The particular rules pertaining to search and seizure vary depending upon the location of the search. Courts have justified the different levels of protection by examining the expectation of privacy a person might have in a particular location or object and balancing the level of intrusiveness of the search and any overriding societal interests.
An individual’s expectation of privacy in his or her residence extends to the curtilage, i.e., the area immediately surrounding the dwelling. United States v Dunn, 480 US 294, 300 (1987); see also Florida v Jardines, 569 US 1, 6 (2013) (police officers may not physically enter the curtilage of a home “to engage in conduct not explicitly or implicitly permitted by the homeowner[]”). In evaluating whether an area is included in the curtilage of a dwelling, the court should examine four factors (the “Dunn factors”):
(1) the proximity of the area claimed to be curtilage to the home;
(2) whether the area is included within an enclosure surrounding the home;
(3) the nature of the uses to which the area is put;
(4) and the steps taken by the resident to protect the area from observation by people passing by. Dunn, 480 US at 301.
“The front porch is the classic exemplar” of an area included within the curtilage of a home. Jardines, 569 US at 7. Depending on the circumstances, an individual may not have a reasonable expectation of privacy in an enclosed porch through which a person must pass in order to get to the dwelling’s front door. People v Tierney, 266 Mich App 687, 691, 697, 701-704 (2005) (holding that police officers did not violate the Fourth Amendment when they opened the unlocked door to an unheated porch, which was used as a storage area, and crossed the porch to knock on the inner residence door, where the police did not attempt to search the porch).
However, officers may not physically intrude on a homeowner’s property, including a front porch, for the purpose of gathering evidence. Jardines, 569 US at 3 (holding that “[the use of] a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a ‘search’ within the meaning of the Fourth Amendment[]”).
“Just like the front porch, side garden, or area ‘outside the front window,’” a “partially enclosed portion of [a] driveway that abuts the house” is “‘an area adjacent to the home and “to which the activity of home life extends,”’ and so is properly considered curtilage[.]” Collins v Virgina, 584 US ___, ___ (2018) (citations omitted). Accordingly, an officer’s search of a motorcycle parked in a portion of the driveway that was partially enclosed “not only invaded [the defendant’s] Fourth Amendment interest in . . . the motorcycle, but also . . . in the curtilage of [the defendant’s] home.” Id. at ___ “[T]he automobile exception[1] does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.” Id. at ___ (“the scope of the automobile exception extends no further than the automobile itself”).
2.Standing (Expectation of Privacy)
An individual who takes “normal precautions to maintain her privacy” has “a legitimate expectation of privacy in the interior of her barns.” People v DeRousse, 341 Mich App 447, 456 (2022). In DeRousse, the prosecution argued that a warrant was not required to search two pole barns because “the barns were located outside the curtilage of [her] home and [she] did not have a reasonable expectation of privacy in either barn,” noting that “there was not a separate fence around either barn, both barns could be seen from the road, and they were both easily accessible from the road.” Id. at 454, 455. However, the Court of Appeals deemed “[s]uch facts” “pertinent to whether [the defendant] had a reasonable expectation of privacy in the exteriors of the barns” — “not the interiors.” Id. at 455. The Court observed that “the secured nature of the west pole barn reflects that [the defendant] took normal precautions to maintain her privacy.” Id. at 456. “[A]lthough the door to the east pole barn was partially open when Lutz was first on the property, given that nothing incriminating was observed through the entry,” the Court was “not persuaded that [the defendant] lacked any reasonable expectation of privacy in the interior of the barn.” Id. at 456. Accordingly, a “warrant was required to search the barns, notwithstanding that they were located outside the curtilage of [the defendant’s] home.” Id. at 460.
Where evidence demonstrates that a defendant resides in a dwelling owned or rented by someone else, the defendant may have standing to challenge a search of the residence. See People v Mahdi, 317 Mich App 446 (2016). In Mahdi, “[the] defendant had a legitimate expectation of privacy in his mother’s apartment that society recognizes as reasonable[,]” and he therefore “had standing to challenge the search of [the apartment] and the seizure of” incriminating evidence from the apartment. Mahdi, 317 Mich App at 459-460. “[P]olice officers recovered . . . several items indicating that [the] defendant resided [in the apartment] with his mother, including tax paperwork listing [the] defendant’s name and the address of [the apartment,] . . . a collections notice for [the] defendant at [the apartment], . . . Friend of the Court paperwork for [the] defendant[] . . . list[ing] [the apartment] as his address[, and] . . . a land sale registration form signed by [the] defendant listing [the apartment] as his address[,]” and “the officers found [the] defendant’s personal belongings in [the apartment] after arresting [him;]” furthermore, he “answered the door when the police officers arrived at [the apartment], indicating that he had control over the apartment and the ability to regulate its access.” Id.
An individual may lack a reasonable expectation of privacy with respect to a search of a dwelling that he or she owns but illegally occupies. People v Antwine, 293 Mich App 192, 195-196, 198 (2011). “[A]n overall reasonable expectation of privacy—not the existence (or the lack) of a property right—controls the analysis[,] and[] . . . wrongful presence [on the property] weighs against a reasonable expectation of privacy.” Id. at 200 (holding that once police officers determined that the defendant was residing in a condemned house illegally, “it was reasonable for them to secure the home and look for other illegal residents[]”).
An individual who is an overnight guest in a dwelling may establish that he or she has a reasonable expectation of privacy recognized by the Fourth Amendment in the home of his or her host. Minnesota v Olson, 495 US 91, 96-97 (1990). Conversely, a person who is briefly present in a dwelling, with the owner’s consent, may not claim the protections intended by the Fourth Amendment. Minnesota v Carter, 525 US 83, 90 (1998).
3.Factors Involved in Dwelling Searches
a.Search Warrant and Knock-and-Announce Statute
The knock-and-announce statute, MCL 780.656, requires that police executing a search warrant give notice of their authority and purpose and be refused entry before forcing their way in. People v Fetterley, 229 Mich App 511, 521 (1998). MCL 780.656 provides:
“The officer to whom a warrant is directed, or any person assisting him[ or her], may break any outer or inner door or window of a house or building, or anything therein, in order to execute the warrant, if, after notice of his [or her] authority and purpose, he [or she] is refused admittance, or when necessary to liberate himself [or herself] or any person assisting him [or her] in execution of the warrant.”
The interests protected by the knock-and-announce rule include:
•protection of human life and limb (because an unannounced entry may provoke violence when a surprised resident acts in self-defense);
•protection of property; and
•protection of those elements of privacy and dignity that can be destroyed by a sudden entrance. Hudson v Michigan, 547 US 586, 593-594 (2006).
Evidence seized pursuant to a violation of the knock-and-announce rule need not always be suppressed. People v Howard (Troy), 233 Mich App 52, 60-61 (1998). Suppression is appropriate for violations of the knock-and-announce statute only where the police conduct is unreasonable by Fourth Amendment standards. Id. Further, where an interest that is violated is not an interest protected by the knock-and-announce rule, the exclusionary rule is inapplicable. Hudson, 547 US at 594. The knock-and-announce rule does not protect an individual’s interest in preventing the police from seeing or taking evidence described in a warrant. Id.
b.Search Warrant and “No Knock” Entry
“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by[] . . . allowing the destruction of evidence. This standard[] . . . strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. . . . This showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged.” Richards v Wisconsin, 520 US 385, 394-395 (1997).
“[T]he knock and talk procedure is a law enforcement tactic in which the police, who possess some information that they believe warrants further investigation, but that is insufficient to constitute probable cause for a search warrant, approach the person suspected of engaging in illegal activity at the person’s residence (even knock on the front door), identify themselves as police officers, and request consent to search for the suspected illegality or illicit items.” People v Frohriep, 247 Mich App 692, 697 (2001). The knock-and-talk procedure is constitutional, but it is subject to judicial review to ensure compliance with general constitutional protections. Id. at 698. “Whenever the knock and talk procedure is utilized, the ordinary rules that govern police conduct must be applied to the circumstances of the particular case.” People v Galloway, 259 Mich App 634, 639 (2003).
Police officer’s purpose. Officers may not “physically intrud[e] on [a homeowner’s] property,” including a front porch, for the purpose of gathering evidence, and “[the use of] a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a ‘search’ within the meaning of the Fourth Amendment” because it constitutes “an unlicensed physical intrusion” into an area that is protected under the Fourth Amendment. Florida v Jardines, 569 US 1, 3, 7, 11 (2013) (holding that “introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence” went beyond the “implicit license [that] typically permits [a] visitor to approach [a] home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave”). See also People v Towne, 505 Mich 865, 866 (2019) (holding “police officers . . . exceeded the proper scope of a knock and talk by approaching and securing the defendant’s home without sufficient reason to believe that the subject of the arrest warrant was inside the home”).
A trespass alone does not violate the Fourth Amendment. People v Frederick, 500 Mich 228, 236 (2017), rev’g 313 Mich App 457 (2015). “A police officer walking through a neighborhood who takes a shortcut across the corner of a homeowner’s lawn has trespassed. Yet that officer has not violated the Fourth Amendment because, without some information-gathering, no search has occurred.” Id. at 240 (concluding that because the officers visited the respective homes for the express purpose of obtaining information about marijuana butter they suspected each defendant possessed, they were gathering information and their conduct violated the Fourth Amendment). “[A]pproaching a home with the purpose of gathering information is not, standing alone, a Fourth Amendment search”; however, “when ‘conjoined’ with a trespass, information-gathering—which need not qualify as a search, standing alone—is all that is required to turn the trespass into a Fourth Amendment search.” Id. at 241, citing United States v Jones, 565 US 400, 408 n 5 (2012).
Time of day. “[T]he scope of the implied license to approach a house and knock is time-sensitive. Frederick, 500 Mich at 238. “When the officers stray beyond what any private citizen might do, they have strayed beyond the bounds of a permissible knock and talk; in other words, the officers are trespassing.” Id. at 239. “[T]here is generally no implied license to knock on someone’s door in the middle of the night.” Id. at 238, 239 n 6 (declining to “decide precisely what time the implied license to approach begins and ends,” and noting that the instant case was clearly outside of the implied license because “there were no circumstances that would lead a reasonable member of the public to believe that the occupants of the respective homes welcomed visitors at 4:00 a.m. or 5:30 a.m.”). “[B]ecause the officers trespassed while seeking information, they performed illegal searches.” Id. at 244 (remanding to the circuit court “to determine whether the defendants’ consent to search was attenuated from the officers’ illegal search”).
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.” People v Cartwright, 454 Mich 550, 558 (1997). Additionally, a police officer 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 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).2
“The flight of a suspected misdemeanant does not always justify a warrantless entry into a home. An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency. On many occasions, the officer will have good reason to enter–to prevent imminent harms of violence, destruction of evidence, or escape from the home. But when the officer has time to get a warrant, he must do so–even though the misdemeanant fled.” Lange v California, 594 US ___, ___ (2021).
With respect to abandoned or vacant structures, several factors must be evaluated on a case-by-case basis to determine whether police officers may enter a dwelling without securing a warrant:
“(1) the outward appearance, (2) the overall condition, (3) the state of the vegetation on the premises, (4) barriers erected and securely fastened in all openings, (5) indications that the home is not being independently serviced with gas or electricity, (6) the lack of appliances, furniture, or other furnishings typically found in a dwelling house, (7) the length of time that it takes for temporary barriers to be replaced with functional doors and windows, (8) the history surrounding the premises and prior use, and (9) complaints of illicit activity occurring in the structure.” People v Taylor, 253 Mich App 399, 407 (2002).
e.Detention Incident to Execution of Search Warrant
Officers executing a valid search warrant may “detain the occupants of the premises while a proper search is conducted.” Michigan v Summers, 452 US 692, 704-705 (1981) (noting that “[i]f the evidence that a citizen’s residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen’s privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his [or her] home[,]” and concluding that “[b]ecause it was lawful to require [the] respondent to re-enter and to remain in the house until evidence establishing probable cause to arrest him was found, his arrest and the search incident thereto were constitutionally permissible[]”). However, “[t]he categorical authority to detain [an occupant] incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched[,]” and “the decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place.” Bailey v United States, 568 US 186, 197, 201-202 (2013). Summers, 452 US 692, does not justify “the detention of occupants beyond the immediate vicinity of the premises covered by a search warrant.” Bailey, 568 US at 192.
Detention of a person in the immediate vicinity of premises on which a search warrant is being executed “does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers[;] . . . [rather, t]he rule announced in Summers[, 452 US 692,] allows detention incident to the execution of a search warrant ‘because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial.’” Bailey, 568 US at 193 (quoting Muehler v Mena, 544 US 93, 98 (2005), and holding that where the defendant was observed leaving a residence as a search unit prepared to execute a search warrant there, Summers, 452 US 692, did not permit officers to stop and detain the defendant approximately one mile away “from the premises to be searched when the only justification for the detention was to ensure the safety and efficacy of the search[;]” in such a situation, “[i]f officers elect to defer [a] detention until the suspect or departing occupant leaves the immediate vicinity[ of the premises to be searched], the lawfulness of detention is controlled by other standards, including[] . . . a brief stop for questioning based on reasonable suspicion under Terry [v Ohio, 392 US 1 (1968),] or an arrest based on probable cause”).
B.Automobile Searches/Seizures
1.Generally
“A traffic stop for a suspected violation of law is a ‘seizure’ of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment.” Heien v North Carolina, 574 US 54, 60 (2014) (citation omitted). “‘A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road.’” People v Anthony, 327 Mich App 24, 37 (2019), quoting Brendlin v California, 551 US 249, 257 (2007).
“[A] vehicle is an ‘effect’ as that term is used in the [Fourth] Amendment. United States v Jones, 565 US 400, 402, 404 (2012) (citing United States v Chadwick, 433 US 1, 12 (1977), and holding that “the Government’s installation of a [Global-Positioning-System (GPS)] device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’”).
2.Reasonableness of Traffic Stop
“A traffic stop for a suspected violation of law is a ‘seizure’ of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment.” Heien, 574 US at 60 (citation omitted). Generally, an officer’s decision to stop an automobile is reasonable when there is probable cause to believe that the driver violated a traffic law. Whren v United States, 517 US 806, 810 (1996). The constitutional reasonableness of traffic stops does not depend on the actual motivations of the police officers involved. Id. at 813. A traffic stop is permissible when an officer has “‘reasonable suspicion,’” meaning that the officer has “‘a particularized and objective basis for suspecting the particular person stopped’ of breaking the law.” Heien, 574 US at 60, quoting Navarette v California, 572 US 393, 396 (2014). “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Heien, 574 US at 60, quoting Riley v California, 573 US 373, 381 (2014) (quotation marks omitted).
“To be reasonable is not to be perfect,” and “searches and seizures based on mistakes of fact can be reasonable” if the mistake of fact itself is reasonable. Heien, 574 US at 60-61 (citations omitted). Further, “reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition” so long as the mistake of law is “objectively reasonable.” Id. at 57, 60, 66, 68 (holding that because it was “objectively reasonable for an officer . . . to think that [the petitioner’s] faulty right brake light was a violation of [state] law, . . . there was reasonable suspicion justifying [a traffic] stop,” even though “a court later determined that a single working brake light was all the law required”).
A “misunderstanding of an unambiguous statute is not an objectively reasonable mistake of law.” People v Lucynski, 509 Mich 618, 652 (2022). “[O]bjectively reasonable mistakes of law occur in exceedingly rare circumstances in which an officer must interpret an ambiguous statute.” Id. at 652. A police officer did not have a “legally sufficient suspicion of criminal activity” at the time of the seizure where “[t]he stated justification for [the officer's] encounter with defendant was an alleged violation of [the impeding traffic] statute,” but that statute “is only violated if the normal flow of traffic is actually disrupted,” and “there [was] no evidence in the record to sustain the accusation that defendant violated [the statute].” Id. at 626, 646, 647, 650. “[T]he officer's mistaken reading of this unambiguous statute was not objectively reasonable, and thus no reasonable mistake of law occurred.” Id. at 626-627. In sum, the Michigan Supreme Court held that there was no “lawful justification for the seizure, and the district court did not err by holding that the seizure violated defendant's constitutional rights.” Id. at 657.
“Nothing in [the United States Supreme Court’s] Fourth Amendment precedent supports the notion that, in determining whether reasonable suspicion exists, an officer can draw inferences based on knowledge gained only through law enforcement training and experience.” Kansas v Glover, 589 US ___, ___ (2020). “The inference that the driver of a car is its registered owner does not require any specialized training” and “is a reasonable inference made by ordinary people on a daily basis.” Accordingly, a traffic stop conducted “after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license,” is reasonable “when the officer lacks information negating an inference that the owner is the driver of the vehicle[.]” Id. at ___. “The fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate the reasonableness of [the officer’s] inference.” Id. at ___. However, “the presence of additional facts might dispel reasonable suspicion,” such as “if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not raise a suspicion that the particular individual being stopped is engaged in wrongdoing.” Id. at ___ (quotation marks and citation omitted). In Glover, the officer “drew the commonsense inference that [defendant] was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop,” where he “knew that the registered owner of the truck had a revoked license and that the model of the truck matched the observed vehicle,” and he “possessed no exculpatory information[.]” Id. at ___, ___.
“[F]ewer foundational facts are necessary to justify an investigative stop of a moving vehicle based on a citizen’s tip about erratic driving.” People v Barbarich, 291 Mich App 468, 479 (2011). “[W]hile the quantity of the tip’s information must be sufficient to identify the vehicle and to support an inference of a traffic violation, less is required with regard to a tip’s reliability; as to the latter, it will suffice if law enforcement corroborates the tip’s innocent details.” Id. at 479-480.
“[A] reliable tip alleging [certain] dangerous [driving] behaviors . . . generally [will] justify a traffic stop on suspicion of drunk driving.” Navarette v California, 572 US 393, 402 (2014) (such behaviors include weaving, crossing the center line and nearly causing head-on collisions, and driving in the median) (citations omitted). “Under the totality of the circumstances, . . . [a 911 call bore] indicia of reliability . . . sufficient to provide [an] officer with reasonable suspicion that the driver of [a] reported vehicle had run another vehicle off the road[, making] it reasonable under the circumstances for the officer to execute a traffic stop” on the basis of suspected intoxication. Navarette, 572 US at 395, 404. In Navarette, 572 US at 395, “[a]fter a 911 caller reported that a [truck] had run her off the road, a police officer located the vehicle she identified during the call and executed a traffic stop.” Turning first to “[t]he initial question . . . whether the 911 call was sufficiently reliable,” the Court held that the caller’s apparent “eyewitness knowledge of the alleged dangerous driving” based on her specific description of the truck and license plate number, together with the facts that she used the 911 system and that the tip was “contemporaneous with the observation of criminal activity,” provided “adequate indicia of reliability for the officer to credit the caller’s account” and to “[proceed] from the premise that the truck had, in fact, caused the caller’s car to be dangerously diverted from the highway.” Id. at 400. Furthermore, the caller’s “report of being run off the roadway created reasonable suspicion of an ongoing crime such as drunk driving” because the reported conduct, unlike “a minor traffic infraction . . . [or] a conclusory allegation of drunk or reckless driving, . . . [bore] too great a resemblance to paradigmatic manifestations of drunk driving to be dismissed as an isolated example of recklessness.” Id. at 401, 403 (quoting United States v Sokolow, 490 US 1, 11 (1989), and further concluding that “the absence of additional suspicious conduct, [during the five-minute period] after the vehicle was first spotted by [the] officer, [did not] dispel the reasonable suspicion of drunk driving;” rather, “[o]nce reasonable suspicion of drunk driving arises, ‘[t]he reasonableness of the officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques’”).
“[A] computer check is a routine and generally accepted practice by the police during a traffic stop.” People v Simmons, 316 Mich App 322, 327-328 (2016), citing People v Davis, 250 Mich App 357, 366 (2002). “[A] review of Michigan cases demonstrates a recognition that the running of [Law Enforcement Information Network (LEIN)] checks of vehicle drivers is a routine and accepted practice by the police in this state.” Davis (Marcus), 250 Mich App at 366-368 (holding that the amount of time it took for an officer to run a LEIN check during a traffic stop was “a minimal invasion in light of the substantial governmental interest in arresting citizens wanted on outstanding warrants” and did not unreasonably extend the stop) (citations omitted); see also Simmons (Michael), 316 Mich App at 328.
“[B]ecause driving without insurance is an ‘on-going’ infraction, there is less of a concern for ‘staleness’ than there would be for a crime that has already occurred,” and “[t]o justify a stop for Fourth Amendment purposes, police must only have a reasonable suspicion, not probable cause or some other heightened burden, that a traffic violation has occurred or is occurring.” People v Mazzie, 326 Mich App 279, 296 (2018). Accordingly, “the twice-a-month updating of the insurance information [provided by the Secretary of State to the police] was . . . frequent enough to provide officers with reasonable suspicion that a motor vehicle code violation existed”; “the at most 16-day lapse in up-to-date information made available through the LEIN did not render the information so late or unreliable that it could not provide the officers with reasonable suspicion that the vehicle was uninsured,” and “[t]he officers’ unrefuted testimony was that the insurance information was extraordinarily accurate, and even without that testimony, nothing in the record suggests that the information was not sufficiently reliable to provide reasonable suspicion that the driver was operating the vehicle contrary to MCL 500.3101.” Mazzie, 326 Mich App at 291, 297 (reversing the trial court’s order suppressing the evidence, and holding that “in light of the LEIN information and [the police officer’s] knowledge, experience, and training,” the police officer “had at least a reasonable suspicion that the motorist was operating his vehicle without insurance and, therefore, the stop and detention to check for valid insurance was reasonable under the Fourth Amendment”).
3.Detention (Seizure) of Automobile Occupants and Length of Stop
As long as the initial stop was lawful and police conduct did not prolong the seizure beyond the time reasonably required to process the traffic stop information, an individual’s constitutional protection from unreasonable searches and seizures is not implicated. Illinois v Caballes, 543 US 405, 407 (2005). However, “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.” Rodriguez v United States, 575 US 348, 350 (2015). “[A]lthough police officers ‘may conduct certain unrelated checks during an otherwise lawful traffic stop,’ they ‘may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.’” People v Kavanaugh, 320 Mich App 293, 300-301 (2017), quoting Rodriguez, 575 US at 355.
“[A] police officer is free to question a lawfully detained person about the presence of weapons in his or her vehicle because such an inquiry relates to the officer’s ability to conduct the traffic stop in a safe manner.” People v Campbell (Jason), 329 Mich App 185, 199 (2019) (“[t]he concern for officer safety in an inherently dangerous situation provides a compelling reason to permit police officers to take preventative action designed to ensure they are able to complete the traffic stop safely”). The officer’s initial “question concerning the presence of weapons in the vehicle was designed to ensure that he could complete the traffic stop safely and was, therefore, related to the purpose of the stop.” Id. at 200. The officer’s subsequent question “regarding whether [defendant] possessed a CPL was not strictly related to the purpose of the stop[.]” However, because “the question itself did not unreasonably prolong the duration of the stop, . . . it did not render the otherwise lawful stop unconstitutional.” Id. “[I]n light of [defendant’s] early admissions [that he was carrying a firearm and did not possess a CPL], there was probable cause to believe that [he] had committed the felony of carrying a concealed weapon, and the [officer] could lawfully extend the stop to investigate the matter.” Id.
“Detaining [the] defendant [following a traffic stop] to wait for a drug sniffing dog and its handler to arrive and perform their work was an unconstitutional seizure of his person” under Rodriguez; “the traffic stop was completed when the officer determined that the vehicle was owned by [the] defendant, gave him a warning about the traffic violations, and told him there would not be a ticket issued.” Kavanaugh, 320 Mich App at 299-300, 308-309. “[T]he relevant testimony as well as the complete video/audio recording of the encounter from [the officer’s] first observation of [the] defendant’s car through the arrest” demonstrated that the officer “did not have a reasonable suspicion of any criminal activity sufficient to justify his extension of the traffic stop to allow for a dog sniff.” Id. at 302, 302 n 8 (noting that “whenever practicable, such videotapes should be provided to the court, the court should review them, and they should be made part of the record on appeal”).
“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.” People v Williams (John Lavell), 472 Mich 308, 315 (2005); see also Simmons (Michael), 316 Mich App at 326. “The determination whether a traffic stop is reasonable must necessarily take into account the evolving circumstances with which the officer is faced[,]” and “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.” Williams (John Lavell), 472 Mich at 315.
Furthermore, where the initial traffic stop is justified and the officer’s questions do not exceed the scope of the stop and do not unreasonably extend the time of the detention, a defendant’s consent to search a vehicle is valid. Williams (John Lavell), 472 Mich at 310. Under those circumstances, no Fourth Amendment violation occurs and no inquiry is needed as to whether the officer effecting the stop “had an independent, reasonable, and articulable suspicion that defendant was involved with narcotics.” Id. at 318.
“A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.” Arizona v Johnson, 555 US 323, 333 (2009). “An officer’s inquiries into matters unrelated to the justification for the traffic stop[] . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” Id. at 333-334 (holding that a police officer “was not constitutionally required to give [the defendant, who was a backseat passenger,] an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her”).
See also People v Corr, 287 Mich App 499, 507 (2010), in which the Court of Appeals concluded that “it was reasonable, for the officer[s’] safety as well as for defendant[-passenger]’s safety, for the officers to command defendant to remain in the vehicle while they completed their noninvestigatory duties at the traffic stop, particularly considering that [the] defendant was intoxicated and aggressive toward the officers during the stop, bystanders had arrived on the scene, and the weather conditions were dangerous.” The Court noted that under the circumstances, the officers needed to maintain control over the scene even though the driver of the car—the defendant’s son—had been arrested and secured in the police car. Id. at 507, citing Johnson, 555 US 323.
If there is probable cause to believe that contraband is present in the vehicle, an occupant may be temporarily detained during the search of the vehicle. Summers, 452 US at 702-703.
4.Police Conduct not Constituting a Seizure
A police officer’s “decision to drive down [a] street [does] not implicate the Fourth Amendment.” People v Anthony, 327 Mich App 24, 35 (2019) (doing so is “the consensual approach of officers to an individual in a public place,” and “[a]n officer does not need any level of justification to approach an individual on a public street”). Similarly, pulling along side a parked vehicle, without more, does not constitute a “traffic stop” because the vehicle is not moving. Id. at 37 (finding that the characterization of such action as a “traffic stop” precludes “the possibility that the encounter was consensual as every traffic stop constitutes a ‘seizure’”). Notwithstanding, a seizure does occur if the police vehicle is positioned in a manner that blocks the parked vehicle’s egress. Id. at 38.
5.Warrantless Search (Automobile Exception) Generally
A warrantless search of a vehicle is permissible under certain circumstances if the search is based on facts that would have justified the issuance of a warrant; that is, if there is probable cause to believe that the vehicle contains evidence of a crime. United States v Ross, 456 US 798, 799 (1982); People v Levine (Brian), 461 Mich 172, 178-179 (1999). Courts have justified the automobile exception to the warrant requirement in two ways. Some courts have found that a defendant has a lower expectation of privacy with regard to an automobile than he or she has in a dwelling. See Chambers v Maroney, 399 US 42, 48 (1970). Other courts have used the justification that the mobility of an automobile requires that the police have the flexibility to search the vehicle without a warrant. See Carroll v United States, 267 US 132, 153 (1925). However, “the automobile exception does not permit an officer without a warrant to enter a home or its curtilage[3] in order to search a vehicle therein.” Collins v Virginia, 584 US ___, ___, ___ (2018) (“the scope of the automobile exception extends no further than the automobile itself”).
6.Probable Cause to Search an Automobile Generally
The police may search a vehicle without a warrant if they have probable cause to believe that the vehicle contains contraband. Pennsylvania v Labron, 518 US 938, 940 (1996). When police have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle even after it has been impounded and is in police custody. People v Carter, 250 Mich App 510, 516 (2002).
“Passage of the [Michigan Regulation and Taxation of Marihuana Act, MCL 333.27951 et seq., (MRTMA)] decriminalized possession and use of marijuana,” “superseding otherwise-binding decisions that the smell of marijuana, without more, provides probable cause to search for marijuana. People v Armstrong, ___ Mich App ___, ___ (2022) (concluding that People v Kazmierczak, 461 Mich 411 (2000), no longer governs analysis). In Armstrong, the Court of Appeals held that “the smell of marijuana may be a factor, but not a stand-alone one, in determining whether the totality of the circumstances established probable cause to permit a police officer to conduct a warrantless search of a vehicle or to seize a driver or passenger found in the vehicle.” Id. at ___ (adopting “middle-ground approach as the most compatible with Michigan law in the wake of the passage of the MRTMA”; quotation marks and citation omitted).
To “determine if the ‘alert’ of a drug-detection dog during a traffic stop provides probable cause to search a vehicle,” “[t]he court should allow the parties to make their best case, consistent with the usual rules of criminal procedure, . . . [a]nd . . . should then evaluate the proffered evidence to decide what all the circumstances demonstrate.” Florida v Harris, 568 US 237, 240, 247-248 (2013). “If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.” Id. at 248.4 “If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence.” Id. “The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” Id. “A sniff is up to snuff when it meets that test.” Id.
7.Warrantless Search of Passengers
A passenger in a vehicle stopped by the police is seized for purposes of the Fourth Amendment and may properly challenge the constitutionality of the traffic stop. Brendlin v California, 551 US 249, 251 (2007). The passenger of a vehicle does not “lack[] standing to challenge the subsequent search of [a] vehicle” merely “because the stop of the vehicle was legal.” People v Mead (Larry), 503 Mich 205, 214 (2019) (quotation marks, alteration, and citation omitted).
Police officers “may order out of a vehicle both the driver . . . and any passengers; perform a ‘patdown’ of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous; conduct a ‘Terry5 patdown’ of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, including any containers therein, pursuant to a custodial arrest.” Knowles v Iowa, 525 US 113, 117-118 (1998) (citations omitted). The search for a weapon is limited to the area where the weapon may be placed or hidden. Michigan v Long, 463 US 1032, 1049 (1983). “To justify a patdown of the driver or a passenger during a traffic stop, . . . the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.” Arizona v Johnson, 555 US 323, 327 (2009).
Generally, “a passenger will not have a legitimate expectation of privacy in someone else’s car.” Mead (Larry), 503 Mich at 213. However, the Mead Court concluded that defendant passenger could challenge the warrantless search of his backpack because “although the defendant had no . . . legitimate expectation of privacy in the interior of [the] vehicle, he had a legitimate expectation of privacy in his backpack,” that was located in the vehicle and which he “asserted a clear possessory interest in . . . by clutching it in his lap” prior to being ordered to exit the vehicle, and that expectation of privacy is one “that society is willing to recognize as reasonable.” Id. at 214, 215.
Additionally, the driver’s consent to search defendant’s backpack was not sufficient to support a warrantless search because “[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.” Mead (Larry), 503 Mich at 214, 219. 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.” Id. at 216 n 3 (2019) (citation omitted).
The police may properly search a passenger’s personal belongings inside an automobile when they have probable cause to believe the belongings contain contraband. Wyoming v Houghton, 526 US 295, 302 (1999).
8.Warrantless Search of a Container Located in an Automobile
“If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” United States v Ross, 456 US 798, 825 (1982). That is, “[t]he police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” California v Acevedo, 500 US 565, 580 (1991). See also People v Kazmierczak, 461 Mich 411, 422 (2000) (noting that if probable cause exists to believe that a vehicle contains contraband, the ability to conduct a warrantless search extends to closed containers that might conceal the object of the search).
Further, the “police may open and search any container placed or found in an automobile, as long as they have the requisite probable cause with regard to such a container, even if such probable cause focuses specifically on the container and arises before the container is placed in the automobile.” People v Bullock, 440 Mich 15, 24 (1992). Thus, all containers large enough to hold the object of the search may be opened without a warrant during an automobile search. United States v Johns, 469 US 478, 484 (1985). Additionally, if the container may be searched at the scene, it may also be seized and searched without a warrant shortly thereafter, at the police station. Id. at 485.
Absent probable cause, the driver’s consent to search defendant-passenger’s backpack was not sufficient to support a warrantless search because “[a]n objectively reasonable police officer would not have believed that [the driver] had actual or apparent authority over” defendant’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.” People v Mead (Larry), 503 Mich 205, 214, 219 (2019). 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.” Id. at 216, n 3 (2019) (citation omitted).
9.Warrantless Search of an Automobile Incident to Arrest
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 (Larry), 503 Mich 205, 216, n 3 (2019) (citation omitted).
“Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Arizona v Gant, 556 US 332, 351 (2009). “When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” Id. In Gant, 556 US at 335-336, the defendant was arrested for driving with a suspended license. After the police handcuffed the defendant and locked him in the back of a patrol car, they searched his car and found drugs in a jacket on the backseat. The United States Supreme Court held that the search was improper because Belton, 453 US 454, “does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.” Gant, 556 US at 335. Further, “circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” Id. “Because [the] police could not reasonably have believed either that [the defendant] could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search . . . was unreasonable.” Id. at 344.
Where an officer received information that the defendant was driving erratically, was confused, and was taking OxyContin for pain following surgery, “it was reasonable to believe that [his] vehicle might contain evidence of . . . ‘the offense of arrest’” within the meaning of Gant, 556 US at 351, and the officer therefore lawfully searched the defendant’s vehicle for evidence of narcotics or other drugs after arresting him for drunk driving and placing him in a police car. People v Tavernier, 295 Mich App 582, 586-587 (2012).
See Section 11.9(B) for discussion of the good faith doctrine as applied to the exclusionary rule.
10.Rental Vehicles
“[A]s a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.” Byrd v United States, 584 US ___, ___ (2018). Stated another way, “the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.” Id. at ___ (reversing the lower courts’ denial of the petitioner’s motion to suppress evidence as the fruit of an unlawful search, i.e., body armor and a large quantity of drugs, found in the trunk of a vehicle rented by another individual, and “leav[ing] for remand two of the Government’s arguments: that one who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event”).
Searches that take place in schools may be properly conducted based on a level of suspicion less than probable cause. Courts have justified searches of students based on reasonable suspicion. The child’s interest in privacy is balanced against the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. New Jersey v TLO, 469 US 325, 341-343 (1985).
“[A] school search ‘will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction[.]’” Safford Unified School Dist #1 v Redding, 557 US 364, 370 (2009), quoting TLO, 469 US at 342. In Safford, 557 US at 368, “a 13-year-old student’s Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school . . . [b]ecause there were no reasons to suspect the drugs presented a danger or were concealed in her underwear[.]” That is, “the content of the suspicion failed to match the degree of intrusion.” Id. at 375.
In Hudson v Palmer, 468 US 517, 525-526 (1984), the United States Supreme Court held that Fourth Amendment protections do not apply to a prison cell. The correctional facility’s interest in security outweighs a prisoner’s already lowered expectation of privacy. People v Herndon, 246 Mich App 371, 397 (2001).
The Fourth Amendment is not violated when correctional officials require a detainee, “regardless of the circumstances of the arrest, the suspected offense, or the detainee’s behavior, demeanor, or criminal history[,]” to undergo a visual strip search before being admitted to a jail’s general population. Florence v Board of Chosen Freeholders of County of Burlington, 566 US 318, 322, 324, 339 (2012).
The collection and analysis of an arrestee’s DNA according to Combined DNA Index System (CODIS) procedures “[a]s part of a routine booking procedure for serious offenses[]” did not violate the Fourth Amendment where the DNA sample was used to identify the arrestee as the perpetrator of an earlier unsolved rape. Maryland v King, 569 US 435, 439, 465-466 (2013). “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” Id. at 461, 463, 465-466 (noting that “a detainee has a reduced expectation of privacy[]” and that “[b]y comparison to [the] substantial government interest [in identifying arrestees] and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal one[]”).
E.The Use of Roadblocks/Checkpoints
The United States Supreme Court has held that the use of roadblocks to enforce regulations concerning the use of vehicles, including the use of checkpoints to check driver’s licenses and vehicle registrations, to make safety inspections of vehicles, to check sobriety, or to inspect cargo trucks or similar containers is permissible. Michigan Dep’t of State Police v Sitz, 496 US 444, 455 (1990). However, the Michigan Supreme Court has held that the Michigan Constitution provides greater protection against warrantless seizures than does the federal constitution, and that the use of sobriety checkpoints violates Const 1963, art 1, § 11. Sitz v Dep’t of State Police, 443 Mich 744, 746-747 (1993).
1 See Section 11.6(B)(4) for more information on the automobile exception.
2 See Section 11.6(A) for discussion of exigent circumstances.
3 See Section 11.7(A) for more information on what constitutes curtilage.
4 “[E]vidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to . . . presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search.” Harris, 568 US at 246-247 (2013).
5 Terry v Ohio, 392 US 1 (1968).