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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v JAMES LEE BISHOP, Defendant-Appellee.

UNPUBLISHED November 25, 2008

No. 284303 Calhoun Circuit Court LC No. 07-004402-FH

Before: Markey, P.J., and Whitbeck and Gleicher, JJ. PER CURIAM. Defendant James Lee Bishop was charged with one count of carrying a concealed weapon, MCL 750.227, following a traffic stop of a truck in which he was a passenger. The prosecution appeals by leave granted the trial court's order granting defendant's motion to suppress the evidence. We reverse. On October 5, 2007, at approximately 3:00 p.m., Officer Seth Graves was driving in his patrol car on East Columbia Avenue in Emmett Township, Michigan. While following a fourdoor pickup truck, he observed that the truck's license plate was partially covered in violation of MCL 257.225(2). Graves initiated a traffic stop of the pickup; Robert Calvin was driving. The pickup also contained two passengers: one in the front seat and one, defendant, in the back. Officer Graves requested Calvin's driver's license, the registration and proof of insurance for the pickup. Calvin tendered his driver's license, but was unable to produce proof of insurance or the pickup's registration certificate, a violation of MCL 257.223(1). Officer Graves observed that Calvin appeared nervous, made no eye contact, and was "fumbling" around inside of the vehicle. Calvin also informed Graves that he came from Lansing and was just "passing through" Battle Creek, where he had no family, on his way back to Arizona. Graves testified that the totality of the situation, the covered plate, lack of a registration certificate, the nervousness of the vehicle's occupants, lack of eye contact, Calvin's statements and the lack of luggage or clothing in the pickup aroused his suspicions. At that point, Officer Graves asked for and collected the driver's licenses of the passengers. Graves then returned to his patrol car to request backup from other units. Calvin and the two passengers remained in the pickup. In his patrol car, Graves entered the information on the driver's licenses into the Law Enforcement Information Network ("LEIN"). The LEIN check revealed that the licenses were valid, and there were no outstanding arrest warrants for the identified individuals. The LEIN check of the truck's occupants took approximately five minutes. -1-


Although Calvin had told Graves the paper covering the pickup's license plate was a temporary registration and that its placement was lawful in Arizona, Graves did not believe it safe to approach the rear of the pickup to closely inspect the paper obstructing what appeared to be an out-of-state license plate before backup officers arrived. With the information he had, Graves did not know whether the pickup was stolen or lawfully in Calvin's possession. When backup police units arrived, Graves explained to the responding officers what he knew at that point. Graves returned to the pickup truck and requested that the driver exit to view the infraction leading to the traffic stop. Graves testified that because of factors already noted, he was concerned for his and the other officer's safety. He then asked Calvin what Graves characterized as a standard question: Were any "guns, drugs, bombs, knives," or similar items in the vehicle? Calvin responded there was a pistol in the back seat. Another officer then took Calvin into custody and placed him in the back of a patrol car. At the same time, Officer Graves ordered the two passengers out of the truck. At that point, and without any questioning from the officers, defendant stated that the "guns" in the backseat belonged to him. The officers subsequently recovered two pistols from a pocket behind the front passenger's seat. At the joint preliminary examination of Calvin and defendant, counsel argued that the guns seized from pickup should be suppressed because the traffic stop was unlawful, and that at any rate, the detention had been longer than necessary to dispel any suspicion regarding the covered license plate. The district court ruled the stop was lawful and that the officer was permitted to run LEIN checks. With respect to the length of detention, the magistrate ruled, "we're not talking about a lengthy period of time in which . . . anyone was detained for that period, a long period of time." The district court characterized the incident as "a standard traffic stop" which was not converted to an unlawful detention by the time period of detention involved. In the circuit court, defendant moved to suppress the guns seized from the pickup. Apparently, the parties stipulated that the motion could be decided on the preliminary examination record, briefs and arguments of counsel. The circuit court questioned whether defendant, as a passenger in the pickup, possessed standing to challenge the stop. The court accepted counsel's assurance that under Brendlin v California, ___ US ___; 127 S Ct 2400; 168 L Ed 2d 132 (2007) defendant had standing. Defendant's primary argument was that he was detained longer than necessary to dispel any suspicion regarding the covered plate; the police should have released him after verifying the validity of the truck occupants' licenses and receiving no adverse information in a LEIN check. The circuit court agreed and granted defendant's motion, concluding that the officers had no basis to continue holding defendant after the point Calvin made his assertion about the pistol in the backseat. The circuit court opined: I do suppress the evidence. And I do so on the basis that I make a distinction between the detention of [defendant] and the detention of Mr. Calvin. ***

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It's a very close question. But I really do think that the length of time even though it wasn't the six or eight minutes that the Williams[1] case refers to and [defendant] was not the driver, not the owner, like the defendant was in the Williams case is a sufficient distinction to suppress that evidence. On appeal, the prosecution argues that the trial court erroneously granted defendant's motion. This Court reviews a trial court's findings of fact at a suppression hearing for clear error; however, the ultimate ruling on a motion to suppress is reviewed de novo. People v Davis, 250 Mich App 357, 362; 649 NW2d 94 (2002). The Constitutions of the United States and Michigan guarantee the right of persons to be secure against unreasonable searches and seizures. US Const Am IV; Const 1963, Art 1

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