Michigan Court of Appeals Develops Probable Cause, Stop-and-Frisk Doctrines

On June 24th, 2014, the Michigan Court of Appeals further developed the doctrines of probable cause and stop-and-frisk in a criminal case involving a confidential informant and a traffic stop in Troy, Michigan that yielded guns and drugs.

In People v Nguyen, Docket No. 312319, the Michigan Court of Appeals addressed an appeal in a criminal case where the legal issues centered around whether the police had probable cause to search defendant and whether any potential probable cause dissipated after an initial, unsuccessful stop-and-frisk.

The Court first recited the facts of the case.

This appeal arises from a traffic stop of defendant’s vehicle on September 7, 2010, in the city of Troy. The record establishes that a confidential informant (CI), who was working with Immigration Custom Enforcement (ICE), had agreed to purchase a large quantity of cocaine from defendant in the city of Troy. With prior knowledge of the CI’s agreement, the Troy police stopped defendant’s vehicle, asked defendant to exit the vehicle, and thereafter performed a pat- down search for weapons and a consensual vehicle search. Officer Neil Piltz searched the driver’s compartment, underneath the seat, the top of the seats, and behind the driver’s seat. Officer Piltz then talked to defendant while another officer conducted a canine search. No drugs were located in the vehicle during this initial search. 

Throughout his conversation with Officer Piltz, defendant had his hands in his pants pockets. Officer Piltz testified at the preliminary examination that when defendant removed his hands from his pockets, he noticed a bulge in defendant’s right pants pocket —bigger than a golf ball—where it had been smooth during the initial pat-down. Officer Piltz felt the bulge and asked defendant what it was while he began to check inside defendant’s pocket. Defendant then put his hands together in front of his body and told the officer that he should arrest him. Officer Piltz asked defendant why, to which defendant responded, [']for what you’re going to find in my pocket.['] Officer Piltz pulled out a felt bag and before he could look inside, defendant stated that it was cocaine. Officer Piltz then arrested defendant. 

Approximately 20 minutes lapsed from the time defendant was pulled over to the time Officer Piltz found the cocaine and arrested defendant. Later and contemporaneous with his arrest, defendant waived his Miranda rights and admitted to the operation of an illegal marijuana grow operation in his home and the possession of firearms and other illicit controlled substances. The Troy police relied on defendant’s statements and the cocaine found at the time of the arrest to obtain a search warrant for his home. When the search warrant was executed at defendant’s home, various illegal drugs, firearms, and other contraband were recovered . . . .

The Court's analysis of the probable cause and stop-and-frisk issues followed.

On appeal, defendant contends that the circuit court erred by ruling that probable cause to arrest him existed at the time of the search, and even if probable cause did exist, it dissipated after the unsuccessful pat-down and vehicle search. Further, defendant contends that because he was not arrested before the search and the police only arrested him after unlawfully recovering cocaine from his person, the search does not fall within the search incident to arrest exception. We disagree . . .

Our Supreme Court, in People v Levine, 461 Mich 172, 183; 600 NW2d 622 (1999), recognized that Michigan case law is consistent with federal precedent regarding the existence of probable cause on the basis of informant tips. The existence of probable cause is determined by the totality of the circumstances. Id. at 184, citing Illinois v Gates, 462 US 213, 230-231; 103 S Ct 2317; 76 L Ed 2d 527 (1983). In making a warrantless arrest, an officer [']may rely upon information received through an informant, rather than upon his direct observations, so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge.['] Gates, 462 US at 242, quoting Jones v United States, 362 US 257, 269; 80 S Ct 725; 4 L Ed 2d 697 (1960), overruled on other grounds United States v Salvucci, 448 US 83; 100 S Ct 2547; 65 L Ed 2d 619 (1980); see also Levine, 461 Mich at 182 (recognizing that an officer making an arrest without a warrant may rely on a tip, rather than direct observations, as long as the tip is reasonably corroborated by other matters within the officer’s knowledge). An informant’s [']veracity,['] [']reliability,['] and [']basis of knowledge['] are all highly relevant in determining the value of his report, and they can be used to determine whether probable cause exists. Levine, 461 Mich at 180, citing Gates, 462 US at 230. 

In the instant case, the testimony at the preliminary examination showed that the CI was credible and reliable. The CI had provided narcotics trafficking information and arranged controlled substances transactions in the past, resulting in seven arrests and five convictions. Accordingly, the information the CI provided about the arrangement to purchase cocaine from defendant was highly relevant to establishing probable cause that defendant possessed a large quantity of cocaine. Levine, 461 Mich at 180, citing Gates, 462 US at 230. Furthermore, not only was the information provided by the CI credible and reliable in the past, the information the CI provided about defendant was also reasonably corroborated by the observations of defendant made by both the ICE agents and the Troy police officers. As defendant allegedly reported to the CI by phone that he was going to retrieve the cocaine after work and deliver it to the CI in Troy, the surveillance team observed defendant drive from work, stop in a high intensity drug trafficking neighborhood, and then drive toward the specific location defendant and the CI agreed to meet. In addition, the CI reported that defendant had confirmed possession of the cocaine before he began driving toward Troy. Given that the ICE agents and the Troy police officers reasonably corroborated the information provided by the CI, the police properly relied upon this information in making a warrantless arrest. Gates, 462 US at 242; see also Levine, 461 Mich at 182. 

Based on the testimony provided by the ICE agents and the Troy police officers, probable cause to arrest defendant existed at the time defendant’s vehicle was initially stopped by Officer Piltz. The collective information known by the ICE agents and the Troy police officers prior to defendant’s arrest justified the belief by a fair-minded person of average intelligence that defendant had possession of a substantial amount of cocaine. At the time of defendant’s arrest, the ICE agents and Troy police were aware that defendant and the CI had engaged in communications and negotiations culminating in the CI’s agreement to purchase a large quantity of cocaine from defendant at a specific location in Troy. The ICE agents corroborated that defendant would leave his place of business and obtain the cocaine when they observed defendant leave his work and go to a high drug trafficking area in southwest Detroit. The ICE agents further corroborated that defendant was going to drive to Troy to sell the cocaine he had obtained, when defendant communicated with the CI that he had the cocaine in his possession, and they observed defendant driving toward Troy. This information was relayed to the Troy police who had a photograph of defendant, a description of his vehicle and license plate number, and the direction in which defendant would be heading. The Troy police observed the vehicle that matched the description and license plate number heading in the direction indicated by the ICE agent. Furthermore, when Officer Piltz activated his emergency lights to initiate the traffic stop, defendant failed to follow the officer’s instructions to pull off on to the next side road. Instead, he continued traveling for another 500 feet and Officer Piltz observed defendant moving around in the vehicle as though he was attempting to move or hide something. Because we recognize the collective knowledge approach allowing numerous law enforcement agents to possess different information that, in its totality, constitutes probable cause, the information possessed collectively by the ICE agents and the Troy police officers was sufficient for a fair- minded person of average intelligence to believe that defendant had committed or was committing a crime. Dixon, 392 Mich at 696-698; Mackey, 121 Mich App at 753-754; Perkins, 994 F2d 1184. Therefore, the police had probable cause to lawfully arrest defendant

Alternatively, defendant contends that, even if probable cause existed, it dissipated after the police performed a pat-down search for weapons and found no cocaine after searching his vehicle. Again, the district court’s ruling that probable cause dissipated and the circuit court’s holding that it did not are subject to de novo review. Williams, 472 Mich at 313. The district court relied upon our Supreme Court’s decision in People v Russo, 439 Mich 584; 487 NW2d 698 (1992). In Russo, the Court held: 

[']Once established, probable cause to arrest, which is concerned with historical facts, is likely to continue indefinitely, absent the discovery of contrary facts. By contrast, it cannot be assumed that evidence of a crime will remain indefinitely in a given place. Thus, [']staleness['] is not a separate doctrine in probable cause to search analysis. It is merely an aspect of the Fourth Amendment inquiry. [Id. at 605.][']

Although the district court viewed the failure to find the cocaine during the initial pat-down for weapons and vehicle search as facts supporting the dissipation of probable cause, the circuit court held that these facts demonstrated it was more probable that the cocaine was on defendant’s person. The evidence supports the circuit court’s conclusion that probable cause did not dissipate. The ICE agents and police received information that defendant possessed a substantial amount of cocaine from a reliable and credible informant. Defendant failed to stop his vehicle as ordered by Officer Piltz, and while he continued to drive, defendant made evasive movements indicating he was moving or hiding something. The fact that cocaine was not found either during the pat-down search, which was geared toward searching for weapons, or the search of defendant’s vehicle, did not lead to the dissipation of probable cause. Rather, given the credible and corroborated information from the CI that defendant possessed cocaine, that cocaine was not recovered during the pat-down search for weapons or the search of the vehicle, and that defendant may have disregarded the order to stop his vehicle to take time to hide the cocaine in his pocket, the circuit court did not err in finding that probable cause for the arrest continued to exist during the second search of defendant. 

Having found the arrest to be lawful, we hold that the search incident to that arrest, which revealed the cocaine in defendant’s pocket, was also lawful. Generally, a search conducted without a warrant is unreasonable unless it was conducted pursuant to an established exception to the warrant requirement. Beuschlein, 245 Mich App at 749. A search incident to arrest is an exception to the warrant requirement, and may occur whenever there is probable cause to arrest. People v LaBelle, 478 Mich 891; 732 NW2d 114 (2007). There are two historical rationales for the “search incident to arrest” exception: ['](1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial.['] Knowles v Iowa, 525 US 113, 116; 119 S Ct 484; 142 L Ed 2d 492 (1998). 

Defendant contends that this was not a proper search incident to arrest because it occurred prior to the arrest. A search incident to arrest may still be valid if the arrest has not been made at the time the search is conducted, LaBelle, 478 Mich at 891, and follows [']quickly on the heels['] of the search, Rawlings v Kentucky, 448 US 98, 111; 100 S Ct 2556; 65 L Ed 2d 633 (1980). The search may occur immediately before the arrest, at the place of arrest, or at the place of detention, and may occur before the defendant is advised of his right to post bail. Champion, 452 Mich at 115-116; People v Crawford, 202 Mich App 537, 538-539; 509 NW2d 519 (1993). In the instant case, after defendant was pulled over, Officer Piltz performed a pat- down search for weapons and defendant consented to a vehicle search. After the police searched the vehicle, they searched defendant’s person again and found cocaine in his pocket. Because a search incident to an arrest may occur whenever there is probable cause to arrest, even if the arrest has not been made at the time the search is conducted, the police were not required to arrest defendant prior to conducting the search incident to arrest. LaBelle, 478 Mich at 891. Given that the police had probable cause to arrest defendant, the fact that defendant was searched immediately prior to his arrest does not make the search incident to arrest invalid. Additionally, because probable cause existed to arrest defendant, the need to preserve evidence for later use at trial still exists even though the search was conducted prior to the arrest. 

Defendant further asserts that no arrest was going to occur until after the police searched him the second time, and as a result, the search incident to arrest principles do not apply. In support of this argument, defendant asserts that the district court made factual findings that the officers did not believe they had probable cause to arrest defendant at the time of the search. At the May 10, 2011 hearing, before the district court reopened proofs for evidence from the ICE agents, the district court stated, [']It seemed quite obvious to me from the tape that both officers believed that they had come up empty and that there was nothing to arrest the defendant for until he sees the bulge, goes in and takes it.['] Regardless of the subjective beliefs of the police at the traffic stop, our Supreme Court has instructed that the probable cause inquiry is [']objective.['] People v Cipriano, 431 Mich 315, 342; 429 NW2d 781 (1988). The Court held: 

[']An arresting officer’s subjective characterization of the circumstances surrounding an arrest does not determine its legality. Rather, probable cause to justify an arrest has always been examined under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved. [Id.][']

Because the surrounding facts and circumstances were sufficient to warrant a prudent individual to believe that defendant committed an offense, the district court’s conclusion about the subjective belief of the police with regard to whether probable cause existed is not outcome-determinative here. 

Defendant also contends that the stop was an investigatory stop, and the initial pat-down was a justified Terry pat-down; however, after the officers conducted a consensual search of his vehicle, the second pat-down was no longer justified under Terry, thus making it an illegal search. Despite defendant’s contention, this case does not rest upon [']reasonable suspicion,['] as is the case in Terry v Ohio, 392 US 1, 26-27; 88 S Ct 1868; 20 L Ed 2d 889 (1968) (holding that when the officer has reasonable suspicion that the individual stopped for questioning is armed and thus poses a danger to the officer, the officer may perform a limited pat-down search for weapon). While it is true that a police officer may perform a limited pat-down search for weapons if the officer has reasonable suspicion that the individual is armed, the police, in the present case, had probable cause to arrest defendant when they initiated the stop. Id. at 27. A Terry frisk must be justified by reasonable suspicion, while a search incident to arrest needs no justification, so long as the underlying arrest is supported by probable cause. People v Eaton, 241 Mich App 459, 463; 617 NW2d 363 (2000), citing United States v Robinson, 414 US 218, 235; 94 S Ct 467; 38 L Ed 2d 427 (1973). Because the police had probable cause to arrest defendant, the police did not need any additional justification to conduct the search incident to the arrest. The intervening pat-down search for weapons and consensual search of the vehicle did not negate the facts that probable cause existed at the time of the initial stop and the police could have arrested defendant at any point.

For the foregoing reasons, we conclude that the circuit court did not err by reversing the district court’s suppression of the cocaine. The police had probable cause to arrest defendant and the search incident to the lawful arrest was valid.

Affirmed.