11.6Exceptions to the Warrant Requirement

Warrantless searches are permitted under specific circumstances.

A.Exigent Circumstances: Emergency Aid, Community Caretaking , and Hot Pursuit Exceptions     

The exigent circumstances exception is a recognized exception to the Fourth Amendment warrant requirement. People v Cartwright, 454 Mich 550, 558-559 (1997). “Exigent circumstances exist when an emergency leaves law enforcement with insufficient time to obtain a warrant.” People v Hammerlund, 504 Mich 442, 460 (2019). The warrantless entry of a dwelling may be justified by “hot pursuit of a fleeing felon, to prevent the imminent destruction of evidence, to preclude a suspect’s escape, and where there is a risk of danger to police or others inside or outside a dwelling.” Cartwright, 454 Mich 558. Additionally, a police officer or firefighter may enter a dwelling without a warrant where it is reasonable to believe that a person inside the dwelling is in need of immediate medical assistance. People v Slaughter, 489 Mich 302, 316-317 (2011); People v Davis, 442 Mich 1, 14 (1993); City of Troy v Ohlinger, 438 Mich 477, 483-484 (1991); People v Hill, 299 Mich App 402, 404-410 (2013).

A police officer’s conduct before the exigency must be reasonable to justify a warrantless search under exigent circumstances. Kentucky v King, 563 US 452, 462 (2011). In King, 563 US at 455-456, police officers pursued a suspect into an apartment building and, fearing the destruction of evidence because of sudden movement inside, eventually entered into one of two apartments where they thought the suspect was hiding. Inside, the officers found drugs and drug paraphernalia, but not the suspect, who was in the other apartment. Id. at 456-457. The United States Supreme Court concluded:

“[T]he exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable[.] . . . Where . . . the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent destruction of the evidence is reasonable and thus allowed.” King, 563 US at 462.

The King Court rejected other requirements used by some courts when examining whether exigent circumstances existed at the time of the search. King, 563 US at 463-469. Courts need not evaluate (1) an officer’s motive; (2) whether it was reasonably foreseeable that the officer’s tactics would create the exigent circumstances; (3) the officer’s failure to seek a warrant after establishing sufficient probable cause to search the premises; (4) whether the course of an officer’s investigation was contrary to standard or good law enforcement practices or policies; or (5) whether officers engaged in conduct that would cause a reasonable person to believe that entry was imminent and inevitable. Id.

Pursuant to the exigent circumstances exception, a police officer “may enter a dwelling without a warrant if the officer possesses probable cause to believe that a crime was recently committed on the premises, and probable cause to believe that the premises contain evidence or perpetrators    of the suspected crime.” In re Forfeiture of $176,598, 443 Mich 261, 271 (1993). “The police must further establish the existence of an actual emergency[—the exigent circumstances—]on the basis of specific and objective facts indicating that immediate action is necessary to (1) prevent the imminent destruction of evidence, (2) protect the police officers or others, or (3) prevent the escape of a suspect.” Id.

The presence of men’s shoes on the floor near the bathroom “provided probable cause to believe that there was a male occupying the motel room, which was an exigent circumstance that justified a search of the room without a warrant to ensure the safety of the officers[,]” where the police received “a report of suspected prostitution activity in the room,” conducted a “knock and talk” procedure, and received consent to enter the motel room from someone who reasonably appeared to have “common authority over the room.” People v Thurmond, ___ Mich App ___, ___ (2023).

Where a police officer was dispatched to a domestic violence incident possibly involving weapons, a warrantless entry and search of the premises were permissible under both the exigent circumstances and emergency aid exceptions. People v Beuschlein, 245 Mich App 744, 746, 757-758 (2001).

Emergency aid. To justify the warrantless entry of a residence on the basis of an emergency, the officer must articulate specific and objective facts that reveal an actual emergency amounting to more than a mere possibility of an immediate risk of the destruction or removal of evidence. People v Blasius, 435 Mich 573, 593-594, 598 (1990).

A law enforcement officer’s warrantless entry into a home is permitted when the officer has “an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” Brigham City, Utah v Stuart, 547 US 398, 400, 405-407 (2006) (holding that if an officer’s action is justified under an objective view of the circumstances, the action is reasonable for Fourth Amendment purposes, regardless of the officer’s state of mind, and concluding that where officers were confronted with ongoing violence occurring within a home during their investigation of a neighbor’s early morning complaint about a loud party, exigent circumstances justified the officers’ warrantless entry). See also Michigan v Fisher, 558 US 45, 48 (2009) (concluding that the emergency aid exception applied where police responding to reports of a disturbance encountered “a tumultuous situation in the house” and “signs of a recent injury, perhaps from a car accident, outside”).

The emergency aid exception justified the warrantless entry of the defendant’s parents’ home, where officers, looking through a window in the front door to the house, saw a motionless person slumped over the kitchen table in close proximity to a rifle and ammunition. People v Tierney, 266 Mich App 687, 704-705 (2005). Based on these specific and articulable facts, officers had a reasonable belief that the person slumped over the table may have needed emergency medical assistance. Id.

Where a police officer was dispatched to a domestic violence incident possibly involving weapons, a warrantless entry and search of the premises were permissible under both the exigent circumstances and emergency aid exceptions. Beuschlein, 245 Mich App at 746, 757-758.

The emergency aid exception justified a warrantless entry where police were notified that the defendant’s front door was open and blowing in the wind, and where “[n]o one came to the open door” when “[t]he officers knocked on the door, rang the doorbell, and repeatedly announced their presence[;]” because the officers suspected a home invasion rather than drug activity, they were justified in entering the home to secure the premises and locate any victims or suspects inside.¹ People v Lemons, 299 Mich App 541, 546-548 (2013) (noting that “[t]he emergency-aid exception is not an inquiry into hindsight” and that “there was a very real possibility that someone could have been inside who needed police assistance”).² 

Because a police officer “might reasonably have believed that he was confronted with an emergency” and that failure to take immediate action might have resulted in the destruction of evidence, the warrantless collection of blood from a defendant arrested for criminal drunk driving was upheld. Schmerber v California, 384 US 757, 770-771 (1966) (noting that “where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant”).

However, “the natural metabolization of alcohol in the bloodstream [does not] present[] a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” Missouri v McNeely, 569 US 141, 145 (2013). Whether the exigency exception applies to the nonconsensual collection of blood requires a case-by-case review of the totality of the circumstances as to whether there has been a “showing [of] exigent circumstances that make securing a warrant impractical in a particular case.” Id. at 160. “[F]actors present in an ordinary traffic stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search[; t]he relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case.” Id. at 164. “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Id. at 152, 163 (noting the absence of “any . . . factors that would suggest [the arresting officer] faced an emergency or unusual delay in securing a warrant”).

In a plurality opinion³, the United States Supreme Court held that “in a narrow . . . category of cases . . . in which the driver is unconscious and therefore cannot be given a breath test, . . . the exigent circumstances rule almost always permits a blood test without a warrant.” Mitchell v Wisconsin, 588 US ___, ___ (2019). “[E]xigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious[.]” Id. at ___.

Community caretaking. While police officers “are often called to discharge noncriminal ‘community care-taking functions,’ such as responding to disabled vehicles or investigating accidents,” those “‘caretaking’ duties [do not] create[] a standalone doctrine that justifies warrantless searches and seizures in the home.” Caniglia v Strom, 593 US ___, ___ (2021), citing  Cady v Dombrowski, 413 US 433, 441 (1973). Similar to Caniglia, Cady “involved a warrantless search for a firearm[,] [b]ut the location of [the Cady] search was an impounded vehicle–not a home–a constitutional difference that [Cady] repeatedly stressed.” Caniglia, 593 US at ___ (quotation marks omitted). The recognition in Cady “that police officers perform many civic tasks in modern society was just that–a recognition that these tasks exists, and not an open-ended license to perform them anywhere.” Caniglia, 593 US at ___ (“[w]hat is reasonable for vehicles is different from what is reasonable for homes”).

As part of his or her “community caretaking” function, a police officer may enter a dwelling without a warrant where it is reasonably believed that a person inside is in need of medical assistance; the entry must be limited to the reason for its justification, and the officer must be motivated primarily by a perceived need to render assistance and may do no more than is reasonably necessary to determine whether assistance is required and render it. Davis, 442 Mich at 20-26 (1993).⁴ See also Hill, 299 Mich App at 404-410 (applying the community caretaking exception to the warrantless entry of the defendant’s home by police officers while performing a welfare check after the defendant’s neighbor called police with concerns about the defendant’s well-being, despite “a lack of direct evidence definitively showing that [he] was present and in actual need of aid or assistance,” where it was reasonable, under all of the circumstances, for the officers “to conclude that [the] defendant was not only present but in need of attention, aid, or some kind of assistance”).⁵ 

“[T]he community caretaking exception to the warrant requirement applies when a firefighter, responding to an emergency call involving a threat to life or property, reasonably enters a private residence in order to abate what is reasonably believed to be an imminent threat of fire inside.” Slaughter, 489 Mich at 316-317. In Slaughter, 489 Mich at 306-308, a firefighter responded to a 911 call from a townhouse resident reporting that water was flowing over her electrical box and behind a wall that adjoined the defendant’s townhouse; when the firefighter entered the defendant’s basement “to shut off [his] water and to assess whether any additional measures needed to be taken to prevent a fire,” the firefighter observed, in plain view, grow lights and marijuana plants, which were later seized pursuant to a search warrant. The Michigan Supreme Court held that warrantless entry is permissible where “a firefighter’s entry into a private residence [is] an exercise of community caretaking functions, and not an exercise of investigative functions,” and where the firefighter, “acting in good faith, . . . ‘possess[es] specific and articulable facts’ leading [him or her] to the conclusion that [his or her] actions [are] necessary to abate an imminent threat of fire inside the private residence.” Id. at 317, 320, quoting Davis, 442 Mich at 25. Thus, because “the responding firefighter[] believed that there existed the imminent threat of an electrical fire in [the] defendant’s residence, . . . reasonably believed that the danger posed an imminent threat to property or life, and . . . acted reasonably in abating that threat,” the lower courts erred in suppressing the marijuana that was discovered in plain view during the entry. Slaughter, 489 Mich at 328-329.

Hot pursuit. “‘Hot pursuit’ of a fleeing felon is one recognized example of exigent circumstances.” Hammerlund, 504 Mich at 460. In People v Santana, 427 US 38, 40 (1976), officers had probable cause to believe that the defendant had just been involved in the felony purchase of heroin when they observed defendant standing in the doorway of her home holding a brown paper bag. Officers pulled up within 15 feet of defendant, exited their vehicle shouting “police,” and displayed their identification. Id. Defendant retreated into her home where officers followed and arrested her; they found drugs in the bag and marked money on her person. Id. at 40-41. Under these circumstances, the United States Supreme Court concluded the police were in hot pursuit when they entered the defendant’s home because there was “a realistic expectation that any delay would result in destruction of evidence.” Id. at 43 (also noting that the arrest was constitutional because it began in a public place⁶).

Contrast with People v Hammerlund, 504 Mich 442, 446 (2019), where “a police officer entered [defendant’s] home to complete her arrest for a [90-day] misdemeanor offense,” after “she reached out her doorway to retrieve her identification[.]” Before entering the home, the officer “stood on [defendant’s] porch while she remained inside, approximately 15 to 20 feet away from the front door,” and defendant “passed [her identification] to [the officer] through a third party in the home.” Id. at 447, 448. Defendant “consistently maintained her reasonable expectation of privacy throughout the encounter,” thus, “the entry was not justified under the ‘hot pursuit’ exception to the warrant requirement” because “there was no evidence of [the] crime that she could destroy.” Id. at 446, 461. Additionally, there was “no suggestion that any emergency existed that would have entitled the police to enter defendant’s home throughout the conversation up to the point when defendant reached out to retrieve her identification.” Id. at 461. “[T]he circumstances were insufficient to justify the hot-pursuit exception to the warrant requirement,” and “[b]ecause the arrest was completed across the Fourth Amendment’s ‘firm line at the entrance of the home,’ it was presumptively unreasonable.” Id. at 463, quoting Payton v New York, 445 US 573, 586, 590 (1980).

The pursuit of a fleeing misdemeanor suspect does not categorically qualify as an exigent circumstance. Lange v California, 594 US ___, ___, ___ (2021). “Fourth Amendment precedents . . . point toward assessing case by case the exigencies arising from misdemeanants’ flight.” Id. at ___. “When the totality of circumstances shows an emergency–such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home–the police may act without waiting. And those circumstances . . . include the flight itself.” Id. at ___. “When the nature of the crime, the nature of the flight, and surrounding facts present no such exigency, officers must respect the sanctity of the home–which means that they must get a warrant.” Id. at ___.

B.Search Incident to Arrest

Once there is a custodial arrest, a full search of the person requires no additional justification. United States v Robinson, 414 US 218, 235 (1973). The Fourth Amendment is not violated where the police make an arrest based on probable cause and conduct a search incident to the arrest, even if the arrest is prohibited by state law. Virginia v Moore, 553 US 164, 176 (2008). “[O]fficers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence.” Id. at 176. This rule covers any “lawful arrest[,]” i.e., “an arrest based on probable cause[.]” Id. at 177. While some states have construed lawfulness as “compliance with state law[,]” the United States Supreme Court intends “‘lawful’” to mean in “compliance with constitutional constraints.” Id., citing Robinson, 414 US 218.

Presence in area known for illegal activity. “There was no probable cause to arrest [the] defendant for trespassing . . . under [a] city ordinance” where the defendant walked through a parking lot “that was open to the public, during business hours, for a very brief period of time[, and d]uring that brief time, no indication was given that [the] defendant was told to leave or that he annoyed or disturbed anyone[;]” “[t]he fact that the officer knew the parking lot . . . was often used for illegal drug transactions and other illicit purposes [did] not change the analysis.” People v Maggit, 319 Mich App 675, 684-686 (2017) (additionally holding that probable cause to arrest did not exist based on a no-trespassing sign in the parking lot or the police department’s receipt of a letter from one of the establishments served by the parking lot indicating its intent to prosecute trespassers). Moreover, no “reasonable mistake of law[]” occurred within the meaning of Heien v North Carolina, 574 US 54 (2014), such that no Fourth Amendment violation occurred; “the [officer’s] conclusion that [the] defendant violated the [trespassing] ordinance was not objectively reasonable[]” because “[t]he ordinance [unambiguously] prohibited remaining on property to the annoyance or disturbance of the lawful owner[,]” which “required knowledge on the part of [the] defendant that he was annoying or disturbing someone on the property[.]” Maggit, 319 Mich App at 687, 691.

Timing of search. Where law enforcement officers have “probable cause to arrest [a] defendant, the fact that [the] defendant was searched immediately before his [or her] arrest does not make the search incident to the arrest invalid.” People v Nguyen, 305 Mich App 740, 757 (2014) (citing People v Labelle, 478 Mich 891, 891 (2007), and concluding that, “[b]ecause 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 [are] not required to arrest [the] defendant before conducting the search incident to the arrest[]”) (emphasis added).

Cell phones. A warrant is generally required in order to perform a search of information on a cell phone, even when the cell phone is seized incident to arrest. Riley v California, 573 US 373, 403 (2014). When a search is of digital data there are “no comparable risks” to the concerns that underlie the search incident to arrest exception to the warrant requirement—harm to officers and the destruction of evidence; moreover, cell phones “place vast quantities of personal information literally in the hands of individuals[, and a] search of [such information] bears little resemblance to the type of brief physical search” that was previously sanctioned by the Court. Id. at 386 (noting, however, that other case-specific exceptions, such as the exigent circumstances exception, “may still justify a warrantless search of a particular phone”). When seized pursuant to a valid warrant, “a search of digital cell-phone data . . . must be reasonably directed at obtaining evidence relevant to the criminal activity alleged in that warrant. Any search of digital cell-phone data that is not so directed, but instead is directed at uncovering evidence of criminal activity not identified in the warrant, is effectively a warrantless search that violates the Fourth Amendment absent some exception to the warrant requirement.” People v Hughes, 506 Mich 512, 516-517 (2020). See Section 11.5 for further discussion of the Hughes case.

“[A]n arrestee has a reasonable expectation of privacy in his or her cell phone, and . . . the government’s act of answering the phone without the arrestee’s consent and without a warrant constitutes a search under the Fourth Amendment.” People v Abcumby-Blair, 335 Mich App 210, 232 (2020). “[M]onitoring and answering a . . . [cell] phone . . . reveals not only the defendant’s contacts but also information that a defendant might have added to his contacts, including a photograph, name, or other identifying information.” Id. at 234. In Abcumby-Blair, the act of answering defendant’s ringing cell phone “gave [the officer] access to more than the caller; it provided him with private information that he did not have before.” Id.. Because “answering defendant’s ringing cell phone constituted a search under the Fourth Amendment, . . . [the officer’s] testimony regarding the phone call was inadmissible.” Id.. “[I]nformation on a cell phone is not immune from a search, [but] a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.” Id. at 234 n 9 (quotation marks and citation omitted).

Breath and blood tests. “[T]he Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving[,]” and a state may criminally prosecute a driver for refusing a warrantless breath test;⁷ “[t]he impact of breath tests on privacy is slight, and the need for [blood alcohol concentration (BAC)] testing is great.” Birchfield v North Dakota, 579 US 438, 474 (2016). However, “[b]ecause breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, . . . a blood test[] may [not] be administered as a search incident to a lawful arrest for drunk driving[,]” and “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Id. at 476-478 (concluding that one of the three petitioners in the case “was threatened with an unlawful search” under a state law making it a crime to refuse a warrantless blood draw, and that “the search he refused [could not] be justified as a search incident to his arrest or on the basis of implied consent[]”) (emphasis added).⁸

The defendant could not prevent analysis of a blood sample taken with her consent by withdrawing consent after the collection of the sample was completed. People v Woodard, 321 Mich App 377, 395, 396 (2017). “[B]lood [that] has been lawfully collected for analysis may be analyzed without infringing on additional privacy interests or raising separate Fourth Amendment concerns.” Id. at 390-391. “[O]nce police procured a sample of [the] defendant’s blood pursuant to her consent, she had no reasonable expectation of privacy in the blood alcohol content of that sample and it could be examined for that purpose without her consent[;]” “the subsequent analysis of the blood did not constitute a separate search and [the] defendant simply had no Fourth Amendment basis on which to object to the analysis of the blood for the purpose for which it was drawn.” Id. at 396. “[W]ithdrawal of consent after the search has been completed does not entitle a defendant to the return of evidence seized during the course of a consent search because those items are lawfully in the possession of the police; and, by the same token, a defendant who consents to the search in which evidence is seized cannot, by revoking consent, prevent the police from examining the lawfully obtained evidence.” Id. at 394, 395.

C.Automobile Exception⁹

An automobile may be searched without a warrant. Carroll v United States, 267 US 132 (1925). Two justifications support the automobile exception: (1) the ready mobility of vehicles, and (2) the pervasive regulation of vehicles capable of traveling on public highways. See Collins v Virginia, 584 US ___, ___ (2018). However, “the automobile exception does not permit an officer without a warrant to enter a home or its curtilage^[10] in order to search a vehicle therein.” Id. at ___ (“the scope of the automobile exception extends no further than the automobile itself”).

While “[t]he law recognizes that expectations of privacy are diminished in an automobile when compared, for example, to a home, [o]nce a court has determined that the defendant had a legitimate expectation of privacy in the place searched, . . . there is no ‘automobile exception’ to the requirements for a consent search.” People v Mead, 503 Mich 205, 216 n 3 (2019) (citation omitted).¹¹

Although “a police officer enforcing [MCL 257.602b, holding or using a mobile electronic device,] may treat a violation of [MCL 257.602b] as the primary or sole reason for issuing a citation to a driver,” a police officer is prohibited from searching “a motor vehicle or the driver or passenger in the motor vehicle solely because of a violation of [MCL 257.602b].” MCL 257.602b(9).

D.Inventory Search

After a custodial arrest, the police may, according to established procedure, search any property belonging to the suspect that is impounded at the time of arrest; this is commonly referred to as an inventory search. See Slaughter, 489 Mich at 311-312; Hill, 299 Mich App at 418.

In order for a vehicle inventory search to be valid, it must be shown that it was conducted in accordance with reasonable procedures established to safeguard impounded vehicles and their contents. People v Long (On Remand), 419 Mich 636, 650 (1984). Where no such procedures are present or where a police officer acts in a manner contrary to established procedures, the inventory search is unlawful. Id. at 648.

The decision to impound a car must be based on an established set of departmental procedures followed by all officers. People v Toohey, 438 Mich 265, 267, 291 (1991). An impoundment and subsequent inventory search is undertaken as part of the caretaking functions performed by the police. Id. at 284-285. Impoundment must not be used as a pretext for conducting a criminal investigation. Id. at 285.

Police officers may open closed containers pursuant to an inventory search only if established departmental policies authorize such an action. See Florida v Wells, 495 US 1, 4-5 (1990) (holding that, absent a policy with respect to the opening of closed containers encountered during an inventory search, such a search is not sufficiently regulated to satisfy the Fourth Amendment).

E.Investigatory Stop—Terry¹² Stop¹³

A police officer may make a brief investigatory stop (a Terry stop) of an individual if the officer has reasonable suspicion that crime is afoot. Terry v Ohio, 392 US 1, 27 (1968); People v Champion, 452 Mich 92, 98 (1996). A Terry stop need not be based upon probable cause; rather, an officer may “stop and frisk” a defendant based upon a reasonable suspicion supported by articulable facts that criminal activity might be afoot. Terry, 392 US at 30. Reasonable suspicion is more than a hunch, but less than the level of suspicion required for probable cause, Champion, 452 Mich at 98, and must be based on commonsense judgments and inferences about human behavior, Illinois v Wardlow, 528 US 119, 125 (2000). “[A]n officer ‘must have had a particularized and objective basis for the suspicion of criminal activity.’” People v Pagano, 507 Mich 26, 32 (2021), quoting Champion, 452 Mich at 98-99.

During an investigatory stop, “[a] police officer may perform a limited patdown search for weapons if the officer has a reasonable suspicion that the individual is armed, and thus poses a danger to the officer or to other persons.” People v Custer, 465 Mich 319, 328 (2001) (opinion by Markman, J.); see Terry, 392 US at 27. “Terry strictly limits the permissible scope of a patdown search to that reasonably designed to discover guns, knives, clubs, or other hidden instruments that could be used to assault an officer.” Champion, 452 Mich at 99. The officer may seize any contraband that is immediately apparent if he or she has probable cause to believe the object is contraband. Id. at 100-101. “It is the totality of the circumstances in a given case that determine whether a patdown search is constitutional.” Custer, 465 Mich at 328.

“Fingerprinting pursuant to the [city of Grand Rapids Police Department’s (GRPD) photographing and printing (P & P) policy¹⁴] exceeded the permissible scope of a Terry^[15] stop because it was not reasonably related in scope to the circumstances that justified the stop. Having held that fingerprinting constitutes a search, it is clear that fingerprinting does not fall within the limited weapons search that is justified under certain circumstances during a Terry stop; fingerprinting is simply not related to an officer’s immediate safety concerns.” Johnson v Vanderkooi, 509 Mich 524, 540-541 (2022). While “questions concerning a suspect’s identity are a routine and accepted part of many Terry stops, . . . the Fourth Amendment does not require an individual to answer such questions, and to the extent that a state statute can require an individual to disclose their name in the course of a Terry stop, a request for identification must still be reasonably related in scope to the circumstances that justified the stop[.]” Id. at 541 (cleaned up). “Terry caselaw does not justify stops merely for the general purpose of crime-solving, especially for those crimes that have yet to occur.” Id. at 542. The Johnson Court held that “fingerprinting of each plaintiff also exceeded the permissible duration of a Terry stop” because “fingerprinting . . . after concluding that no crime had occurred impermissibly extended the duration of the Terry stop.” Id. at 542, 543. Moreover, “[b]ecause the P&P policy impermissibly exceed[ed] both the scope and duration of a Terry stop, neither of the searches conducted here [fell] within the stop-and-frisk exception to the warrant requirement.” Id. at 543. Thus, the “fingerprinting . . . violated the Fourth Amendment prohibition against unreasonable searches.” Id. at 543. Finally, the Court held that “fingerprinting constitutes a search under the trespass doctrine and that the P&P policy is facially unconstitutional because it authorizes the GRPD to engage in unreasonable searches contrary to the Fourth Amendment.” Id. at 547.

A consensual encounter between an officer and a private citizen does not implicate the citizen’s constitutional right to be free from unreasonable searches and seizures. People v Jenkins, 472 Mich 26, 32-33 (2005). “When an officer approaches a person and seeks voluntary cooperation through noncoercive questioning, there is no restraint on that person’s liberty, and the person is not seized.” Id. at 33. “A ‘seizure’ within the meaning of the Fourth Amendment occurs only if, in view of all the circumstances, a reasonable person would have believed that he [or she] was not free to leave.” Id. at 32. An initially consensual encounter may become a seizure when, based on the information obtained and observations made, an officer develops reasonable suspicion that the citizen has been involved in criminal activity. Id. at 35. Evidence discovered as a result of these legal detentions is properly seized at the time the individual citizen is seized. Id. at 34-35.

“‘[A]n anonymous tip alone seldom demonstrates [an] informant’s basis of knowledge or veracity.’” Navarette v California, 572 US 393, 397 (2014), quoting Alabama v White, 496 US 325, 329 (1990) (emphasis added). However, where, under the totality of the circumstances, an anonymous tip bears “adequate indicia of reliability” and “creates reasonable suspicion that ‘criminal activity may be afoot,’” an investigative stop may be justified. Navarette, 572 US at 398, 401, quoting Terry, 392 US at 30. See also People v Horton, 283 Mich App 105, 113 (2009) (reasonable suspicion that a person has engaged or is engaging in criminal activity may properly be based on an in-person tip from a citizen who declines to identify him- or herself, where the tipster provides the police with sufficiently detailed information).¹⁶

Under the totality of the circumstances, an “anonymous tip did not give rise to a reasonable and articulable suspicion that defendant was engaged in a traffic violation, must less criminal activity” where the caller reported that they believed defendant might be intoxicated after observing her outside her vehicle yelling at her children and appearing to be obnoxious. Pagano, 507 Mich at 29-30, 33-34 (holding that a stop based solely on this information violated the Fourth Amendment because “there was no report of even a minor traffic infraction”). The caller “relayed the vehicle’s license plate number and the direction in which it was traveling, as well as the vehicle’s make, model, and color,” and within 30 minutes the officer was able to locate and “corroborate information regarding the identification of the vehicle.” Id. at 30, 33. “However, that a tipster has reliably identified a particular individual does not necessarily mean that information contained in a tip gives rise to anything more than an inchoate or unparticularized suspicion of criminal activity.” Id. at 30, 32-33 (noting that after locating defendant’s vehicle and following it for a short time, “the officer did not see defendant commit any traffic violations,” and the “officer testified that defendant was detained solely on the basis of the information presented in that anonymous 911 call”). While “certain driving behaviors^[17] are so strongly correlated with drunk driving that, when reported to the police by anonymous callers, the totality of the circumstances may give rise to a reasonable and articulable suspicion of criminal activity,” “not all traffic violations imply intoxication and . . . unconfirmed reports of driving without a seatbelt or slightly over the speed limit, for example, are so tenuously connected to drunk driving that a stop on those grounds alone would be constitutionally suspect.” Id. at 34 (quotation marks, alteration, and citation omitted).

“[A] tribal police officer has authority to detain temporarily and to search non-Indians traveling on public rights-of-way running through a reservation for potential violations of state or federal law.” United States v Cooley, 593 US ___, ___ (2021). Such a “search and detention, however, [does] not subsequently subject [the non-Indian detainee] to tribal law, but rather only to state and federal laws that apply whether an individual is outside a reservation or on a state or federal highway within it.” Id. at ___.

F.Consent

“[A]n officer must obtain consent [to search] from someone with the actual or apparent authority to give it.” People v Mead, 503 Mich 205, 219 (2019). “[T]he scope of any consent search is defined by the consenting party, and . . . ‘[t]he standard for measuring the scope of . . . consent under the Fourth Amendment is that of ‘objective reasonableness[.]’” Id. at 219, quoting Illinois v Rodriguez, 497 US 177, 188-189 (1990) (second alteration in the original). In addition, while “[t]he law recognizes that expectations of privacy are diminished in an automobile when compared, for example, to a home, [o]nce a court has determined that the defendant had a legitimate expectation of privacy in the place searched . . . there is no ‘automobile exception’ to the requirements for a consent search.” People v Mead, 503 Mich 205, 216 n 3 (2019) (citation omitted).

•Consent by defendant:

When a defendant voluntarily consents to a warrantless search or seizure, there is no Fourth Amendment violation. People v Chism, 390 Mich 104, 123 (1973). To justify a warrantless search or seizure on the basis of consent, the prosecution must show by clear and positive evidence that the defendant consented to the search and seizure. People v Kaigler, 368 Mich 281, 294 (1962). Whether consent was in fact voluntary in a particular case or was given in submission to an express or implied assertion of authority is a question of fact to be determined in light of all the circumstances. Schneckloth v Bustamonte, 412 US 218, 227 (1973).

There are “basic principles governing the scope of searches authorized by consent.” People v Dagwan, 269 Mich App 338, 343 (2005). “First, the party granting consent to a search may limit its scope or may revoke consent after granting it.” Id. “Thus, because consent flows from its grantor, ‘[a] suspect may of course delimit as he [or she] chooses the scope of the search to which he [or she] consents.’” Id., quoting Florida v Jimeno, 500 US 248, 252 (1991) (first alteration in original). “Second, the constitutional standard for determining the scope of a consent to search ‘is that of “objective reasonableness”—what would the typical reasonable person have understood by the exchange between the officer and the suspect?’” Dagwan, 269 Mich App at 343, quoting Jimeno, 500 US at 251. “The Jimeno Court also observed, ‘[t]he scope of a search is generally defined by its expressed object.’” Dagwan, 269 Mich App at 343, quoting Jimeno, 500 US at 251.

The defendant could not prevent analysis of a blood sample taken with her consent by withdrawing consent after the collection of the sample was completed. People v Woodard, 321 Mich App 377, 395, 396 (2017). “[B]lood [that] has been lawfully collected for analysis may be analyzed without infringing on additional privacy interests or raising separate Fourth Amendment concerns.” Id. at 390-391. “[O]nce police procured a sample of [the] defendant’s blood pursuant to her consent, she had no reasonable expectation of privacy in the blood alcohol content of that sample and it could be examined for that purpose without her consent[;]” “the subsequent analysis of the blood did not constitute a separate search and [the] defendant simply had no Fourth Amendment basis on which to object to the analysis of the blood for the purpose for which it was drawn.” Id. at 396. “[W]ithdrawal of consent after the search has been completed does not entitle a defendant to the return of evidence seized during the course of a consent search because those items are lawfully in the possession of the police; and, by the same token, a defendant who consents to the search in which evidence is seized cannot, by revoking consent, prevent the police from examining the lawfully obtained evidence.” Id. at 394-395.

The “defendant’s stated fear of the economic consequences that would stem from the suspension of his license under the implied-consent law” did not render his consent to submit to a blood draw invalid where he “admitted during [an] evidentiary hearing that he fully understood his choices under the implied-consent law and made an informed, reasoned decision.” People v Stricklin, 327 Mich App 592, 599, 603 (2019) (defendant did not challenge the constitutionality of Michigan’s implied consent law, but instead argued that “the threat of [licensing] sanctions affected the voluntariness of his . . . consent” “because he drove for a living and feared the impact that losing his license would have on his economic livelihood”). “Having to make a choice between two undesirable options does not render defendant’s express consent to the blood draw coercive and involuntary.” Id. at 603.

Consent given by a suspect who is not in custody may be valid even if given after a request to speak to an attorney. People v Marsack, 231 Mich App 364, 376 (1998).

“[T]he trial court did not err when it determined that defendant’s consent [to search his apartment] was valid” where defendant’s argument that he did not consent was “based solely on acceptance of his version of facts, which the trial court did not accept.” People v Rodriguez, 327 Mich App 573, 584 (2019) (noting that a reviewing court is required to “defer to the trial court’s credibility determinations”).

•Consent by third person:

“[A]n officer must obtain consent [to search] from someone with the actual or apparent authority to give it.” People v Mead, 503 Mich 205, 219 (2019). In conducting a traffic stop, “[a]n objectively reasonable police officer would not have believed that [the driver] had actual or apparent authority over” defendant-passenger’s backpack where: (1) the “defendant asserted a clear possessory interest in his backpack by clutching it in his lap” before being ordered to exit the vehicle; (2) there was “[n]o evidence suggest[ing] that [the driver] had mutual use of the backpack”; (3) the officer “testified that he believed the backpack belonged to the defendant”; and (4) the officer “knew at the time of the search that [the driver] and the defendant were near strangers.” Id. at 214, 219 (“the warrantless search of the defendant’s backpack was unreasonable because the driver lacked apparent common authority to consent to the search”). The scope of the driver’s consent was “irrelevant” because “[b]y definition, the scope of a person’s consent cannot exceed her apparent authority to give that consent.” Id. at 219.

“[P]olice officers may search jointly occupied premises if one of the occupants^[18] consents.” Fernandez v California, 571 US 292, 294 (2014), citing United States v Matlock, 415 US 164 (1974). “[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Matlock, 415 US at 171. See also Illinois v Rodriguez, 497 US 177, 181 (1990) (addressing “common authority” and holding that a person who has equal possession or control of the premises searched may also consent to a search). “[P]olice officers’ belief in a third party’s ability to consent to a search must be reasonable under the circumstances; a good-faith belief is not the controlling criterion.” People v Goforth, 222 Mich App 306, 312 (1997). Police need not “make a further inquiry regarding a third party’s ability to validly consent to a search unless the circumstances are such as to cause a reasonable person to question the consenting party’s power or control over the premises or property.” Id.

In Georgia v Randolph, 547 US 103 (2006), the United States Supreme Court “recognized a narrow exception” to the rule of Matlock, 415 US 164, that “consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search.” Fernandez, 571 US at 294, 300. In Randolph, 547 US at 122-123, the Court held that a warrantless search of a shared dwelling, conducted pursuant to the consent of one co-occupant when a second co-occupant is present and expressly refuses to consent to the search, is unreasonable and invalid as to the co-occupant who refused consent. Stated another way, “[a] co-occupant[] . . . can invalidate the consent given by another occupant if he is present on the premises and expressly objects to the search.” City of Westland v Kodlowski, 298 Mich App 647, 667 (2012), vacated in part and reversed in part on other grounds 495 Mich 871 (2013).¹⁹

However, the holding of Randolph, 547 US 103, is “limited to situations in which the objecting occupant is physically present,” and it does not apply “if the objecting occupant is absent when another occupant consents.” Fernandez, 571 US at 294. Moreover, “an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason,” even if the absent occupant “objected to the search while he was still present.” Id. at 303 (holding that “consent . . . provided by an abused woman well after [the petitioner] had been removed [by police officers] from the apartment they shared” was sufficient to justify a warrantless search of the apartment, even though the petitioner had “appeared at the door” and objected to the officers’ entry before he was placed under arrest and taken to the police station).

A third-party’s consent that is the product of coercion and duress is invalid. See Rodriguez, 327 Mich App at 584-585, citing People v Bolduc (On Remand), 263 Mich App 430, 440 (2004). However, in Rodriguez, an officer’s statement to a co-defendant who resided with defendant that the co-defendant would “need[] to call a family member to come to the apartment to look after her children, otherwise he would have to call [Child Protective Services],” “was not a coercive tactic to obtain [co-defendant’s] consent to the search,” but rather was “a statement of what would inevitably happen if [co-defendant] did not call a family member to watch her children.” Rodriguez, 327 Mich App at 584-585 n 6 (the Rodriguez court acknowledged it was unclear whether defendant had standing to challenge co-defendant’s consent, but standing was assumed for purposes of its decision since the parties did not raise the issue).

The seizure of a wallet, keys, and a cell phone from the defendant’s mother’s apartment “fell outside the scope of [the mother’s] consent” where “[t]he testimony establishe[d] that a reasonable person would have believed that the scope of the search pertained [only] to illegal drugs hidden in the apartment.” People v Mahdi, 317 Mich App 446, 461, 474 (2016). “‘[T]he scope of a search is generally defined by its expressed object,’” and the mother’s “consent to search her apartment for the limited purpose of uncovering illegal drugs did not constitute consent to seize any item.” Id. at 461-462, quoting Dagwan, 269 Mich App at 343 (internal quotation marks omitted).

“While a co-occupant may invalidate another co-occupant’s consent in cases where the police are entering to search for evidence, a co-occupant’s withdrawal of his consent to the presence of the police does not preclude officers from continuing to investigate cases of potential domestic violence.” Kodlowski, 298 Mich App at 667-669 (holding that “defendant’s decision to revoke his consent [to search] did not render the officers’ presence unlawful,” since “the officers were present to respond to a domestic dispute” and therefore “had an obligation to investigate potential domestic violence”).

When a defendant is arrested and a cotenant consents to an officer’s entry into the home the cotenant shares with the defendant, the defendant’s invocation of his right to counsel and his right to remain silent did not constitute an objection to the officer’s entry for purposes of suppressing incriminating evidence against the defendant observed by the officer while in the home. People v Lapworth, 273 Mich App 424, 425 (2006).

“Consent to search a motel or hotel room may be obtained from the person whose property is searched or from a third party who possess common authority over the premises.” People v Thurmond, ___ Mich App ___, ___ (2023). In Thurmond, the police “had a reasonable basis for believing” the woman who answered the door and allowed the police to enter the motel room “had common authority over the room” because she “clearly occupied the room” and “matched the description of the woman who [a witness] met for the purpose of engaging in sex in the room in exchange for money[.]” Id. at ___.

Where the defendant was permitted to use a third-party’s personal computer, which was located in a residence separate from the defendant’s, the third-party’s consent to search the computer was valid, even though the defendant’s e-mail account was password protected. People v Brown, 279 Mich App 116, 132-134 (2008).

•Consent obtained by reference to search warrant:

There is no consent if police say or suggest that they have a search warrant if they do not, in fact, have one.

“In Bumper v North Carolina, [391 US 543 (1968)], the United States Supreme Court made clear that where a person ‘permits’ a search in the face of an assertion by the police that they have a warrant, there is no consent that can support the validity of the search.

* * *

“[T]he defendant testified that [the police officer] displayed a search warrant form in his folder when he confronted the defendant. The defendant also testified that he believed the officers had a warrant and allowed them to enter for that reason. The circuit judge ultimately found that testimony believable, relying particularly on the specificity of the defendant’s testimony by contrast to that of the officers. Such factual determinations by trial judges are to be sustained unless clearly erroneous.” People v Farrow, 461 Mich 202, 207-208 (1999).

G.Special Needs, Inspections, Border Searches, and Regulatory Searches

Certain searches do not have to be accompanied by a warrant so long as the need to search outweighs the invasion that the search entails. A warrant is not required under the governmental “special needs” or regulatory exception to the warrant requirement as long as the search satisfies reasonable legislative or administrative standards. People v Chowdhury, 285 Mich App 509, 517, 522 (2009) (ordinance permitting police to conduct warrantless preliminary breath tests (PBTs) on minors found unconstitutional; the special needs exception was inapplicable because the police were merely attempting to detect evidence of ordinary criminal wrongdoing). Likewise, inspections, border searches, and regulatory searches must be based upon reasonable standards. See United States v Brignoni-Ponce, 422 US 873, 884 (1975) (“[e]xcept at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country[]”). See also Camara v Municipal Court, 387 US 523, 528-539 (1967) (administrative searches by municipal health and safety inspectors constitute significant intrusions upon protected Fourth Amendment interests, and lack traditional safeguards when conducted without warrant procedure; “[i]f a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant”); People v Beydoun, 283 Mich App 314, 316, 323-324 (2009) (exemption from the warrant requirement applies to properly conducted administrative inspections of pervasively regulated industries, e.g., tobacco products).

H.Pervasively Regulated Industry

“The exception to the warrant requirement that has been carved out for pervasively regulated industries has been denoted as either the ‘Colonnade-Biswell doctrine’^[20] or the ‘pervasively regulated industry’ exception to the warrant requirement[.]” People v Vaughn, ___ Mich App ___, ___ (2022). The pervasively regulated industry “exception is founded upon the legal recognition that owners of pervasively regulated businesses have a reduced expectation of privacy.” Id. at ___. “To assist in determining whether a particular business is so pervasively regulated that administrative warrantless searches” are permissible, courts consider seven factors:

“(1) the existence of express statutory authorization for search or seizure;

(2) the importance of the governmental interest at stake;

(3) the pervasiveness and longevity of industry regulation;

(4) the inclusion of reasonable limitations on searches in statutes and regulations;

(5) the government’s need for flexibility in the time, scope and frequency of inspections in order to achieve reasonable levels of compliance;

(6) the degree of intrusion occasioned by a particular regulatory search; and

(7) the degree to which a business person may be said to have impliedly consented to warrantless searches as a condition of doing business, so that the search does not infringe upon reasonable expectations of privacy.” Id. at ___.

The United States “Supreme Court has to date held that this narrow warrant exception applies to four closely regulated industries: (1) liquor sales,” “(2) gun sales,” “(3) mining,” and “(4) automobile junkyards.” Vaughn, ___ Mich App at ___. Michigan “courts have likewise recognized several additional businesses as pervasively regulated industries,” including “commercial fishing,” “massage parlors,” “salvage yards,” “liquor establishments,” and “tobacco dealers.” Id. at ___. In Vaughn, the Michigan Supreme Court added “vehicle repair shops to that list” Id. at ___ (noting that “there is express statutory authorization to conduct unannounced searches of the premises, parts records and parts inventories of vehicle repair shops”). Accordingly, the Court held “that police could perform a warrantless search of [a vehicle repair shop], a business that is pervasively regulated by the state, without offending either the state or federal constitutions.” Id. at ___. Although “a warrantless search was permitted as an exception to the warrant requirement for pervasively regulated businesses, the search actually engaged in must still have been reasonable.” Id. at ___. The Vaughn Court concluded that “it is not constitutionally unreasonable for officers to inspect the VINs of vehicles on the premises when conducting a search of a vehicle repair shop that admittedly has no complying documents for the officers to review.” Id. at ___. Therefore, “the trial court erred in interpreting MCL 257.1317(1) to limit inspections to only those locations where paper records and documents would reasonably be located, which the trial court ruled did not include the gated lot.” Vaughn, ___ Mich App at ___.