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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v EMMETT GOUCH III, Defendant-Appellee.

UNPUBLISHED December 20, 2011

No. 299706 Monroe Circuit Court LC No. 10-038129-FH

Before: MURPHY, C.J., and JANSEN and OWENS, JJ. PER CURIAM. The prosecution appeals as of right the trial court's order granting defendant's motion to suppress evidence and to dismiss the sole charge of possession with intent to deliver more than 50 but less than 450 grams of a controlled substance, oxycodone, MCL 333.7401(2)(a)(iii). We reverse the trial court's ruling and remand for reinstatement of the drug charge. On February 9, 2009, Deputy Jeffrey Ellington noticed a Pontiac Grand Prix traveling on I-75 that was, according to Ellington, swerving within its lane. Ellington testified at defendant's preliminary examination that the car was not speeding and never went outside the lane markers, but it weaved or swerved almost continuously for three to four minutes and for three miles. A DVD produced from a camera on Ellington's police cruiser captured approximately the last minute of Ellington trailing the vehicle before the stop was made; it does not reveal the prior two or three minutes during which the Grand Prix was alleged to be swerving.1 The DVD footage shows that the vehicle swerved two, maybe three, times within its lane of traffic. Ellington pulled the vehicle over, suspecting that the driver was intoxicated or otherwise impaired. The driver was Antonio McKelton, and defendant was a passenger. Ellington approached the car on the passenger side and asked for McKelton's license and registration, but he was given only a Michigan identification card and a rental agreement for the car that did not list McKelton or

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Ellington testified that the camera captures and retains footage from a minute before he activates his cruiser's overhead red and blue lights until the conclusion of the traffic stop. He stated that the DVD, therefore, did not contain footage of the entire period that he trailed and observed the car.

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defendant as the authorized driver.2 Ellington asked McKelton to exit the car and escorted him behind the car for questioning. As reflected in the DVD, McKelton clearly stated that he did not have a current valid driver's license because it had been suspended for failure to pay parking tickets, which, according to McKelton, is why he only had the identification card.3 Ellington requested permission to search the vehicle and McKelton consented. When Ellington reapproached the passenger side of the car, he noticed a white pharmacy bag on the ground outside the vehicle which had not been there moments earlier. Deputy Ellington questioned defendant about the bag, but defendant repeatedly insisted that the bag did not belong to him and he denied dumping it out of the car when Ellington was questioning McKelton. In the bag there were several sandwich bags containing greenish-blue pills inside. The laboratory report established that there were 220 pills in the bag, totaling 59.02 grams of oxycodone. Ellington then searched the car and found several cell phones and a torn-off prescription label from Walgreen's for Oxycontin4 written for a person other than defendant or McKelton. During Ellington's questioning of McKelton and defendant at the scene of the traffic stop, they gave divergent stories of where they were heading and they struggled to explain how they knew each other. In the trial court, defendant filed a motion to suppress the evidence and to dismiss the charge, claiming that the traffic stop was unconstitutional because Ellington had not actually observed any particular traffic infraction; therefore, any evidence recovered as a result of the stop was inadmissible. The trial court found that Ellington should have concluded the traffic stop and allowed defendant and McKelton to go on their way as soon as Ellington learned that McKelton was not intoxicated or impaired. The trial court, therefore, found that the subsequent

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In the DVD, McKelton is heard telling Deputy Ellington that McKelton's girlfriend rented the vehicle, but McKelton then indicated that his name was also on the rental agreement, which turned out not to be the case.

Ellington then asked McKelton if he had anything other than a temporary paper "license," but this reference, given McKelton's concession that his license was suspended, was clearly regarding McKelton's Michigan identification paperwork. Even at the very beginning of the stop, the DVD reveals that McKelton indicated that he had no license. The DVD also reflects that Ellington was reading information from the piece of paper, checking it against McKelton's answers to questions. Had this been a temporary license and not simply a paper identification card, Ellington would not have been asking questions about why McKelton had no license. And Ellington testified during the preliminary examination that McKelton produced only a Michigan identification card, not a license. Defendant insists that he produced a temporary license to Ellington. Even were that the case, the problematic vehicle rental agreement, the fact that Ellington had yet to explore the possibility of impairment or intoxication, and the DVD's recording of McKelton telling Ellington that he had a traffic warrant, all provided a basis to continue the seizure, regardless of the license issue. "Oxycontin contains oxycodone, which is listed as a schedule 2 controlled substance pursuant to MCL 333.7214(a)(i)." People v Waltonen, 272 Mich App 678, 680 n 1; 728 NW2d 881 (2006).
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search and continued seizure of the vehicle and its occupants were impermissible. Accordingly, the court suppressed the evidence recovered from the stop and dismissed the drug charge brought against defendant. On appeal, the prosecution argues that defendant lacked standing to challenge the search and seizure of the evidence and that the length of time that the vehicle and its occupants were detained was reasonable. As reflected below, there are multiple reasons why the search was constitutionally sound. We review for clear error a trial court's factual findings at a suppression hearing, but the application of constitutional standards concerning searches and seizures to uncontested facts receives less deference, and the court's ultimate ruling on the motion to suppress is reviewed de novo. People v Williams, 472 Mich 308, 313; 696 NW2d 636 (2005). The Fourth Amendment of the United States Constitution and Article 1,

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