By Ben Solis
Gongwer News Service
A split Michigan Supreme Court partially overruled a piece case law last Friday that said a defendant, raising Fourth Amendment concerns, is only “seized” by law enforcement when an officer has completely blocked them into a parked vehicle.
The decision in People v. Duff (MSC Docket No. 163961), written by Justice Richard Bernstein, also found that the totality of the circumstances needed to be considered, especially when the Fourth Amendment was at play, because the partial blocking in of a police vehicle was but one factor the test.
Bernstein was joined by his liberal majority colleagues Justice Megan Cavanagh, Justice Elizabeth Welch and Justice Kyra Harris Bolden.
Chief Justice Elizabeth Clement and Justice David Viviano wrote separate dissenting opinions, the latter joined by Justice Brian Zahra.
Although Viviano dissented in full, Clement said she agreed with majority on its holding regarding overruling a portion of Fourth Amendment case law.
Duff involved a defendant who was arrested and charged with operating while intoxicated, a third offense. The Oakland County Circuit Court denied a motion to suppress evidence based on Fourth Amendment grounds, and the Court of Appeals denied leave, but the Supreme Court remanded the case with instructions to parse when the defendant was searched for Fourth Amendment purposes.
The trial court granted the defendant’s motion to dismiss, but the appellate court reversed on a 2-1 decision in an unpublished opinion.
The high court was asked to determine whether the totality of the circumstances surrounding the officers’ conduct of partially obstructing the defendant’s ability to move his vehicle would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.
In sum, the majority held the defendant was seized before officers observed signs of intoxication, and the Court of Appeals ruling should be reversed.
“We remand … for consideration of whether, in light of our conclusion that the defendant was seized under the circumstances of the police encounter in this case, (the deputy) had reasonable suspicion of criminal conduct when defendant was initially seized. If the Court of Appeals affirms the trial court’s holding that there was no
reasonable suspicion of criminal conduct, the Court of Appeals should then consider in the first instance whether the exclusionary rule applies.”
Bernstein wrote that the applicable standard in the case was an objective one that measures what a reasonable person would do under the totality of the circumstances, and the extent to which a defendant is partially blocked is one of many factors to be decided by a court.
But more importantly, Bernstein and the majority held that People v. Anthony, a 2019 case, should be reversed, but only to the extent that the opinion held that a defendant is only seized when the police have completely blocked in a parked vehicle.
The Court of Appeals in Duff relied on Anthony and another case to determine that, because the defendant could have exited his parking space with some maneuvering, he was not seized.
“In so holding, the Court of Appeals majority noted that the record establishes that the defendant was not limited to driving onto the grass as the trial court had believed and that the defendant could have instead turned as he was backing out,” Bernstein wrote. “Because the Court of Appeals majority noted that the position of the police vehicle alone did not turn the encounter into a seizure, they examined whether there was other coercive behavior that transformed the encounter into a seizure. Finding none, the Court of Appeals majority concluded that defendant was not seized and that his Fourth Amendment rights were thus not implicated.”
The record showed that there was a definite error committed by the trial court, and that the Court of Appeals majority “was right in noting that defendant was not completely blocked in because there was a means of egress available to him.”
That said, the dissent from the panel noted that the majority’s reasoning misconstrued the test within the meaning of the Fourth Amendment, as it does not turn on a “measuring tape or the existence of some demanding but conceivable means of departure.”
With that in mind, Bernstein wrote that while completely blocking egress could be a sufficient condition to find that a seizure occurred, it wasn’t a necessary condition because the seizure test required consideration of all the facts and circumstances.
“To the extent that Anthony reached the opposite conclusion, we overrule it as being inconsistent with general Fourth Amendment jurisprudence, which focuses not only on the technical ability of a driver to maneuver out of a certain position, but on whether a reasonable person would have felt free to leave the scene under the totality of the circumstances. In other words, insofar as portions of Anthony purport to establish a bright-line rule about when a police car’s positioning can result in a seizure, we clarify that bright-line rules are necessarily at odds with Fourth Amendment analysis given that the reasonable-person standard is an imprecise test.”
Viviano wrote that the ruling continued the majority’s “recent trend of recharacterizing routine police-citizen interactions as constitutional violations.”
“Michigan now will be the only jurisdiction in the United States where police officers are not permitted to approach suspects sitting in vehicles at night to investigate suspected criminal activity,” Viviano wrote, as he went on to cite United States v. Mendenhall. “But ‘the purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’”
In that regard, Viviano wrote that the majority in Duff turned the Mendenhall “free to leave” test on its head.
“Its decision-making in this and other recent cases will make the work of policing more dangerous and the public less safe from criminal activity. I would instead follow the binding decisions of the U.S. Supreme Court and this court, and the overwhelming weight of authority from the lower federal courts and other state courts,” Viviano wrote.
“Under those precedents, it is clear that the defendant was not seized when the police officers positioned their patrol vehicle behind the defendant’s vehicle, partially obstructing his egress, activated their spotlight, and approached the defendant’s vehicle.”
Clement in dissent wrote that the line between a consensual encounter with the police and a seizure under the Fourth Amendment was “often exceedingly subtle and drawing that line is rarely an easy task.” She agreed with Viviano that the officers did not seize the defendant before the deputy saw signs that he was intoxicated.
The chief justice wrote separately to discuss what she believed was the proper understanding of Mendenhall, and why she agreed with the majority’s decision to overrule
Anthony.
“In sum, the proper understanding of the Mendenhall free-to-leave test, in my view, is whether officers’ words and conduct, considered collectively, would have communicated to a reasonable person in the defendant’s position that he was not free to go about his business or ignore police,” Clement wrote. “Applying that understanding here, I do not believe the officers’ conduct would have communicated this to a reasonable person in defendant’s position. I therefore disagree with the majority’s conclusion that officers seized defendant after they parked their patrol vehicle and began approaching defendant’s car.”
Although she joined the majority, Welch wrote a separate concurrence to raise concerns about whether the current federal standard for determining seizure under the Fourth Amendment was workable or consistent with the Michigan Constitution.
Welch wrote that there has been continuous debate about what a reasonable person would think during interactions with law enforcement, and debate about what actions constitute an adequate showing of physical force or authority to start seizure.
She cited academic work and empirical studies that showed the Mendenhall test was less than ideal for both police and those stopped by them.
A different test formulated by a journal, which posits that an officer should be required to demonstrate an objective basis, or reasonable suspicion, for doing so, would be easier to apply.
“This would also restore some legal relevance to the subjective views and intentions of law enforcement officers when performing a Fourth Amendment seizure analysis, especially when such intentions are not conveyed to a suspect,” Welch wrote. “Although I cannot say whether such a test should be adopted, it would make a case like this one uncontroversial.”
Gongwer News Service
A split Michigan Supreme Court partially overruled a piece case law last Friday that said a defendant, raising Fourth Amendment concerns, is only “seized” by law enforcement when an officer has completely blocked them into a parked vehicle.
The decision in People v. Duff (MSC Docket No. 163961), written by Justice Richard Bernstein, also found that the totality of the circumstances needed to be considered, especially when the Fourth Amendment was at play, because the partial blocking in of a police vehicle was but one factor the test.
Bernstein was joined by his liberal majority colleagues Justice Megan Cavanagh, Justice Elizabeth Welch and Justice Kyra Harris Bolden.
Chief Justice Elizabeth Clement and Justice David Viviano wrote separate dissenting opinions, the latter joined by Justice Brian Zahra.
Although Viviano dissented in full, Clement said she agreed with majority on its holding regarding overruling a portion of Fourth Amendment case law.
Duff involved a defendant who was arrested and charged with operating while intoxicated, a third offense. The Oakland County Circuit Court denied a motion to suppress evidence based on Fourth Amendment grounds, and the Court of Appeals denied leave, but the Supreme Court remanded the case with instructions to parse when the defendant was searched for Fourth Amendment purposes.
The trial court granted the defendant’s motion to dismiss, but the appellate court reversed on a 2-1 decision in an unpublished opinion.
The high court was asked to determine whether the totality of the circumstances surrounding the officers’ conduct of partially obstructing the defendant’s ability to move his vehicle would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.
In sum, the majority held the defendant was seized before officers observed signs of intoxication, and the Court of Appeals ruling should be reversed.
“We remand … for consideration of whether, in light of our conclusion that the defendant was seized under the circumstances of the police encounter in this case, (the deputy) had reasonable suspicion of criminal conduct when defendant was initially seized. If the Court of Appeals affirms the trial court’s holding that there was no
reasonable suspicion of criminal conduct, the Court of Appeals should then consider in the first instance whether the exclusionary rule applies.”
Bernstein wrote that the applicable standard in the case was an objective one that measures what a reasonable person would do under the totality of the circumstances, and the extent to which a defendant is partially blocked is one of many factors to be decided by a court.
But more importantly, Bernstein and the majority held that People v. Anthony, a 2019 case, should be reversed, but only to the extent that the opinion held that a defendant is only seized when the police have completely blocked in a parked vehicle.
The Court of Appeals in Duff relied on Anthony and another case to determine that, because the defendant could have exited his parking space with some maneuvering, he was not seized.
“In so holding, the Court of Appeals majority noted that the record establishes that the defendant was not limited to driving onto the grass as the trial court had believed and that the defendant could have instead turned as he was backing out,” Bernstein wrote. “Because the Court of Appeals majority noted that the position of the police vehicle alone did not turn the encounter into a seizure, they examined whether there was other coercive behavior that transformed the encounter into a seizure. Finding none, the Court of Appeals majority concluded that defendant was not seized and that his Fourth Amendment rights were thus not implicated.”
The record showed that there was a definite error committed by the trial court, and that the Court of Appeals majority “was right in noting that defendant was not completely blocked in because there was a means of egress available to him.”
That said, the dissent from the panel noted that the majority’s reasoning misconstrued the test within the meaning of the Fourth Amendment, as it does not turn on a “measuring tape or the existence of some demanding but conceivable means of departure.”
With that in mind, Bernstein wrote that while completely blocking egress could be a sufficient condition to find that a seizure occurred, it wasn’t a necessary condition because the seizure test required consideration of all the facts and circumstances.
“To the extent that Anthony reached the opposite conclusion, we overrule it as being inconsistent with general Fourth Amendment jurisprudence, which focuses not only on the technical ability of a driver to maneuver out of a certain position, but on whether a reasonable person would have felt free to leave the scene under the totality of the circumstances. In other words, insofar as portions of Anthony purport to establish a bright-line rule about when a police car’s positioning can result in a seizure, we clarify that bright-line rules are necessarily at odds with Fourth Amendment analysis given that the reasonable-person standard is an imprecise test.”
Viviano wrote that the ruling continued the majority’s “recent trend of recharacterizing routine police-citizen interactions as constitutional violations.”
“Michigan now will be the only jurisdiction in the United States where police officers are not permitted to approach suspects sitting in vehicles at night to investigate suspected criminal activity,” Viviano wrote, as he went on to cite United States v. Mendenhall. “But ‘the purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’”
In that regard, Viviano wrote that the majority in Duff turned the Mendenhall “free to leave” test on its head.
“Its decision-making in this and other recent cases will make the work of policing more dangerous and the public less safe from criminal activity. I would instead follow the binding decisions of the U.S. Supreme Court and this court, and the overwhelming weight of authority from the lower federal courts and other state courts,” Viviano wrote.
“Under those precedents, it is clear that the defendant was not seized when the police officers positioned their patrol vehicle behind the defendant’s vehicle, partially obstructing his egress, activated their spotlight, and approached the defendant’s vehicle.”
Clement in dissent wrote that the line between a consensual encounter with the police and a seizure under the Fourth Amendment was “often exceedingly subtle and drawing that line is rarely an easy task.” She agreed with Viviano that the officers did not seize the defendant before the deputy saw signs that he was intoxicated.
The chief justice wrote separately to discuss what she believed was the proper understanding of Mendenhall, and why she agreed with the majority’s decision to overrule
Anthony.
“In sum, the proper understanding of the Mendenhall free-to-leave test, in my view, is whether officers’ words and conduct, considered collectively, would have communicated to a reasonable person in the defendant’s position that he was not free to go about his business or ignore police,” Clement wrote. “Applying that understanding here, I do not believe the officers’ conduct would have communicated this to a reasonable person in defendant’s position. I therefore disagree with the majority’s conclusion that officers seized defendant after they parked their patrol vehicle and began approaching defendant’s car.”
Although she joined the majority, Welch wrote a separate concurrence to raise concerns about whether the current federal standard for determining seizure under the Fourth Amendment was workable or consistent with the Michigan Constitution.
Welch wrote that there has been continuous debate about what a reasonable person would think during interactions with law enforcement, and debate about what actions constitute an adequate showing of physical force or authority to start seizure.
She cited academic work and empirical studies that showed the Mendenhall test was less than ideal for both police and those stopped by them.
A different test formulated by a journal, which posits that an officer should be required to demonstrate an objective basis, or reasonable suspicion, for doing so, would be easier to apply.
“This would also restore some legal relevance to the subjective views and intentions of law enforcement officers when performing a Fourth Amendment seizure analysis, especially when such intentions are not conveyed to a suspect,” Welch wrote. “Although I cannot say whether such a test should be adopted, it would make a case like this one uncontroversial.”
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