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People v. Kavanaugh

Court of Appeals of Michigan

July 6, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
KEVIN PATRICK KAVANAUGH, Defendant-Appellant.

         Berrien Circuit Court LC No. 2014-004247-FH

          Before Stephens, P.J., and Shapiro and Gadola, JJ.

          PER CURIAM.

         Defendant was convicted of possession with the intent to deliver between 5 and 45 kilograms of marijuana, MCL 333.7401(2)(d)(ii). The marijuana was found in his car's trunk during a search that followed from a police dog alerting to the marijuana's smell. Defendant argues that the trial court erred in finding that the search did not violate his rights under the Fourth Amendment. He also argues that there was a Brady violation regarding a photo and videotape that was not timely produced. For the reasons stated in this opinion, we reverse the trial court's ruling on the Fourth Amendment claim and remand for further proceedings. Given this ruling, the Brady issue is moot.

         FACTS

         Defendant was driving on I-196 with a female passenger when he was pulled over by Michigan State Police Trooper Michael Daniels. Daniels testified that he had observed defendant engage in two traffic violations: an improperly affixed license plate[1] and a failure to signal a lane change[2] onto an exit ramp.

         Daniels asked defendant for the car's registration. Defendant responded that he had just recently purchased the car and that he did not yet have a registration. Daniels then told defendant to exit the car and to follow him. The two walked back to the police cruiser leaving the passenger in defendant's car. Daniels told defendant to sit in the front passenger seat of the police car. Daniels got into the driver's seat and said he was going to run some computer checks. While running the computer checks on defendant's license and ownership of the vehicle, Daniels asked defendant several questions and learned that he and his female passenger had been in Grand Rapids for three days. Daniels then asked what defendant and his female companion were doing in the Grand Rapids area since they were from Florida. After completing the computer checks, which confirmed defendant's ownership of the car and revealed no outstanding warrants, Daniels told defendant to stay in the cruiser and walked back to defendant's car where he spoke with defendant's female companion.

         After doing so, Daniels returned to the cruiser and told defendant that he was going to give him a warning rather than a ticket for the traffic violations. He then asked defendant for consent to search the car. When defendant declined to consent, Daniels informed him that he was going to radio a request for a dog to do a contraband sniff of his vehicle and that defendant and his companion would have to remain until the dog and its handler arrived and the process completed. After about 15 minutes, [3] the dog and his officer arrived. The dog alerted at the car's trunk. The officers opened the trunk and found the marijuana. The entire course of events, from Daniels's initial observation of defendant's vehicle to defendant's arrest, was captured on video camera.

         Defendant filed a pre-trial motion to suppress the evidence found in the trunk. After an evidentiary hearing, the trial court denied the motion. For purposes of the hearing, the court did not watch the videotape, and though defense counsel noted that the tape was available if the court wished to watch it, neither party specifically requested that it do so. Defendant raised the issue again at trial at which time the trial court watched the video and confirmed its prior ruling. Like the trial court, we have watched and listened to the recording. Having done so, we need not rely on the trial court's conclusions as to what the videotape contains. City of East Grand Rapids v Vanderhart__, Mich. App__, ___;__ N.W.2d__ (2017) (Docket No. 329259), slip op at 4 (Opinion by Swartzle, J.) (concluding that because an appellate court is able to review a video as easily as the trial court, the trial court's factual findings regarding that video are entitled to less deference).

         FOURTH AMENDMENT ISSUES

         Defendant raises two arguments grounded in the Fourth Amendment. First, he argues that Daniels lacked grounds to pull him over for a traffic stop. Second, he argues that Daniels lacked lawful grounds to detain him beyond the conclusion of the traffic stop. We disagree with defendant's first argument but agree with his second.

         I. THE TRAFFIC STOP

         Trooper Daniels testified at the pre-trial suppression hearing and at trial. He stated that he stopped defendant because he saw what he determined to be two traffic violations. First, Daniels concluded that defendant was in violation of MCL 257.225(2) because the vehicle's license plate was flapping in the wind and unreadable while the car was moving. Second, he concluded that when getting on an exit ramp defendant violated MCL 257.648(1) by making the lane change without signaling. People v Hrlic, 277 Mich.App. 260, 263-266; 774 N.W.2d 221 (2007).

         Defendant argued below, and again on appeal, that Daniels's stated explanations were mere pretexts for a stop that lacked a constitutional basis.[4] However, the United States Supreme Court has held that the existence of probable cause that a driver has violated a traffic law constitutionally justifies a brief detention for purposes of addressing that violation even if the officer's subjective intent for stopping the car is based on other factors. "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v United States, 517 U.S. 806, ...


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