brown
admitted that defendant did not appear to have trouble maintaining his balance, and that
defendant, aside from failing to comply with the command to show his hands, complied with the
rest of the commands given to him. Brown also admitted that neither he nor Haddad asked
defendant to perform any roadside sobriety tests, even though some of the roadside sobriety tests
could be performed by a suspect who was handcuffed.

        At some point after the stop—the precise time is unclear from the evidentiary hearing—
Brown asked defendant to submit to a PBT. The PBT showed that defendant had a blood-
alcohol concentration of 0.176, which is well above the legal limit. Brown and Haddad had
defendant’s vehicle towed and brought defendant to the police station. When specifically asked
at the evidentiary hearing why he asked defendant to take the PBT, Brown replied:

          I believed that [defendant] could’ve been intoxicated, the way he was acting
          initially, his slow [sic] to reactions. I gave two loud verbal commands and he
          disregarded both of them, and that’s it.

      The prosecution charged defendant with OWI. On December 19, 2014, defendant filed a
motion to suppress. According to defendant, Brown lacked reasonable cause under MLC




2
  Brown initially testified that he “believed” the windows on defendant’s vehicle were open at
this time. He later conceded, “[t]o be honest with you, I don’t know if his window was down.
But I was making loud verbal commands.”
3
    Haddad testified that he could smell marijuana from the passenger side of the vehicle.
4
  At an evidentiary hearing, Brown initially testified that defendant was still in his vehicle at the
time he made the admission about consuming alcohol; however, Brown, after reviewing
Haddad’s written report about the incident, clarified that defendant was outside of the vehicle
and in handcuffs at the time.


                                                 -2-
257.625a(2) to administer the PBT and the results of the PBT should be suppressed. Without the
PBT, Brown lacked probable cause to arrest, and the charge should be dismissed.

      In an opinion delivered from the bench, the district court granted defendant’s motion on
March 5, 2015. The court reasoned that

       there was no probable cause to administer the PBT when there had not been a
       single sobriety test on [defendant] prior to administrating [sic], nor did the trooper
       observe any erratic [or] impaired driving. And that Trooper Brown lack[ed]
       reasonable cause to administer the PBT therefore it shall be suppressed.

        On appeal, the circuit court affirmed the district court’s order. The circuit court agreed
that Brown “did not have reasonable cause to believe that Defendant’s ability to operate his
vehicle was affected,” and therefore “there was no reasonable cause to administer the PBT and
the results were properly suppressed.” The court explained:

       The troopers in the instant case did not have any evidence that Defendant’s ability
       to operate his vehicle was impaired. Neither trooper observed any erratic
       behavior from Defendant. Neither trooper testified to observing any physical
       manifestations of intoxication from Defendant. There was no testimony regarding
       Defendant’s failure of a field sobriety test. There was no testimony regarding
       when Defendant consumed the three shots of cognac in relation to his operation of
       the vehicle. Both troopers testified that other than Defendant’s failure to
       immediately place his hands on the steering wheel, Defendant was perfectly
       compliant with all orders, non-combative and non-aggressive. Taken as a whole,
       the testimony from the troopers provides no evidence that Defendant was
       impaired or failed to comply with their orders.

       The prosecution’s appeal of the suppression of the PBT and dismissal of the OWI charge
is now before us on leave granted.

                                         II. ANALYSIS

        The prosecution argues that the district court and circuit court erred when they concluded
that the officers lacked reasonable cause to administer the PBT. We agree.

         This Court reviews a trial court’s findings of fact in a suppression hearing for clear error.
People v Hyde, 285 Mich App 428, 438; 775 NW2d 833 (2009). A decision is clearly erroneous
if, although there is evidence to support it, the reviewing court is left with a definite and firm
conviction that a mistake has been made. People v Miller, 482 Mich 540, 544; 759 NW2d 850
(2008). The ultimate decision on a motion to suppress is reviewed de novo. Hyde, 285 Mich
App at 438. Whether a search violated the Fourth Amendment, whether an exclusionary rule
applies, and whether an officer’s suspicion is reasonable under the Fourth Amendment are
questions of constitutional law that this Court reviews de novo. Id.; People v Bloxson, 205 Mich
App 236, 245; 517 NW2d 563 (1994). Finally, this Court reviews issues involving statutory
interpretation and application de novo. People v Stone Transport, Inc, 241 Mich App 49, 50;
613 NW2d 737 (2000).

                                                 -3-
       The Fourth Amendment to the United States Constitution guarantees the right against
unreasonable searches and seizures, US Const, Am IV; see also Const 1963, art 1, § 11; People
v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000), and both the United States Supreme
Court and this Court have held that chemical breath tests for alcohol constitute “searches” within
the meaning of the Fourth Amendment, Skinner v Railway Labor Executives’ Ass’n, 489 US
602, 616-617; 109 S Ct 1402; 103 L Ed 2d 639 (1989); People v Chowdhury, 285 Mich App
509, 523-524; 775 NW2d 845 (2009). Generally, the introduction into evidence of materials
seized and observations made during an unreasonable search is barred by the exclusionary rule.
People v Hawkins, 468 Mich 488, 498-499; 668 NW2d 602 (2003).

        “Generally, seizures are reasonable for purposes of the Fourth Amendment only if based
on probable cause.” People v Lewis, 251 Mich App 58, 69; 649 NW2d 792 (2002). In Terry v
Ohio, 392 US 1, 30–31; 88 S Ct 1868; 20 L Ed 2d 889 (1968), the United States Supreme Court
carved out an exception to the probable cause requirement. It determined that the Fourth
Amendment permits the police to stop and briefly detain a person for investigation based on
reasonable and articulable suspicion that criminal activity may be afoot. Id. at 21, 30-31. The
Terry exception has been extended to incorporate investigative stops under a variety of
circumstances for specific law enforcement needs, including traffic stops. People v Nelson, 443
Mich 626, 631; 505 NW2d 266 (1993). If an investigative stop of an automobile is proper, the
officer is “permitted to briefly detain the vehicle and make reasonable inquiries aimed at
confirming or dispelling his suspicions.” People v Yeoman, 218 Mich App 406, 411; 554 NW2d
577 (1996). These stops should last long enough only to confirm or dispel the officer’s initial
suspicion, but can in many cases produce evidence to establish probable cause for arrest or a
more thorough search. People v Barbarich, 291 Mich App 468, 473; 807 NW2d 56 (2011).

        In this case, there is no dispute that the officers had cause to initiate a traffic stop of
defendant’s vehicle based on their direct observation of defective equipment, a point to which
defendant has conceded. And defendant does not contend that the officers lacked a reasonable
and articulable suspicion justifying a brief detention in order to make reasonable inquiries aimed
at confirming or dispelling their suspicions arising from defendant’s initial noncompliance and
the smell of burnt marijuana and intoxicants inside the vehicle. See Yeoman, 218 Mich at 411.
The heart of the issue on appeal is whether the officers had reasonable cause to require a PBT.
Under MCL 257.625a(2), an officer may require a PBT based on “reasonable cause.” In
pertinent part, that statute5 reads:

       (2) A peace officer who has reasonable cause to believe that a person was
       operating a vehicle upon a public highway . . . within this state and that the person
       by the consumption of alcoholic liquor may have affected his or her ability to
       operate a vehicle . . . may require the person to submit to a preliminary chemical
       breath analysis. The following provisions apply with respect to a preliminary
       chemical breath analysis administered under this subsection:


5
 MCL 257.625a has since been amended; this opinion will refer to the version that was in effect
on May 23, 2014, the date of the traffic stop.


                                                -4-
       (a) A peace officer may arrest a person based in whole or in part upon the results
       of a preliminary chemical breath analysis. [MCL 257.625a(2) (emphasis added).]

        The parties dispute whether the phrase “reasonable cause” used in the statute is the
equivalent of “probable cause,”6 or whether it is the equivalent of a lesser standard, such as
reasonable suspicion.7 We need not weigh in on this matter because we find that the totality of
the evidence available to Brown and Haddad was sufficient to establish probable cause—and, by
extension, any lesser standard—that defendant was operating a motor vehicle and that the
consumption of alcohol may have affected his ability to do so. See MCL 257.625a(2). Hence,
regardless of whether “reasonable cause” is the equivalent of “probable cause,” we find that the
totality of the circumstances present to Brown and Haddad was sufficient under MCL
257.625a(2) to require a PBT in this case.8

       In finding that reasonable cause existed, we review the totality of the factors present, but
focus primarily on three pertinent factors. The first of which is that, as Brown and Haddad
approached the car, Brown twice shouted to defendant to show his hands; defendant did not
immediately comply, which Brown interpreted as a “slow” reaction to his commands. Although
defendant later complied with the officers’ subsequent commands, it appears undisputed that he


6
  “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).
7
  “Reasonable suspicion entails something more than an inchoate or unparticularized suspicion or
‘hunch,’ but less than the level of suspicion required for probable cause.” People v Rizzo, 243
Mich App 151, 156; 622 NW2d 319 (2000) (citation and quotation marks omitted).
8
  In passing, the prosecution argues that defendant consented to the PBT; thus, it does not matter
whether reasonable cause existed for the police officers to require defendant to submit to the test.
Consent is an exception to the probable cause requirement for searches. People v Borchard-
Ruhland, 460 Mich 278, 294; 597 NW2d 1 (1999). In order to be valid, consent must be freely
and voluntarily given. Id. On the issue of whether defendant’s consent was voluntary, we note
that the matter was not explored in detail below. We also note that defendant was in custody and
under arrest at the time he was asked to submit to the PBT. The prosecution bears a
“particularly heavy” burden of proving that the consent was voluntary when an individual is
under arrest; however, a defendant being in custody does not necessarily require the conclusion
that consent was involuntary. People v Reed, 393 Mich 342, 366; 224 NW2d 867 (1975); People
v Kaigler, 368 Mich 281, 294; 118 NW2d 406 (1962). See also United States v Watson, 423 US
411, 424; 96 S Ct 820; 46 L Ed 2d 598 (1976) (“the fact of custody alone has never been enough
in itself to demonstrate a coerced confession or consent to search.”). Nonetheless, we decline to
weigh in on this issue because whether consent is voluntarily given is a question of fact,
Borchard-Ruhland, 460 Mich at 294, and it does not appear that the issue of consent was fully
explored below. Furthermore, the parties’ briefs on appeal contain only passing mention to the
idea of consent.


                                                -5-
did not initially comply with Brown’s loud verbal commands. Also, according to Haddad,
defendant was “fumbling” and was slow in producing his wallet. This could suggest evidence of
impairment. The circuit court minimized defendant’s initial non-compliance by pointing out that
he complied with the majority of the officers’ commands; however, this ignores that defendant
did not initially comply, that Brown found his reactions to be “slow,” and that Haddad testified
that defendant was “fumbling” and slow to produce his wallet, an activity that is not altogether
difficult or extraordinary for someone who is not impaired.

         The second factor we find to be significant in this case is that both officers detected the
odor of burnt marijuana and intoxicants emanating from defendant’s vehicle. Defendant was the
only occupant of the vehicle at the time, and it was reasonable for the officers to conclude that he
had some connection with these odors. As to the final pertinent factor—and perhaps the piece
that tied everything together—defendant admitted to having consumed three shots of cognac.9
This confirmed that defendant was likely connected to the odor of intoxicants and that he had
been drinking that evening. Further, it made it likely that he had been drinking recently enough
for the odor of intoxicating liquor to continue to emanate from the automobile at the time of the
traffic stop. And, defendant confirmed that he had consumed multiple drinks, which provided
further evidence of possible impairment.

        In sum, we hold that the number of drinks, combined with the odor of intoxicants, as well
as defendant’s initial failure to comply with two loud verbal commands—wherein the delay was
sufficiently concerning so as to cause Haddad to draw his service weapon and retreat out of
concern over the reason for such delay—was enough to give the officers sufficient cause to
believe that defendant, “by the consumption of alcoholic liquor may have affected his . . . ability
to operate a vehicle[.]” See MCL 257.625a(2). The statute does not, as the district court and
circuit court concluded, require actual evidence of impairment, just that the person, “by the
consumption of alcoholic liquor may have affected his or her ability to operate a vehicle[.]”
Although we do not believe that any of the facts of this case would, standing alone, have
authorized the officers to require a PBT, we hold that, when viewed together, there was sufficient
evidence to constitute probable cause—or some lesser standard.

        In so concluding, we note that this is a close case; however, it is one that did not need to
be this close. Although the finding of reasonable cause does not require roadside sobriety tests,
had the officers performed those tests instead of immediately arresting defendant, there could


9
  It appears from the record that defendant’s voluntary admission about his alcohol consumption
came after he was already in custody. Also, it does not appear that defendant was advised of his
rights pursuant to Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). While
any voluntary statement defendant gave in violation of Miranda would not be admissible at trial,
the fruits of such voluntary statement are not “inherently tainted” for all purposes. People v
Melotik, 221 Mich App 190, 199; 561 NW2d 453 (1997) (citation and quotation marks omitted).
See also United States v Patane, 542 US 630, 641-642; 124 S Ct 2620; 159 L Ed 2d 667 (2004).
Thus, we need not disregard the statement for purposes of determining whether there was
probable cause for requiring the PBT. See Melotik, 221 Mich App at 199.


                                                -6-
have been a much stronger case for reasonable cause under MCL 257.625a(2). Nevertheless, our
preferences do not amount to constitutional or statutory requirements, and we believe that the
facts of this case gave the officers enough information, based on the limited and somewhat
perfunctory investigation, to satisfy the reasonable cause requirement of MCL 257.625a(2).

                                       III. CONCLUSION

       Because the facts of this case were sufficient to provide Brown and Haddad with
reasonable cause under MCL 257.625a(2), regardless of whether “reasonable cause” is
equivalent to probable cause or some lesser standard, we find that circuit court and district court
erred. Accordingly, we reverse the order of suppression and remand for further proceedings
consistent with this opinion. We do not retain jurisdiction.



                                                            /s/ Michael J. Talbot
                                                            /s/ Kurtis T. Wilder
                                                            /s/ Jane M. Beckering




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