Circuit Court LC No. 2015-255591-FH
Before: Stephens, P.J., and K. F. Kelly and Murray, JJ.
prosecutor appeals by right an order dismissing a charge of
possession of a controlled substance (codeine), a violation
of MCL 333.7403(2)(b)(ii). The dismissal was based on the
circuit court's earlier opinion and order that granted
defendant's motion to suppress evidence. Finding no
errors warranting reversal, we affirm.
March 14, 2015, Michigan State Police Trooper Everett Morris
observed defendant traveling 83 miles per hour in a 70 mile
per hour zone. Morris decided to conduct a traffic stop.
Defendant was the lone occupant of the car. Morris testified
that he "noticed several pill bottles along with several
like whippet canisters. They would be nitrous oxide . . .[o]n
the rear floorboard." Morris observed about a dozen of
the containers. He explained: "They caught my attention
because I've dealt with them before where people use them
and they huff 'em for a temporary high." Morris
confronted defendant about the canisters:
A. We discussed the huffing of the whippets or
nitrous oxide that were in the back of the seat. I asked him,
you know, when the last time it was that he used it.
Q. And what did he say?
A. He stated four days ago.
Q. Okay. And what, if anything, did you say?
A. I informed him that that stuff will kill your
Q. And did he respond to your statement?
A. I believe he said I know.
unsuccessfully sought defendant's consent to search the
car. He nevertheless ordered defendant out of the car and
searched it. In addition to the nitrous oxide whippets,
Morris found a canister that is used to huff with. Morris
also found an empty bottle of codeine syrup with the name
removed, as well as pill bottles with the names removed.
Morris found six pills located inside a jacket belonging to
defendant, which were determined to be codeine. Morris was
not concerned that defendant was actually intoxicated at the
time and he did not confiscate the whippets, canisters or the
empty pill bottles.
circuit court granted defendant's motion to suppress the
evidence but did not specifically grant or deny
defendant's motion to dismiss for lack of untainted
evidence. The parties subsequently appeared before the court
on January 21, 2016:
MR. MEIZLISH [prosecutor]: Your Honor, as I imagine you
recall, you entered an order suppressing the evidence in this
matter. . . . Both sides agreed that if - you should - that
you could set the matter for a trial right now.
THE COURT: Okay. So, everybody waives their right to a trial?
MS. MOISE [defense counsel]: Yes.
MR. MEIZLISH: We're just setting it for trial right now.
THE COURT: We'll set it right now.
MR. MEIZLISH: All right. Your Honor, we are unable to proceed