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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
V

UNPUBLISHED February 1, 2007

DAVID RICHARD DREW, Defendant-Appellee.

No. 266104 Oakland Circuit Court LC No. 05-202999-FH

Before: Borrello, P.J., and Jansen and Cooper, JJ. PER CURIAM. Plaintiff appeals as of right from the circuit court's order quashing the information and dismissing the case. We reverse and remand. This case is being decided without oral argument in accordance with MCR 7.214(E). While on duty a little after 2:00 a.m. on March 11, 2005, a police officer observed defendant driving a red Firebird. The officer recognized defendant because he had arrested him in December 2003 for drunk driving. At that time, defendant was driving the same red Firebird. According to the officer, when he saw defendant driving in March 2005, he knew that defendant did not have a valid driver's license because when he arrested defendant in 2003, defendant had refused to submit to a Breathalyzer test and his driver's license was therefore suspended for one year.1 The officer admitted that he was not 100 percent certain that defendant did not have a driver's license, but maintained that he was 95 percent certain that when he observed defendant driving in March 2005, defendant was driving without a driver's license. According to the officer, several months after he arrested defendant in 2003, he checked defendant's driving record by running a Law Enforcement Information Network (LEIN) check on defendant. He stated that he ran the LEIN check because he never received notice that defendant was appealing the suspension of his driver's license and he was expecting to receive such a notice. The officer learned from the LEIN check that defendant had failed to timely appeal the suspension of his license and that his request for an appeal had been denied. More importantly, during this check, the officer learned that defendant's license had been suspended for a period of one year beginning in spring or early summer of 2004. According to the officer, he therefore was aware

1

See MCL 257.625a(6)(b)(v) and MCL 257.625c.

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that defendant's driver's license would have been suspended until May, June or July of 2005. Although nothing about the way defendant was driving struck the officer as unusual or improper, he nevertheless initiated an investigatory stop of defendant's vehicle based on his knowledge that defendant was driving the vehicle without a driver's license. Upon stopping defendant's vehicle, the officer informed defendant that he knew who defendant was and that he knew defendant was not supposed to be driving. When the officer asked defendant if he had a valid driver's license, defendant responded that his license was restricted. The officer observed that defendant's eyes were "glassy" and that defendant smelled of intoxicants. According to the officer, he returned to his police car and ran a check of defendant's driver's license status, which confirmed his suspicion that defendant's driver's license was suspended. The officer then returned to defendant's vehicle and asked defendant how much he had had to drink that night. Defendant admitted that he had consumed five drinks between 7:00 p.m. and 1:30 a.m. After administering field sobriety tests to defendant, the officer arrested defendant. Defendant consented to a blood test and stipulated at the preliminary examination that the blood test revealed that defendant's blood alcohol level was .10. Defendant was charged with operating a motor vehicle while under the influence of a controlled substance, third offense,2 MCL 257.625(1)(b) and MCL 257.625(9)(c) or MCL 257.625(11)(c), and operating a motor vehicle on a suspended or revoked license, MCL 257.904(3)(a). The district court bound defendant over for trial. Defendant moved in circuit court to quash the information, arguing that the officer's investigatory stop of defendant's vehicle was unlawful. According to defendant, the officer did not have a reasonable suspicion that defendant was engaged in criminal activity because he did not observe defendant engaging in criminal activity and he did not check the status of defendant's driver's license until after he effectuated the stop of defendant's vehicle. Furthermore, defendant contended that although the officer had conducted a LEIN check, this information was stale and therefore could not be relied upon by the officer as a basis for the investigatory stop. The circuit court observed that although defendant styled his motion as one to quash, he was actually challenging the legal validity of the officer's investigative stop of his vehicle and seeking the suppression of evidence obtained from the stop. Instead of holding a new evidentiary hearing on the issue, the parties stipulated to use the record of the preliminary examination to decide this question. The circuit court agreed that the officer's stop of defendant's vehicle was unlawful, explaining as follows: The officer was on routine patrol . . . [and] saw a red Firebird in the vicinity. There was nothing unusual about the Firebird . . . . However, it appears that the nature of the stop was limited to the officer's knowledge or reliance upon the knowledge that he had previously arrested the defendant approximately two years before . . . . ***

2

The parties stipulated that defendant had two earlier drunk driving convictions.

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The Court notes that the defendant was in fact bound over to stand trial for operating under the influence of intoxicating liquor third offense and a suspended or revoked license, which is clear he didn't have a license, but reviewing the transcript, I think that the suspicion, the mere suspicion is invalid. It does not constitute a reasonable suspicion that a crime occurred and if you look at the case law, a stop based on the mere computer check, even if done at that time frame, is insufficient. . . . Even if the officer believed he didn't have a driver's license, that would be a misdemeanor and as we know an officer needs to view a misdemeanor in order to stop the defendant. Because it concluded that the officer did not have a reasonable suspicion of criminal activity sufficient to justify the investigatory stop of defendant's vehicle, the circuit court suppressed evidence and dismissed the case against defendant.3 In reviewing a trial court's decision on a motion to suppress evidence, we review the court's factual findings for clear error, but review the legal conclusions de novo. See People v Abraham, 234 Mich App 640, 644; 599 NW2d 736 (1999). The federal and state constitutions guarantee the right to be free from unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1,

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