                           STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 8, 2019
               Plaintiff-Appellee,

v                                                                    No. 338762
                                                                     Isabella Circuit Court
MARC VALENTINO BARRERA,                                              LC No. 2016-002389-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and JANSEN and GADOLA, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of possession with intent to deliver
less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), second or subsequent offense, MCL
333.7413(2), and one count of possession with intent to deliver marijuana, MCL
333.7401(2)(d)(iii), second or subsequent offense, MCL 333.7413(2). The trial court sentenced
defendant to serve 57 months to 40 years’ imprisonment for possession with intent to deliver less
than 50 grams of cocaine conviction, and four to eight years’ imprisonment for possession with
intent to deliver marijuana conviction. We reverse and vacate defendant’s convictions and
sentences.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        On November 21, 2016, at approximately 1:00 a.m., Sergeant Cary Murch was on patrol
near the residence of 1409 Granger Street. Police were familiar with this particular residence as
a “known drug house,” and police had responded to many complaints and disturbances over the
years with various tenants. About a week prior, in fact, Murch had gone to this house in
response to an altercation and, while there, discovered a person with outstanding warrants and a
“terrible drug problem.” On the night in question, Murch saw that there was a car parked in the
driveway of this house. He ran the license plate and found that the car’s owner had no driver’s
license. Murch parked a couple of blocks away and waited to see if the car would leave. When
the car did, he pursued it and subsequently pulled the car over for speeding. Another officer, Jeff
Thompson, arrived at the scene about 10 minutes later.

       The car had four occupants: Juaquin Garcia, the driver; Edison Pelcher, the front seat
passenger; Morgan Guerrero, a backseat passenger; and defendant, also a backseat passenger.
This particular car was known to police because police had pulled it over on multiple prior

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occasions. On at least two such occasions, police found drugs in the car. Moreover, on these
two occasions, Pelcher had been a passenger in the car. Additionally, Thompson had previously
pulled over this car in the same neighborhood. After the traffic stop had ended, he learned that a
passenger in the car had been an absconding parolee.

        Defendant refused to identify himself to Thompson or Murch, and no one else seemed to
know his last name; everyone knew him only as “Marc.” Additionally, Guerrero lied about her
name and, when her correct name was put into the police database, it was found that she had
three outstanding warrants for her arrest. Furthermore, Garcia, the driver, had no license. Both
Garcia and Guerrero were arrested. Murch grew concerned that defendant could be the owner of
the car and, if so, was committing a crime by allowing someone without a license to operate his
vehicle.

       Suspicious that criminal activity was afoot, Thompson asked defendant to leave the car
and executed a patdown of defendant. Thompson felt a bulge in defendant’s pocket and, upon
removing it, found 11 plastic sandwich baggies and more than $1,000 in cash. When asked
where this money had come from, defendant stated that it was “per cap from the Tribe,” leading
Thompson and Murch to believe that defendant could be a tribal member. However, Tribal
Officer Dave Feger arrived sometime later and did not recognize defendant as a tribal member.

        Thompson and Murch decided to take defendant to the jail for fingerprinting and
identification. They did not formally arrest defendant. Upon arrival, a jail corrections officer
patted defendant down. During this patdown, Thompson noticed a name tattooed on defendant’s
arm, which turned out to be defendant’s own name. When entered into the database, it was
discovered that defendant was a parole absconder and had a warrant for his arrest. Police
formally arrested defendant, strip searched him, and found a bag of marijuana and cocaine
located in between defendant’s legs. The drugs were packaged in small, individual baggies.

        Prior to trial, defendant sought to suppress the evidence of the drugs discovered during
the strip search as a violation of his Fourth Amendment rights. The trial court disagreed and
denied his motion to suppress.

                                         II. ANALYSIS

       Defendant presents two issues for appeal. First, defendant argues that the trial court erred
by denying his motion to suppress. Second, defendant contends that the trial court erred by
admitting drug profile testimony by officers Thompson and Murch, or, in the alternative,
defendant maintains that his counsel was ineffective for failing to object to such testimony.
Because we find defendant is entitled to the relief sought on his Fourth Amendment claims, we
need not address the second issue raised by defendant on appeal.

                                 A. STANDARD OF REVIEW

        This Court reviews constitutional questions de novo. People v Sadows, 283 Mich App
65, 67; 768 NW2d 93 (2009). Additionally, this Court reviews a trial court’s decision regarding
a motion to suppress de novo. People v Williams, 240 Mich App 316, 319; 614 NW2d 647


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(2000). However, this Court reviews a trial court’s factual findings regarding a motion to
suppress for clear error. People v Williams, 240 Mich App 316, 319; 614 NW2d 647 (2000).

                                        B. DISCUSSION

       We conclude that the trial court erred by denying defendant’s motion to suppress.
Although we acknowledge that the sequence of events leading up to defendant’s arrest are
concerning, our conclusion ultimately rests on the basis that Thompson did not have the required
probable cause to detain defendant and transport him to jail to be fingerprinted.

                    1. NO PROBABLE CAUSE TO ARREST DEFENDANT

        The Fourth Amendment and Michigan Constitution protect against unreasonable searches
and seizures. US Const, Am IV; Const 1963, art 1, § 11; People v Earl, 297 Mich App 104, 107;
822 NW2d 271 (2012), aff’d on other grounds 495 Mich 33 (2014). If police exert physical
force, however slight, then an arrest has occurred. California v Hodari D., 499 US 621, 625-
626; 111 S Ct 1547; 113 L Ed 2d 690 (1991). Furthermore, “transportation to and investigative
detention at [a] station house without probable cause or judicial authorization together violate the
Fourth Amendment.” Hayes v Florida, 470 US 811, 815; 105 S Ct 1643; 84 L Ed 2d 705
(1985). “[I]n the absence of probable cause or a warrant[,] investigative detentions at the police
station for fingerprinting purposes [can]not be squared with the Fourth Amendment.” Id.
Reasonable suspicion on its own is generally insufficient. See id.

       And our view continues to be that the line is crossed when the police, without
       probable cause or a warrant, forcibly remove a person from his home or other
       place in which he is entitled to be and transport him to the police station, where he
       is detained, although briefly, for investigative purposes. We adhere to the view
       that such seizures, at least where not under judicial supervision, are sufficiently
       like arrests to invoke the traditional rule that arrests may constitutionally be made
       only on probable cause. [Id. at 816.]

Probable cause to arrest exists when the circumstances “at the moment of arrest would justify a
fair-minded person of average intelligence in believing that the suspected person had committed
a felony.” People v Nguyen, 305 Mich App 740, 751-752; 854 NW2d 223 (2014) (quotation
marks and citation omitted). “Probable cause requires only a probability or substantial chance of
criminal activity, not an actual showing of criminal activity,” and circumstantial evidence can be
sufficient to show probable cause. Id. at 752 (quotation marks and citation omitted).

         Based on the totality of the circumstances before him at the time, Thompson conducted a
patdown of defendant. During that patdown, Thompson came upon “a bulge” in defendant’s
pocket. Presumably operating under the assumption that he could legally remove the bulge from
defendant’s pocket, Thompson did so, and seized empty plastic sandwich baggies and $1,000.
Even if we were to conclude that Thompson’s seizure of the baggies and cash was legal, we
cannot conclude that Thompson had probable cause to further detain defendant and transport him
to jail for fingerprinting.



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        By transporting defendant from the traffic stop to the jail, Thompson arrested defendant.
See Hayes, 470 US at 816. As noted, the facts did not support a finding of probable cause to
arrest. It was undisputed that no drugs or drug paraphernalia were found on defendant’s person
or in the vehicle. The only items located on defendant’s person were the plastic baggies and the
cash. Neither of these items was contraband or directly incriminating. Furthermore, none of the
vehicle occupants’ criminal activities implicated defendant. Finally, the fact that defendant may
have lied or misrepresented that he was a tribal member did not directly speak to whether he may
have been engaged in illegal activity.

         Taken together, the circumstances surrounding defendant’s arrest did not give rise to
probable cause. Although Thompson and Murch were undoubtedly suspicious of the large
number of baggies, the cash, the lies told, and other criminal activities, such suspicions would
not “justify a fair-minded person of average intelligence in believing that the suspected person
[i.e., defendant] had committed a felony.” Nguyen, 305 Mich at 751-752.

              2. EXCLUSIONARY RULE: FRUIT OF THE POISONOUS TREE

       The fruit of the poisonous tree doctrine is a subset of the exclusionary rule. See People v
Stevens, 460 Mich 626, 633-634; 597 NW2d 53 (1999). Under this doctrine, “evidence of
materials and testimony that are the products or indirect results of an illegal search” are
inadmissible. Id. at 634. Because the cocaine and marijuana were discovered in defendant’s
possession only as a result of the unlawful arrest, this evidence should have been suppressed.

        The prosecution contends that the inevitable discovery rule applies. We disagree. “The
inevitable discovery doctrine . . . permits the admission of evidence obtained in violation of the
Fourth Amendment if it can be shown by a preponderance of the evidence that the items found
would have ultimately been obtained in a constitutionally accepted manner.” People v Hyde, 285
Mich App 428, 439-440; 775 NW2d 833 (2009). In this case, there was no probable cause to
arrest defendant. The discovery of the drugs came about only because of the illegal detention of
defendant.

        The prosecution additionally argues that defendant’s status as a parolee supports an
argument for inevitable discovery. The prosecution maintains that if Thompson and Murch had
known defendant was a parolee, they would have been able to search him because of the
diminished expectation of privacy for parolees. The prosecution cites Mich Admin Code, R
791.7735, which permits a warrantless search of a parolee pursuant to MCL 791.239. It is true
that parolees can possess a diminished expectation of privacy and less protection under the
Fourth Amendment. See Samson v California, 547 US 843, 847; 126 S Ct 2193; 165 L Ed 2d
250 (2006). However, although the Michigan administrative regulation cited by the prosecution,
Rule 791.7735, lists parole officers and peace officers as being able to arrest and detain paroled
prisoners without a warrant, they can do so only when there are “reasonable grounds to believe
that the prisoner has violated parole or a warrant has been issued for his or her return under
section 38.” MCL 791.239 (emphasis added).

       In this case, Thompson and Murch were not parole agents; nor were they accompanied by
a parole agent. Therefore, Rule 791.7735 is arguably inapplicable. Furthermore, they did not
know that defendant was a parolee and had warrants for his arrest until after the defendant was

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transported to jail. Therefore, they could not have had reasonable grounds to believe that
defendant had violated parole or had a warrant for his return. MCL 791.239 is, therefore, also
inapplicable.

                                     III. CONCLUSION

       Because there was no probable cause to arrest defendant, the marijuana and cocaine
discovered in defendant’s possession should have been excluded from evidence as “fruit of the
poisonous tree,” and defendant’s motion to suppress granted. Without this evidence, there was
no basis for the drug charges.

       We reverse and vacate defendant’s convictions and sentences.


                                                         /s/ Kathleen Jansen
                                                         /s/ Michael F. Gadola




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