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People v. Barbee

Court of Appeals of Michigan

June 26, 2018

KEENAN BARBEE, Defendant-Appellant.

          Wayne Circuit Court LC No. 16-006428-01-FH

          Before: Murphy, P.J., and Jansen and Ronayne Krause, JJ.

          Murphy, P.J.

         In a bench trial, defendant was convicted of felon in possession of a firearm, MCL 750.224f, felon in possession of ammunition, MCL 750.224f, possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and carrying a concealed weapon (CCW), MCL 750.227. He was sentenced to one to five years' imprisonment for each of the convictions, except for the felony-firearm conviction, for which he was sentenced to two years' imprisonment. We affirm.

         Shortly after midnight on July 8, 2016, police officers on routine patrol in a marked cruiser observed a parked car with its engine running and headlights on, and the officers pulled alongside the driver's side of the vehicle. The officers shined their flashlights at the car, observing that a female was behind the wheel and that defendant was sitting in the front passenger seat. There was police testimony that defendant looked shocked and leaned back in his seat, appearing to pull something out from his waist area with his right hand, followed by defendant leaning forward as if he were attempting to place something on the floor under his seat. The officers found the movements suspicious, leading the police to believe that defendant may be armed. When one of the officers exited the police cruiser, defendant immediately jumped out of the passenger seat and car, holding a stack of money. Upon defendant being detained, an officer went to the passenger side of the car, shined his flashlight inside the vehicle at the floorboard, and observed the back of a gun handle partly under the seat, giving rise to an inference, considering defendant's movements, that he had put the firearm in that spot in a frantic attempt to conceal it under the seat. The gun was seized, and defendant was arrested. Defendant testified that he had no knowledge that the gun was in the car, that he had never possessed the weapon on his person, that he did not see the gun in the vehicle, and that he did not own the firearm.

         At the bench trial, defense counsel attempted to argue that evidence of the gun should be suppressed, considering that the officers lacked probable cause to stop and search the vehicle; however, the trial court refused to consider the argument, as counsel had failed to challenge the search and seizure in a pretrial motion. On appeal, defendant argues that defense counsel was ineffective for not filing a pretrial motion to suppress the firearm and that there was insufficient evidence to support the convictions. We disagree.

         With respect to the claim of ineffective assistance of counsel, defendant argues that the car was lawfully parked in front of his home, that he and the female driver were quietly saying goodnight, that they had an expectation of privacy, that there was no indication by the officers that the neighborhood was rampant with criminal activity, and that "the police did not provide a single reason for coming up on defendant's car so clandestinely and shining their flashlights into it[.]" Defendant contends that the plain view doctrine could not be invoked, because the doctrine requires that an officer be in a place where he or she had a right to be, and the police in the instant case had no right to pull up within a couple feet of the car and then shine their flashlights inside. Defendant maintains that the officers needed to have some articulable suspicion of criminal activity being afoot to proceed as they did, and there was none. Defendant appears to accept that a police officer may generally, but not always, utilize a flashlight, but only if the officer was rightfully and lawfully positioned when doing so.

         Defendant makes clear that his argument is not that his movements, i.e., leaning back, appearing to pull something from his waist area, and then leaning forward as if to put something under the seat, did not give rise to probable cause or reasonable suspicion to temporarily detain him, nor does he appear to contend that it was improper to shine the flashlight on the passenger side floorboard where the gun was found. Rather, the entire premise of defendant's argument is that it was unconstitutional for the police to be in the position from which they initially saw defendant's movements; therefore, counsel was ineffective for not filing a pretrial motion to suppress the gun.

         Defendant's argument is couched, at least in part, in terms of the plain view doctrine, and in People v Champion, 452 Mich. 92, 101; 549 N.W.2d 849 (1996), the Supreme Court observed:

The plain view doctrine allows police officers to seize, without a warrant, items in plain view if the officers are lawfully in a position from which they view the item, and if the item's incriminating character is immediately apparent. A fundamental characteristic of the doctrine is that it is exclusively a seizure rationale. No searching, no matter how minimal, may be done under the auspices of the plain view doctrine. [Citations omitted.]

         As can be gleaned from this passage, the plain view doctrine is not technically applicable to the specific argument being made by defendant. Defendant's argument is more akin to cases involving whether the police can gather incriminating information from a particular vantage point to then justify a search or search warrant based on the information, or whether police conduct at that vantage point in gathering the information is itself a search implicating Fourth Amendment protections. We are addressing an argument that falls under what has been coined the "open view doctrine." In State v Clark, 124 Idaho 308, 311-313; 859 P.2d 344 (1993), the Idaho Court of Appeals gave the following helpful explanation:

Both parties here urge application of a "plain view" analysis. . . . However, we conclude that the plain view doctrine is not the proper framework for analysis of [the officer's] . . . observation through the [mobile home's] corner window, for the plain view doctrine addresses the validity of warrantless seizures, not searches.
[The] United States Supreme Court [has] clarified that the plain view doctrine is a constitutionally recognized justification only for warrantless seizures, not warrantless searches[.]
[T]he plain view doctrine refers only to the circumstances where an officer has a prior justification for an intrusion into a constitutionally protected area or activity and in the course of that intrusion spots and seizes incriminating evidence. . . . Accordingly, it is warrantless seizures of readily visible items, not warrantless s ...

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