            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    August 22, 2019
               Plaintiff-Appellant,

v                                                                   No. 346451
                                                                    Oakland Circuit Court
ROBERT EROLL WRIGHT,                                                LC No. 2018-167560-AR

               Defendant-Appellee.


Before: SHAPIRO, P.J., and GLEICHER and SWARTZLE, JJ.

PER CURIAM.

        This is a five-year-old operating-while-intoxicated case, which has twice wound its way
through the district court and circuit court and landed before us. In 2015, the lower courts found
no probable cause existed to administer a PBT test and therefore suppressed the evidence and
dismissed the charge raised against defendant Robert Wright. This Court reversed, holding that
“the totality of the evidence available” to the investigating troopers “was sufficient to establish
probable cause—and, by extension, any lesser standard—that” Wright was operating while
intoxicated, supporting the provision of a PBT test. People v Wright, unpublished per curiam
opinion of the Court of Appeals, issued March 31, 2016 (Docket No. 329023), slip op at 5
(Wright I).

        On remand, Wright contended that the troopers failed to follow proper protocol in
administering the PBT and that absent the test results, the troopers lacked probable cause to
arrest. The lower courts agreed, suppressed the evidence, and dismissed the charge. The
prosecutor again appeals, contending that even absent the PBT results, the troopers had probable
cause to arrest Wright. Evidence that Wright was intoxicated emerged shortly after he was
stopped, supporting probable cause for his arrest. Accordingly, we must reverse and remand for
further proceedings.

                                       I. BACKGROUND

       At approximately 3:30 a.m. on May 23, 2014, Michigan State Police Troopers Angelo
Brown and Roger Haddad effectuated a traffic stop of Wright’s vehicle because his license plate
light was out. This was a civil infraction for “defective equipment.” A report prepared shortly


                                                -1-
after Wright’s arrest described that “Wright exhibited glassy, blood shot eyes, odor of
intoxication on breath, confusion, slow movement and was having a hard time comprehending
simple instruction.”

        At the 2015 district court hearing on Wright’s motion to suppress the evidence against
him, Trooper Brown testified that he and his partner never observed Wright driving erratically;
they pulled him over simply because of the illumination issue. As Brown approached the
vehicle, he observed Wright putting his right hand under his right thigh. Concerned that Wright
might have a weapon, Brown ordered Wright to “show me his hands.” Wright disregarded two
commands and only placed his hands on the steering wheel when Brown pulled out his gun.
Brown admitted that he was not certain whether the vehicle’s windows were open, but he
“believe[d]” at least the driver-side front window was rolled down. In any event, Brown stated
that he “was yelling” and was “[a]bsolutely” “loud enough” for Wright to hear. This was
especially true as Wright’s radio was not on.

        Once he received the all clear from his partner, Trooper Brown walked from the back of
the car toward the driver-side front window. He “detected an odor of intoxicants and burnt
marijuana.” “[T]he odor of burnt marijuana” supplied grounds to arrest Wright for
“misdemeanor use or possession,” Brown testified, and he therefore ordered Wright to exit the
vehicle. Brown placed Wright in handcuffs and asked if Wright had consumed any alcohol that
night. Wright indicated that “he had three (3) shots of” cognac. When asked at the hearing if
Wright was under arrest once he was handcuffed, Brown indicated that Wright was “being
retained . . . so I can further investigate what was in the vehicle or on him.”

        Trooper Haddad similarly testified in 2015 that Wright did not immediately comply with
orders to show his hands. Instead he “fumbl[ed] around on his side, and finally he did produce
his wallet.” Trooper Haddad could also smell burnt marijuana and alcohol from his position on
the passenger side of the vehicle. The troopers did not ask Wright to perform any field sobriety
tests. However, at some point, they administered a PBT, which revealed a BAC of 0.176. As a
result, the prosecution charged Wright with operating while impaired in violation of MCL
257.625(1)(b).1



1
    At the time Wright was charged, MCL 257.625(1)(b) provided:
         (1) A person, whether licensed or not, shall not operate a vehicle upon a highway
         or other place open to the general public or generally accessible to motor vehicles,
         including an area designated for the parking of vehicles, within this state if the
         person is operating while intoxicated. As used in this section, "operating while
         intoxicated" means any of the following:

                                               * * *

          (b) The person has an alcohol content of 0.08 grams or more . . . per 210 liters
         of breath . . . .



                                                 -2-
       Wright filed a motion to suppress the PBT results and dismiss the charges against him,
arguing that the troopers lacked “reasonable cause” to administer the test.2 The district court
granted the motion, finding a lack of probable cause where no field sobriety tests were conducted
and neither trooper observed Wright driving in an erratic or impaired manner. The prosecutor
appealed to the circuit court, which affirmed. The prosecutor then appealed to this Court, which
reversed and remanded for continued proceedings. In doing so, this Court reasoned:

       The parties dispute whether the phrase “reasonable cause” used in the statute is
       the equivalent of “probable cause,” or whether it is the equivalent of a lesser
       standard, such as reasonable suspicion. 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 [Wright] 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.

                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
       [Wright] to show his hands; [Wright] did not immediately comply, which Brown
       interpreted as a “slow” reaction to his commands. Although [Wright] later
       complied with the officers’ subsequent commands, it appears undisputed that he
       did not initially comply with Brown’s loud verbal commands. Also, according to
       Haddad, [Wright] was “fumbling” and was slow in producing his wallet. This
       could suggest evidence of impairment. The circuit court minimized [Wright’s]
       initial non-compliance by pointing out that he complied with the majority of the
       officers’ commands; however, this ignores that [Wright] did not initially comply,
       that Brown found his reactions to be “slow,” and that Haddad testified that
       [Wright] 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 [Wright’s]
       vehicle. [Wright] 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



2
  At the time of Wright’s arrest, MCL 257.625a(2) provided that an officer “who has reasonable
cause to believe that a person was operating a vehicle . . . and that the person by the consumption
of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of
them may have affected his or her ability to operate a vehicle . . . may require the person to
submit to a preliminary chemical breath analysis.”


                                                -3-
       together—[Wright] admitted to having consumed three shots of cognac. This
       confirmed that [Wright] 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, [Wright]
       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 [Wright’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 [Wright],
       “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 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). [Wright I, slip op at 5-7.]

        On remand, Wright filed a new motion to suppress the PBT evidence, this time arguing
that the troopers failed to follow protocol in administering the test. The district court agreed and
suppressed the PBT evidence. The prosecutor did not challenge that ruling on appeal to the
circuit court and does not do so before this Court, either, and we need not consider it further.
However, the district court also dismissed the charge against Wright, concluding that without the
PBT results, there was insufficient information to form probable cause to arrest.

        The district court conducted a new evidentiary hearing before suppressing the evidence
and dismissing the charge. The court first took notice of the 2015 hearing. Trooper Haddad then
recounted that Wright “was immediately placed in handcuffs” upon his exiting the vehicle “due
to the odor of intoxicating substances and marijuana coming from the vehicle, along with arag
[sic] movements.” The prosecutor asked Trooper Brown for the first time to describe Wright’s
physical appearance during the stop. Brown described that Wright’s eyes were “bloodshot” and
“watery”. He also reiterated that Wright’s movements were slow and that he could not comply
“with basic instructions.” Specifically, Wright “disregarded two of my commands to” “place his

                                                -4-
hands on the steering” wheel. Brown again indicated that he could not recall whether any
windows were open on the vehicle. He could no longer remember if the radio was on. However,
he did remember that he smelled the odor of burnt marijuana coming from inside the vehicle.

        As noted, the district court suppressed the PBT results following the hearing. The district
court then dismissed the charge against Wright because “without the PBT, the officers lacked
probable cause to arrest Mr. Wright.” The prosecutor again appealed to the circuit court, which
again affirmed. The circuit court agreed that probable cause to arrest was lacking as

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

The circuit court acknowledged the troopers’ testimony “that they detected the smell of
marijuana from the vehicle,” but found that absent a vehicle search that uncovered actual
marijuana, there was no ground for arrest.

                                          II. ANALYSIS

        In the current appeal before this Court, the prosecutor does not challenge the suppression
of the PBT evidence. Rather, this time around, the prosecutor challenges only the dismissal of
the OWI charge against Wright based on the absence of probable cause. “We review a trial
court’s decision on a motion to dismiss charges against a defendant for an abuse of discretion. A
trial court may be said to have abused its discretion only when its decision falls outside the range
of principled outcomes.” People v Nicholson, 297 Mich App 191, 196; 822 NW2d 284 (2012).

        Generally, a warrant to arrest is required, but this requirement may be dispensed with in
the face of probable cause and a warrant exception. People v Wood, 321 Mich App 415, 423;
910 NW2d 364 (2017). In order to arrest a suspect, the “arresting officer must possess
information demonstrating probable cause to believe that an offense has occurred and that the
defendant committed it. 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). “Probable
cause requires only a probability or substantial chance of criminal activity, not an actual showing
of criminal activity.” People v Lyon, 227 Mich App 599, 611; 577 NW2d 124 (1998). “The
existence of probable cause is determined by the totality of the circumstances.” People v
Nguyen, 305 Mich App 740, 752; 854 NW2d 223 (2014). There is a distinction between
probable cause for an arrest and for a bindover:




                                                -5-
       [T]he arrest standard looks only to the probability that the person committed the
       crime as established at the time of the arrest, while the preliminary hearing looks
       both to that probability at the time of the preliminary hearing and to the
       probability that the government will be able to establish guilt at trial. [People v
       Cohen, 294 Mich App 70, 76; 816 NW2d 474 (2011) (alteration in original),
       quoting LaFave & Israel, Criminal Procedure (2d ed, 1992), § 14.3, pp 668-669.]

In considering the lower court’s analysis in this regard, we review for clear error its underlying
findings of fact. People v Bylsma, 493 Mich 17, 26; 825 NW2d 543 (2012).

        As aptly noted by this Court in Wright I, slip op at 6, on the similar issue of the cause
underlying the administration of a PBT, this matter represents “a close case.” The facts before
the troopers before they administered the PBT were that (1) Wright was slow to comply with
Brown’s command to show his hands, (2) Wright had difficulty removing his wallet from his
pocket and extracting his license, (3) the interior of the vehicle smelled like alcohol and burnt
marijuana, (4) Wright was alone inside the vehicle, (5) it was 3:30 a.m., and (6) Wright had
watery, bloodshot eyes. In judging this close case, it also important to note that (1) the officers
did not observe Wright driving erratically, (2) the officers conducted no field sobriety tests, and
(3) the lower courts’ unchallenged rulings eliminated the PBT evidence.

        The Michigan Supreme Court and this Court have repeatedly held that the smell of
alcohol or burnt marijuana provide probable cause to conduct a search. See, e.g., People v
Kazmierczak, 461 Mich 411, 421; 605 NW2d 667 (2000); People v Hilber, 403 Mich 312, 321;
269 NW2d 159 (1978), overruled in part on other grounds by Kazmierczak; People v Anthony,
___ Mich App ___; ___ NW2d ___ (Docket No. 337793, issued January 22, 2019), slip op at 9;
People v Rizzo, 243 Mich 151, 152; 622 NW2d 319 (2000). And this Court has held that “if the
information contained in the affidavit regarding events prior to the entry and arrest is sufficient
to establish probable cause for the search warrant, then it also is sufficient to establish probable
cause for the arrest.” People v Coleman, 100 Mich App 587, 590 n 1; 300 NW2d 329 (1980). In
Hilber, 403 Mich at 421, the Supreme Court noted that “the odor of burnt marijuana may provide
probable cause for an arrest or search. . . . [T]he odor of burned marijuana, in some
circumstances, may provide reason to believe that a particular person smoked it (probable cause
for arrest). . . .”

        Here, the troopers smelled alcohol and burnt marijuana. Wright was alone in the vehicle
and behind the wheel. The odors detected therefore suggested not only that Wright had used two
intoxicating substances, but also that he operated a vehicle after doing so. Added to this initial
assessment, the troopers noted that Wright used slow, fumbling movements to remove his wallet
from his pocket. Despite Brown’s loud commands, Wright was slow to process and place his
hands on the steering wheel. The troopers noted in the post-incident report that Wright’s eyes
were watery and bloodshot, another telltale sign of intoxication.3 Given the early morning hour,


3
   The Oregon Liquor Control Commission has developed a list of “50 signs of visible
intoxication,” which include “[b]loodshot, glassy, or watery eyes,” “[o]dor of alcohol, marijuana
or chemicals,” clumsiness, disorientation, and having “[s]low response to questions or


                                                -6-
Wright’s demeanor, and the odor of intoxicants, an officer using “reasonable caution” could
honestly and reasonably believe that Wright had operated his vehicle while intoxicated. This
Court previously thoroughly reviewed the evidence and concluded that it was sufficient to justify
the administration of a PBT. The information before the troopers was sufficient not only to
conduct such a search, but it also supported placing Wright under arrest. We agree with the
panel in Wright I that ideally field sobriety tests should have been conducted, but also agree that
such hurdles are not mandatory under the OWI statute. The district and circuit courts thereby
abused their discretion in dismissing the OWI charge against Wright.

       We reverse and remand for further proceedings. We do not retain jurisdiction.



                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Brock A. Swartzle




comments.” See Oregon Liquor Control Commission, 50 Signs of Visible Intoxication, available
at <https://www.oregon.gov/olcc/docs/publications/50_signs_visible_intoxication.pdf> (accessed
August 9, 2019).


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