1.         Initial Stop and Seizure of Person under Fourth Amendment

             “A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority,  terminates or restrains his freedom of movement, through means intentionally applied.Brendlin v. California, 551 U.S. 249, 254  (2007)

            To determine whether a person is seized for Fourth Amendment analysis, “[t]he proper inquiry “is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.”  United States v. Drayton, 536 U.S. 194, 202  (2002) (internal citations and quotations omitted)

            “The law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver even though the purpose of the stop is limited and the resulting detention quite brief.” Brendlin, supra, at  255, (internal citations and quotations omitted)  Before the traffic stop can even occur[1], there must be an “articulable and reasonable suspicion that a motorist … is subject to seizure for violation of law … .” Delaware v Prouse, 440 US 648, 663 (1979)

             As a matter of law, a police officer has probable cause to stop a motor vehicle for a violation of the Motor Vehicle Code.  People v. Davis[2], 250 Mich App 357, 363  (2002)

            2.         Order to Exit Vehicle

            Once stopped, it is not per se illegal for a police officer to order the driver to exit the vehicle. Pennsylvania v Mimms, 434 U.S. 106 (1977).  In Mimms, the officer initiated a lawful traffic stop because the defendant had expired license plates. Id. at 107  The police officer had a habit or ordering all drivers from their vehicles for his own personal safety[3]. After exiting, the police officer noticed a bulge in the defendant’s coat, frisked him, and found a gun; the defendant was arrested and charged accordingly.  Id. The Pennsylvania Supreme Court ultimately suppressed the gun as a product of an illegal seizure: the police officer could not articulate an objective fact to justify the further seizure of the defendant by ordering him from the vehicle.  Id. at 108

            The U.S. Supreme Court reversed in an only five page per curiam opinion.  The Court found that ordering a driver from an automobile was not a per se seizure under the Fourth Amendment.  It reasoned that the safety of the officer outweighed the de minimis inconvenience to the personal liberty of the driver[4].  Id. at 110

            The Court’s holding, by its own express words, is very narrow.[5]  Mimms does not allow the police to order a driver from a vehicle except as a matter of safety (or as otherwise allowed under TerryMimms is not carte blanche for the police to order a driver from a vehicle.

            Applying Mimms,  the Michigan Court of Appeals expressly rejected a per se right of the police to order a driver from a vehicle, holding that there must be an allegation in support of officer safety or reasonable suspicion of a crime.

            In People v Rizzo, 243 Mich App 151 (2000), the driver was pulled over for a broken license-plate light. Id. at 152  Solely on the basis of smelling alcohol, the police officer ordered the driver from the vehicle, then to perform field sobriety tests (which she failed), then to take a portable breath test (which she failed) then to take a Breathalyzer test (which she failed), and she was then arrested and charged.

            The defendant/driver moved to suppress all of the alcohol-related evidence arguing that that the police had no lawful basis to order the driver from the car.

            First, the prosecution argued that the police order was lawful because the police had a right under Mimms to simply order the driver from the car with no reason whatsoever.  The Court of Appeals flatly rejected an expansive application of Mimms, to wit:

“Next, the prosecutor argues that police officers have the inherent authority to order a motorist out of a vehicle during routine traffic stops for the officers’ safety, without any reasonable suspicion that the motorist had committed a crime. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); People v. Harmelin, 176 Mich.App. 524, 526, 440 N.W.2d 75 (1989). Because Dillard’s testimony contained no suggestion that he instructed defendant to get out of her vehicle for safety reasons, or that he ever entertained concerns about his own safety, we do not believe that this reasoning supports the police officer’s actions in this case.”

Id. at 160 

            Next, the prosecution argued that the smell of alcohol alone was sufficient reasonable suspicion of a crime to order the driver from the vehicle and continue the investigation; and the court agreed. Id. at 161

            Therefore, under Rizzo, supra, before a police officer can order a driver from a vehicle, the officer must be able to: 1) articulate an actual or habitual need for safety, or 2) reasonable suspicion of a crime to warrant further Terry detention and investigation.

            3.         Once detained, the detention must be reasonable and may be extended if new, unrelated suspicions are aroused.

             In People v Williams, 472 Mich 308, 315-16  (2005), the defendant was driving a vehicle and lawfully stopped by a state trooper for speeding.  Id. at 310  On query by the officer, the driver stated that he was traveling and going to stay at a Holiday Inn hotel in Cheboygan, MI — except that the trooper knew that Cheboygan did not have a Holiday Inn hotel. Id. at 311  Suspicions aroused, the trooper asked the driver to exit the vehicle, where further questioning of the driver and his passengers lead to the driver consent to a search of the vehicle, later withdrawn before the drugs were found by the police, who continued to search without consent and a without a warrant, finally finding drugs and charging the defendant. Id. at 311-312

            The defendant moved to suppress the evidence because he argued that the police unlawfully extended the traffic stop by asking the driver from the vehicle for further questioning about his travels plans. Id. at 312   After finding that the traffic stop was lawful, the court found that the “[t]rooper’s  … questions about defendant’s travel plans, and his limited follow-up, were reasonable and did not exceed the proper scope and duration of the initial traffic stop, and … after questioning, defendant voluntarily consented to the search of the vehicle.”  Id. at 318

A traffic stop is reasonable as long as the driver is detained only for the purpose of allowing an officer to ask reasonable questions concerning the violation of law and its context for a reasonable period.  The determination whether a traffic stop is reasonable must necessarily take into account the evolving circumstances with which the officer is faced. As we observed in People v. Burrell, 417 Mich. 439, 453, 339 N.W.2d 403 (1983), when a traffic stop reveals a new set of circumstances, an officer is justified in extending the detention long enough to resolve the suspicion raised.    People v. Williams, 472 Mich 308, 315-16  (2005) (internal quotations and citations omitted) (emphasis added)

 Similarly, the Sixth Circuit Court of Appeals recently held that questioning “during a traffic stop is not ipso facto unlawful extended detention necessarily contrary to the Fourth Amendment. United States v Everett, 601 F3d 484 (2010)  Instead of adopting a clear rule to govern police conduct, the court instead adopted a police-friendly fuzzy test of a reasonableness, “fact-bound, context-dependent” inquiry in each case. Id. at 493 

            In Everett, the context of the analysis was the behavior of the police during the traffic stop.  The police lawfully pulled over the defendant for speeding. Id. at 486  The defendant admitted that his driver’s license was suspended and the police officer smelled alcohol on the defendant’s breath. Id.   The officer ordered the defendant from the vehicle, where she immediately asked the defendant if he had “anything illegal” on his person or in his vehicle which he denied. Id. at 487  She then asked if she could search him, he consented, and she found marijuana; he was arrested, and then the police officer searched the vehicle and found a gun (which he possessed illegal as a convicted felon), open alcohol, and digital scales which were positive for crack cocaine. Id. at 487

            The defendant moved to suppress the evidence seized at the traffic stop because “in the absence of independent reasonable suspicion, [the police officer’s] questions on matters unrelated to the traffic stop rendered the stop unreasonable under the Fourth Amendment and that the shotgun was therefore ‘fruit of the poisonous tree.'” Id.

            The Sixth Circuit Court of Appeals first rejected a bright line rule barring police questioning during the traffic stop unrelated to the traffic stop stating: “the overwhelming weight of authority militates against a bright-line ‘no prolongation’ rule.” Id. at 491

            “Of course, this raises a second important question: if some prolongation is permissible … [then] how much is too much?” Id. at 493 (emphasis in original)    The inquiry then will be an examination of the officer’s “diligence” in confirming or dispelling any suspicions and the actual subject matter of those suspicions, to wit:

In other words, the overarching consideration is the officer’s diligence—i.e., his “persevering” or “devoted … application to accomplish [the] undertaking” of ascertaining whether the suspected traffic violation occurred, and, if necessary, issuing a ticket. … The question of the officer’s diligence, as with so much else in the Fourth Amendment context, is “determine[d] … under the totality of the circumstances….” United States v. Fountain, 2 F.3d 656, 665 (6th Cir.1993), overruled in part on other grounds by Gen. Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).

          4.         Once the traffic stop is over, Terry reapplies

            However, once the traffic stop is completed, and if there were no suspicions raised during the stop as a result of the police questioning, the traffic stop is over and the Fourth Amendment is reapplied immediately to further police conduct.

“Once the purpose of the initial traffic stop is completed, an officer cannot  further detain the vehicle or its occupants unless something happened during the stop to cause the officer to have a ‘reasonable and articulable suspicion that criminal activity [is] afoot.’ ” Davis, 430 F.3d at 353; see United States v. Smith, 601 F.3d 530, 542 (6th Cir.2010); Torres–Ramos, 536 F.3d at 550. If an individual is held after the purpose of a traffic stop has been completed, the principles in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) apply. Everett, 601 F.3d at 488 (citing Hill, 195 F.3d at 264). A Terry stop “permits a police officer to briefly detain a person or property for investigative purposes if the officer has reasonable suspicion, supported by articulable facts, that criminal activity has occurred or is about to occur.” Davis, 430 F.3d at 354 (citing Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 543–44 (6th Cir.2002)).

            United States v. Goss, 852 F Supp 2d 871, 880-81 (WD Mich 2012) (emphasis in   original)

 For example, U.S. v Townsend, 305 F3d 537, 539 (6th Circ. 2002), the police lawfully pulled over a vehicle for speeding.  The police (and prosecution) then relied upon a litany of “observations” to justify continued detention of the defendants beyond the initial traffic stop, to include:

            1.         the defendant was “unusually cooperative,”

            2.         the defendant confessed to a higher speed than clocked on radar,

            3.         dubious travel plans,

            4.         traveling a known drug route,

            5.         presence of three cellular telephones and a Bible — common currency for drug dealers,            

            6.         feeling “rolls of money” on the frisking of the defendant,

            7.         the defendant had a previous criminal history;

            8.         “the defendants appeared nervous, repeatedly looking back at the patrol car, while the officers were processing paperwork for the citation”

            9.         the amount and type of garbage in the vehicle was consistent with a drug courier;

            10.       the driver of the vehicle was not the registered owner of the vehicle, consistent with a drug courier.

                         Id. at 542-545

On these observations, the police summoned a police canine unit, which alerted to the trunk; the police searched the trunk and found ten, counterfeit, one-hundred dollar bills, and the defendant was accordingly charged. Id. at 540

            The defendant moved to suppress the evidence because the police had no basis to extend the detention beyond the original infraction, and the resulting search and seizure was contrary to the Fourth Amendment. Id. at 541

            Both the federal district court and the Sixth Circuit Court of Appeals agreed and the indictment was dismissed.  The court noted:

“Although the government has pointed to several factors, present in this case, which we have recognized as valid considerations in forming reasonable suspicion, they are all relatively minor and, in many cases, are subject to significant qualification. The fact of the matter is that this case lacks any of the stronger indicators of criminal conduct that have accompanied these minor factors in other cases. We hold that the officers lacked reasonable suspicion to detain the defendants until the canine unit arrived.”          Townsend, supra, at 545

             The Sixth Circuit Court of Appeals has repeatedly outlined the analysis to be employed under Terry v Ohio, 392 US 1 (1968).  It is a two-part analysis:

“We first ask whether there was a proper basis for the stop, which is judged by examining whether the law enforcement officials were aware of specific and articulable facts which gave rise to reasonable suspicion. In answering this question, we examine the totality of the circumstances to determine the reasonableness of the investigatory stop.

 Next, if we conclude that the basis for the Terry stop was proper, then we must determine “whether the degree of intrusion … was reasonably related in scope to the situation at hand, which is judged by examining the reasonableness of the officials’ conduct given their suspicions and the surrounding circumstances.” As part of the second prong, we must “ascertain whether the detention is reasonable, that is, (1) was it sufficiently limited in time, and (2) were the investigative means used the least intrusive means reasonably available.””

            United States v. Davis, 430 F3d 345, 354-55 (6th Cir, 2005)

            5.         Suppression of Illegal Obtained Evidence

            Once the defendant has alleged an illegal search or seizure, it is the prosecution’s burden to establish the legality of the police action. People v. White, 392 Mich. 404 (1974), cert den 420 U.S. 912 (1975).

            The exclusionary rule bars introduction of all evidence and testimony derived from a Fourth Amendment violation. Murray v United States, 487 US 533, 537  (1988)

            The exclusionary rule was developed through case law ?to deter future unlawful police conduct.” United States v. Janis, 428 U.S. 433, 446  (1976)). There is a significant additional purpose of the rule, however: to prevent the courts from being a “party to lawless invasions of constitutional rights.” United States v. Leon, 468 U.S. 897, 916 (1984)

            6.         Continued Investigation and Detention: Field Sobriety Tests and PBT

            The mere smell of alcohol, albeit, “strong” smell, is a sufficient factual basis for a police officer to continue to detain a citizen and investigate a suspicion of driving under the influence of alcohol by performing field sobriety tests:

” … [We] nevertheless hold that such an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist’s ability to operate a motor vehicle. A police officer need not suspect that a motorist’s blood alcohol content is above or below a certain numerical limit before conducting roadside sobriety tests. Rather, he merely must have a reasonable suspicion that the motorist has consumed intoxicating liquor, which may have affected the motorist’s ability to operate a motor vehicle. In order to confirm or dispel such reasonable suspicions, we hold that a police officer may instruct a motorist to perform roadside sobriety tests.”    Rizzo, supra at  161

 Standardized field sobriety tests (“SFST”) must be performed by a police officer correctly. “… [In]correct administration … le[ads] to inaccurate interpretation of the results … ” and use of an inaccurately administered test in an affidavit for a search warrant for a blood sample is “at least reckless disregard for the truth” and is a basis to suppress any resulting evidence. People v Mullen, 282 Mich App 14, 24  (2008)  In fact, any false statements of fact by the police officer in the affidavit as to the officers’ instructions on the SFSTs, the accused responses, failure to distinguish standardized factors, or other misrepresentations, are a basis to suppress evidence arising from a warrant based on such an affidavit. Id.

            In Mullen, the Michigan Court of Appeals affirmed the trial court’s striking of all of a police officer’s SFSTs for a search warrant affidavit, to include his administration of a horizontal nystagmus test, for failure to follow the National Highway Transportation Safety Administration (“NHTSA”) Standardized Field Sobriety Testing manual. Id. at 25   

            In Michigan, police officers obtain certification from the Michigan Commission on Law  Enforcement Standards (“MCOLES”). MCL 28.609a   The commission promulgates administrative rules and administers the education, training, and protocols for Michigan police officers.  MCL 28.609    MCOLES adopted the NHSTA SFST standardized test battery for field sobriety testing and police officers are required to be trained in proper administration of the SFSTs.[6]

            SFSTs are composed of only three tests:

            1.         horizontal gaze nystagmus (HGN)

            2.         walk-and-turn (WAT)

            3.         one-leg stand (OLS).

SFSTs do not include other commonly seen “tests” for sobriety such as counting backwards, saying the “ABCs” without singing, or touching the end of one’s nose.  Hence, the validity and underlying methodology on non-NHSTA SFSTs is not generally accepted within the scientific community, and frankly, amounts to police “Voodoo” and cannot be admitted under MRE 702.  See e.g., Craig ex rel. Craig. v Oakwood Hosp., 471 Mich 67, 80 (2004)[7]

            Additionally, the NHTSA SFST training manual[8] expressly provides that the tests are only “valid” when “administered in the prescribed standardized manner.”   Further, it provides that “if any one of the standardized field sobriety test elements is changed, the validity is compromised.” Id.


[1] See also: “As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”  Whren v. United States, 517 U.S. 806, 810  (1996)

[2] ” … dangling ornament from the rearview mirror [and] at least one air freshener … defendant may have been in violation of M.C.L. § 257.709(1)(c), and … [b]ecause Officer Hopkins had probable cause to believe defendant was in violation of three traffic laws, the stop was permissible. … ” People v. Davis, 250 Mich App 357, 363 (2002)

[3] ” Placing the question in this narrowed frame, we look first to that side of the balance which bears the officer’s interest in taking the action that he did. The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior. It was apparently his practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation.  Id. at 109-110

 [4] “We think it too plain for argument that the State’s proffered justification-the safety of the officer-is both legitimate and weighty.” Id. at 110

 [5] ” … we need presently deal only with the narrow question of whether the order to get out of the car, issued after the driver was lawfully detained, was reasonable and thus permissible under the Fourth Amendment. … Placing the question in this narrowed frame, … .” Id. at 109 Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S. Ct. 330, 332, 54 L. Ed. 2d 331 (1977)

 [6] MCOLES Basic Training Curriculum and Training Objections, pgs. 437-438k (2010)

[7] “Thus, in determining whether the proposed expert opinion was grounded in a “recognized” field of scientific, technical, or other specialized knowledge as was required by MRE 702, a trial court was obligated to ensure that the expert opinion was based on accurate and generally accepted methodologies. The proponent of expert testimony bears the burden of proving general acceptance under this standard.” Craig ex rel. Craig v. Oakwood Hosp., 471 Mich. 67, 80  (2004)

 [8] NHTSA DWI Detection and Standardized Field Sobriety Testing Student Manual, VIII-19 (“NHSTA DWI manual” or “Manual“)

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