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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v MARK LAVELL LEONARD, Defendant-Appellee.

UNPUBLISHED May 27, 2008

No. 270638 Wayne Circuit Court LC No. 05-009123-01

Before: Davis, P.J., and Schuette and Borrello, JJ. PER CURIAM. In this Fourth Amendment case, the prosecutor appeals as of right the trial court's order dismissing a charge of armed robbery. MCL 750.529. We affirm the trial court's suppression of defendant's pretrial lineup identification. However we reverse the trial court's suppression of the in-court identification and the trial court's dismissal of the armed robbery charge, and remand for further proceedings consistent with the opinions set forth in this case. From the outset we note that this case has caused each of us to reach different legal conclusions on a variety of the issues presented. Therefore, we write separately to express our separate legal reasoning and conclusions. In this case, my colleagues, Judge Schuette and Judge Davis, agree that the initial stop of the vehicle was constitutional and therefore permissible. On this issue, I respectfully dissent for the reasons set forth in this opinion. Judge Davis and I concur that the trial court was correct in suppressing defendant's pretrial identification, albeit premised on differing legal conclusions. I would hold that suppression should be based on an unconstitutional stop of the vehicle, whereas Judge Davis would suppress the evidence based on an unconstitutional search of the automobile. Judge Schuette dissents on these two issues and would reverse the trial court's decision to suppress the pretrial lineup identification for the reasons set forth in his partial concurrence and dissent. We are all in agreement that the trial court erred in suppression of the in-court identification, and therefore we reverse that portion of the trial court's decision as well as dismissal of the armed robbery charge and remand the matter to the trial court on that issue. I. FACTS AND PROCEDURAL HISTORY On the night of August 25, 2005, at about 9:45 p.m., a young man and a young woman flagged down Lieutenant Billy Jackson with the Detroit Police Department and told him that they 1


had been robbed. According to Lieutenant Jackson, the man and woman indicated that the robbery had occurred about 10 to 15 minutes before his arrival and gave him a very limited description of the perpetrators: two young black males who were wearing mostly black clothing. Lieutenant Jackson did not receive any information regarding the perpetrators' height or weight. The man and woman told Lieutenant Jackson that the perpetrators fled on foot to a gated apartment complex that was approximately 75 to 100 yards west of the park where the robbery occurred. Officers Jason Tonti, a ten-year veteran with the Detroit Police Department, and Kimberly Love, responded to Lieutenant Jackson's call for assistance. According to Officer Tonti, Lieutenant Jackson described the perpetrators as "three black males" and described the perpetrators' clothing as either dark clothing or "[b]lack shirt, pants, hat." Officer Tonti did not receive a height or weight description for the suspects. Based on information that the perpetrators had fled on foot to a nearby the apartment complex, Officer Tonti drove his unmarked scout car to the entrance of the apartment complex and "parked [the] scout car there facing southbound with [the] driver's side to the entrance and exit" of the apartment complex. It was dark outside, and Officer Tonti had his overhead lights, headlights and spotlight on. He stated that there were "a few other" scout cars there as well. According to Officer Tonti, a person could enter or exit the apartment complex on foot at various locations, but the only place to drive a car in or out of the complex was by the location where he parked his scout car. Officer Tonti stated that he "sat there . . . watching to see if there was anybody that fit the description pulling out of the complex." About 10 to 15 minutes after Officer Tonti arrived at the apartment complex, an older model Ford Explorer with three black male occupants exited the complex. According to Officer Tonti, the front seat passenger was wearing a dark colored shirt and a hat and the rear seat passenger was also wearing a dark colored shirt. Officer Tonti stated that usually when people come to an area where there are a lot of police officers, they gawk, but the individuals in the Explorer "didn't do anything. They looked straight ahead." Officer Tonti stated that he "just wanted to check it out, get some names, you know[,]" so he pulled the vehicle over and asked the driver for his driver's license, proof of insurance, and registration. When the driver indicated that he did not have a driver's license, Officer Tonti "pulled him out of the car" and then searched the three men. During an investigatory search of the vehicle, Officer Tonti recovered from under one of the back seats two credit cards bearing the name "Julian Jones." At trial, Officer Tonti asserted that defendant was the front seat passenger, but at the motion hearing, he asserted that defendant was the rear seat passenger and that he recovered the credit cards from underneath the seat upon which defendant was sitting. Officer Tonti's partner recognized Jones' name as the name of an individual who had been the victim of an armed robbery in early August 2005. At that time, Officer Tonti "placed the suspects in custody . . . just on the information that was given to me by my partner." Thereafter, the police conducted a live lineup in which Jones identified defendant as the individual who had robbed him earlier in the month. Defendant was charged and tried by a jury in connection with the robbery of Jones. At trial, Jones identified defendant in court as the perpetrator. The jury hung, and defendant was not convicted. Thereafter, defendant moved to suppress evidence of Jones's identification of defendant in the lineup as well as Jones's in-court identification of defendant.1 Defendant argued that the pretrial lineup identification evidence
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The motion to suppress did not seek to suppress evidence of the two credit cards that were 2


must be suppressed because it was the fruit of a Fourth Amendment violation and it was unduly suggestive. Defendant also argued that there was no independent basis for Jones's in-court identification of defendant and that the in-court identification evidence must be suppressed as well. At the suppression hearing, the prosecutor argued that Officer Tonti had a reasonable suspicion to stop the vehicle in which defendant was a passenger based on the descriptions of the perpetrators and because defendant was in the same area where the suspects fled on foot within 30 minutes of the robbery. Defendant argued that Officer Tonti did not have a particularized suspicion of criminal activity because the only description of the perpetrators was that they were two black men wearing dark or black clothing who fled on foot, and the police stopped three black men in a vehicle. Defendant further contended that because it was nighttime and the men were in a vehicle, Officer Tonti could only see their clothing from the shoulders up. The trial court ruled that the investigatory stop of the vehicle in which defendant was a passenger was illegal because it was based on the fact that the occupants of the vehicle were black. Therefore, the trial court suppressed Jones's pretrial lineup identification of defendant: There is nothing that presents [defendant and the other occupants of the vehicle] as being about to commit a crime. No reasonable, articulable suspicion . . . that they have committed a crime, are in the process, or did commit a crime. Nothing that would justify their detention. Because they're just black males, and he's stopping all black males, but that's not particularized. The prosecutor argued at the suppression hearing that Jones's in-court identification of defendant should be admissible because Jones may have had an independent ability to recognize defendant. The trial court noted that Jones was not present at the suppression hearing to testify regarding the existence of an independent basis for identifying defendant and that it could not recall Jones's trial testimony regarding the issue. In fact, at trial, Jones identified defendant in court as the perpetrator and testified regarding an independent basis for his in-court identification of defendant as a result of his opportunity to view defendant's face when defendant robbed him. Unaware of this trial testimony, the trial court suppressed the in-court identification, opining that the remedy for a Fourth Amendment violation must be suppression of the in-court identification. The prosecutor appeals as of right the trial court's suppression of Jones's pretrial lineup identification of defendant and Jones's in-court identification of defendant. II. STANDARD OF REVIEW This Court reviews de novo a trial court's ruling on a motion to suppress. People v Williams, 472 Mich 308, 313; 696 NW2d 636 (2005). We review for clear error a trial court's factual findings at a suppression hearing. People v Jenkins, 472 Mich 26, 31; 691 NW2d 759 (2005). Application of the exclusionary rule to a Fourth Amendment violation is a question of law that we review de novo. Id. III. ANALYSIS discovered during the search of the vehicle.

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A. Standing As a threshold issue, we must determine whether defendant, as a passenger2 in the vehicle that was stopped by the police, has standing to challenge the stop of the vehicle and the subsequent search of the vehicle. The trial court stated on the record at the suppression hearing that defendant, as a passenger of the vehicle, did not have standing to challenge the stop of the vehicle, but nevertheless suppressed Jones's lineup identification of defendant and in-court identification of defendant based on the illegal stop of the vehicle in which defendant was a passenger. Whether a party has standing is a question of law that this Court reviews de novo. Lee v Macomb Co Bd of Comm'rs, 464 Mich 726, 734; 629 NW2d 900 (2001). The United States Supreme Court recently held that when a police officer makes a traffic stop of a vehicle, any passenger in the vehicle stopped, like the driver, is seized within the meaning of the Fourth Amendment and therefore has standing to challenge the constitutional validity of the stop. Brendlin v California, ___ US ___ ; 127 S Ct 2400; 168 L Ed 2d 132 (2007); see also United States v Garcia, 496 F3d 495, 503 (CA 6, 2007). Therefore, defendant has standing to challenge the stop of the vehicle in which he was a passenger. Whether defendant has standing to challenge the search of the vehicle is a separate issue. Both this Court and the Michigan Supreme Court have held that where a stop of a vehicle is legal, a passenger lacks standing to challenge a subsequent search of the vehicle. People v LaBelle, 478 Mich 891, 892; 732 NW2d 114 (2007); People v Armendarez, 188 Mich App 61, 71; 468 NW2d 893 (1991). For reasons that will be explained more fully in this opinion, I conclude that the stop of the vehicle in which defendant was a passenger was not a valid investigatory stop. Thus, the issue is whether defendant has standing to challenge an illegal search of a vehicle in which he was a passenger. To date, our Courts have yet to address the issue whether a passenger in a vehicle has standing to challenge the search of a vehicle that was stopped in violation of the Fourth Amendment. However, after examining cases in the federal courts of appeals addressing the issue of passenger standing, to challenge a search of a vehicle following an illegal stop, Judge Davis and I hold that defendant does have standing to challenge the search of the vehicle. It is true that as a passenger in the vehicle and not the owner of the vehicle, defendant arguably lacked a legitimate expectation of privacy in the car.3 Garcia, supra at 503 n 3. Generally, a defendant only has standing if she "has a `legitimate expectation of privacy' in the places searched or the items seized." Id., quoting United States v King, 55 F3d 1193, 1195 (CA 6, 1995); see also United States v Davis, 430 F3d 345, 360 (CA 6, 2005). "[T]he prevailing view in the [federal] courts of appeals is that an illegal traffic stop entails a suppression remedy for all occupants of the car." United States v Mosley, 454 F3d 249, 266 (CA 3, 2006). Thus, "most [federal] courts [of appeal] treat evidence found during an illegal traffic stop as the fruits of that The vehicle in which defendant was a passenger was owned by the father of the driver of the vehicle. This Court recently discussed the fact that even drivers of automobiles have a diminished expectation of privacy when it comes to a police search of an automobile because of the need for pervasive governmental regulation of automobiles. See People v Mungo, __ Mich App __ ; __ NW2d __ (Docket No. 269250; January 17, 2008).
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stop, and see no conceptual difficulties in suppressing such evidence when introduced against passengers." Id. at 257. See, e.g., United States v Ellis, 497 F3d 606, 612 (CA 6, 2007); United States v Ameling, 328 F3d 443, 446-447 n 3 (CA 8, 2003); United States v Twilley, 222 F3d 1092, 1095 (CA 9, 2000). Judge Davis and I agree that "passengers in an illegally stopped vehicle have `standing' to object to the stop, and may seek to suppress the evidentiary fruits of that illegal seizure under the fruit of the poisonous tree doctrine[.]" Mosely, supra at 253 (footnote omitted). Therefore, Judge Davis and I hold that defendant may seek to suppress evidence uncovered during the search of the vehicle following the illegal stop.4 B. Legality of the Investigatory Stop The prosecutor argues that Officer Tonti had a reasonable suspicion that criminal activity was afoot when he stopped the vehicle in which defendant was a passenger and that the investigatory stop of the vehicle therefore did not violate the Fourth Amendment. Defendant contends that the investigatory stop of the vehicle in which he was a passenger was unlawful because Officer Tonti did not have a particularized suspicion of criminal activity. The stop of the vehicle in which defendant was a passenger implicates defendant's right to be free from unreasonable searches and seizures; this right is guaranteed by both the United States Constitution and the Michigan Constitution. US Const, Am IV; Const 1963, art 1,

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