Plaintiff, the city of Troy (City), appeals by leave granted the circuit court's denial of leave to appeal, which allowed to stand the district court's order striking down a City ordinance and suppressing certain evidence collected from defendant during a preliminary breath test (PBT). Having found no error in the district court's ruling or the circuit court's denial of leave to appeal, we now affirm.
A number of young adults under 21 years of age were allegedly drinking alcoholic beverages at a house party in the City. Police officers responded to a call and arrived to find a group of individuals leaving the party on foot. The officers detained the group of young adults, which included defendant. An officer asked each of the young adults whether he or she had been drinking alcohol. Some of the young adults indicated that they had been drinking, and others indicated that they had not. The officer divided the young adults into two smaller groups, separating those who admitted that they had been drinking from those who denied drinking at the party. The officers then proceeded to administer PBTs to the young adults. One of the officers administered a PBT to defendant, which resulted in a reading of "0.025." It is undisputed that the officer did not request defendant's consent before administering the PBT. Neither that particular officer, nor any other officer, obtained a search warrant before administering the PBTs.
The City ordinance at issue in this case, Troy Ordinance § 98.10.03, provides in relevant part:
Furthermore, Troy Ordinance § 98.10.04 provides in relevant part that a "person less than 21 years of age who refuses to submit to a preliminary chemical breath analysis ... is responsible for a civil infraction and may be ordered to pay a civil fine of not more than $100.00."
Defendant testified before the district court that the officers had indicated that he and the others were required take a PBT. According to defendant and other witnesses, the officers informed the young adults that they would be taken to the police station—and possibly go to jail—if they did not comply by submitting to the PBTs. Defendant testified that he believed that he had no choice but to submit to the PBT. Defendant and other witnesses stated that the officers had been aggressive and had used profane language toward the young adults. Defendant testified that he had felt intimidated and that he had therefore submitted to the PBT without objecting and without asking any questions of the officers.
After having been charged with violating Troy Ordinance § 98-10-03, defendant moved in the district court to suppress the results of the PBT. Defendant argued that the ordinance was unconstitutional because it purported to allow a police officer to perform a warrantless search, because warrantless searches are generally considered unreasonable unless an exception applies, and because no exception to the warrant requirement was applicable in this case. In support of his position, defendant cited two cases in which the United States District Court for the Eastern District of Michigan had ruled that a similarly worded ordinance and a similarly worded state statute were unconstitutional. Defendant at all times maintained that the police officers had been aggressive, that he had felt compelled to comply with the officers' directions, and that he had not voluntarily submitted to the PBT.
The district court held oral argument on defendant's motion and heard the testimony of several witnesses. The district court ruled that Troy Ordinance § 98-10-03 was unconstitutional on its face, that the warrantless search of defendant's person had been unreasonable, and that no exception to the warrant requirement had been applicable on the facts of this case. Therefore, the district court suppressed the evidence collected from defendant during the PBT.
The City subsequently sought leave to appeal the district court's ruling in the Oakland Circuit Court. The circuit court held no oral argument and decided the City's application for leave to appeal on the basis of the written submissions alone. In a succinct but complete opinion and order, the circuit court observed that it had surveyed the relevant caselaw and had found no decisions on point, other than the two federal cases cited by defendant before the district court. The circuit court opined that "[t]here is nothing from the appellate courts upon which to base the reversal of the district court" and that the "district court's decision was correct insofar
We granted leave to appeal to consider this issue of first impression for the Michigan appellate courts. People of Troy v. Chowdhury, unpublished order of the Court of Appeals, entered March 20, 2009 (Docket No. 288696).
The constitutionality of an ordinance is reviewed de novo, People v. Barton, 253 Mich.App. 601, 603, 659 N.W.2d 654 (2002), as are all other questions of constitutional law, People v. LeBlanc, 465 Mich. 575, 579, 640 N.W.2d 246 (2002). We will not disturb a trial court's
We cannot conclude that the circuit court erred by denying the City's application for leave to appeal, thereby allowing to stand the district court's order striking down Troy Ordinance § 98.10.03 and suppressing the evidence collected from defendant during the PBT.
The United States District Court for the Eastern District of Michigan has already held a substantially similar Bay City ordinance and a substantially similar state statute unconstitutional. Spencer v. Bay City, 292 F.Supp.2d 932 (E.D.Mich., 2003); Platte v. Thomas Twp., 504 F.Supp.2d 227 (E.D.Mich., 2007). In the instant matter, the district court cited these two federal cases as persuasive authority, ruling that Troy Ordinance § 98.10.03 "is too broad," that "requesting someone to submit to a PBT is a search," and that the police were required to obtain a warrant before administering the PBTs unless it could be shown that one of the exceptions to the search warrant requirement applied. As discussed previously, the circuit court agreed, finding no Michigan caselaw on which to base a reversal of the district court's ruling.
The City argues that the federal caselaw relied on by the district and circuit courts failed to adequately address the "special needs" exception to the search warrant requirement. The City contends that the "special needs" exception should be applied in this case because there is a compelling state interest in protecting young people from the dangers of alcohol abuse and in protecting the general public from the potential consequences of alcohol abuse by young persons.
It is true, as the City points out, that we are not bound by the decisions of lower federal courts. Abela v. Gen. Motors Corp., 469 Mich. 603, 606, 677 N.W.2d 325 (2004). However, both Spencer and Platte thoroughly discussed the issues presented in the instant case and specifically refute the City's argument that the "special needs" exception to the search warrant requirement should apply.
"Both the United States Constitution and the Michigan Constitution guarantee
"Ordinarily, searches or seizures conducted without a warrant are unreasonable per se. And, generally, when evidence has been seized in violation of the constitutional prohibition against unreasonable searches and seizures, it must be excluded from trial." People v. Dagwan, 269 Mich.App. 338, 342, 711 N.W.2d 386 (2005) (citation omitted). "There are, however, a number of recognized exceptions to the warrant requirement...." Id. Among others, these exceptions include "exigent circumstance[s], searches incident to a lawful arrest, stop and frisk, consent, and plain view. Each of these exceptions, while not requiring a warrant, still requires reasonableness and probable cause." People v. Brzezinski, 243 Mich.App. 431, 433-434, 622 N.W.2d 528 (2000) (citation omitted). In addition, under "the governmental `special needs' or regulatory exception," a "warrant or probable cause will not be required ... as long as the searches meet `reasonable legislative or administrative standards.'" People v. Woods, 211 Mich.App. 314, 317, 535 N.W.2d 259 (1995), quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).
In Spencer, 292 F.Supp.2d at 935, the federal district court considered a Bay City ordinance that provided:
Bay City defended its ordinance against a claim that it violated the Fourth Amendment by asserting "that the so-called `special needs' exception excuses the requirement for a search warrant, and the searches are reasonable because they are based on reasonable suspicion." Id. at 939. The Spencer court disagreed, concluding that
Moreover, as the Spencer court explained, the "Supreme Court made clear ... that laudable, non-criminal purposes of a law authorizing warrantless searches will not exempt the practice from the traditional mandate of a warrant issued upon probable cause when an objective to gather evidence also exists." Id. at 942; see also Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001). The Spencer court concluded that "Bay City's ordinance cannot be justified under the `special needs' exception to the requirement that a search of a person, including a search and seizure of breath samples, must be authorized by a judicial officer through the search warrant process." Spencer, 292 F.Supp.2d at 942.
Bay City had also argued that "the warrantless searches called for by the ordinance are justified by exigent circumstances, due to the length of time required in Bay City to obtain a search warrant for breath samples." Id. at 939. However, the Spencer court found that exigent circumstances must be considered on a case-by-case basis because the "time necessary to obtain a warrant in cases that fall within the scope of the ordinance does not create an exigency as a matter of legislative fact, nor does it serve to establish an automatic exemption from the warrant requirement." Id. at 944.
In Platte, 504 F.Supp.2d at 230-231, the federal district court considered MCL 436.1703(6), which provides:
In Platte, several plaintiffs brought claims under 42 U.S.C. 1983 against Thomas Township and other municipalities, as well as the Governor of Michigan and the director of the Michigan State Police, arguing that MCL 436.1703(6) was "unconstitutional insofar as it authorized police officers to compel minors to submit to breath tests for alcohol in the absence of a warrant or circumstances excusing the requirement of a search warrant." Platte, 504 F.Supp.2d at 230. In response, the defendants argued, as does the City in the case at bar, "that the statute is constitutional on its face because warrantless searches pursuant thereto can be justified on the basis of exigent circumstances and special needs." Id. at 231.
Relying on Spencer and Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616-617, 109 S.Ct. 1402, 103 L.Ed.2d
The Platte court went on to observe that MCL 436.1703(6)
Although the defendants in Platte argued that the "exigent circumstances" exception to the search warrant requirement should apply, as did Bay City in Spencer, the Platte court explained that
One of the defendants in Platte contended that "exigent circumstances always exist as a matter of law because search warrants cannot be obtained before a teenager's blood alcohol content dissipates. Therefore, ... the statute is valid and the procedures employed by [the] officers thereunder are constitutional." Id. at 241. Again, the court rejected the "exigent circumstances" argument, explaining that it
The Platte court concluded that the defendant in question had "not demonstrated that [MCL] 436.1703(6) can survive constitutional challenge by means of a blanket exigent circumstances exception to the Warrant Clause of the Fourth Amendment...." Id. at 245.
With respect to the defendants' "special needs" argument, the Platte court stated that the "Supreme Court has held that some searches can be reasonable absent both a warrant and exigent circumstances, specifically `when "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable."'" Id. at 238 (citations omitted). Referring to the decision in Spencer, 292 F.Supp.2d at 939-941, the Platte court observed, "It is enough to note that the weight of authority relegates the `special needs' exception to non-criminal governmental activity." Platte, 504 F.Supp.2d at 239. The court concluded that MCL 436.1703(6) "`endorses procedures
The decisions in Spencer and Platte are both well reasoned and consistent with existing Fourth Amendment law. Accordingly, we find Spencer and Platte to be persuasive, see Abela, 469 Mich. at 607, 677 N.W.2d 325, and conclude that Troy Ordinance § 98.10.03 is unconstitutional on its face. Moreover, we agree with the Spencer court that "[t]here is nothing `special' in the need of law enforcement to detect evidence of ordinary criminal wrongdoing" and that "`reasonableness generally requires the obtaining of a judicial warrant.'" Spencer, 292 F.Supp.2d at 941 (citation omitted). The "special needs" exception to the search warrant requirement is quite simply not applicable on the facts of this case. See id. at 941-942.
The City argues that even if Troy Ordinance § 98.10.03 is unconstitutional on its face, the district and circuit court decisions should still be reversed because defendant's Fourth Amendment rights were not violated. Specifically, the City argues that the PBT did not constitute a search within the meaning of the Fourth Amendment and that when the police asked defendant to submit to the PBT, he consented. In addition, the City contends that even if the PBT was a search, the likely dissipation of defendant's bodily alcohol content was an exigency that justified the warrantless search in this case.
As an initial matter, we disagree with the City's contention that because a PBT is different and less intrusive than a Breathalyzer test, it is not a search for purposes of the Fourth Amendment. "A search within the meaning of the Fourth Amendment `occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.'" Jones, 279 Mich.App. at 91, 755 N.W.2d 224, quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). "Because the Fourth Amendment protects people, as opposed to places or areas, ... a search for purposes of the Fourth Amendment occurs when the government intrudes on an individual's reasonable, or justifiable, expectation of privacy." People v. Taylor, 253 Mich.App. 399, 404, 655 N.W.2d 291 (2002). "Indeed, what an individual `"seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."'" Id., quoting People v. Clark, 133 Mich.App. 619, 625, 350 N.W.2d 754 (1983), in turn quoting Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
As discussed previously, the Spencer court held that a PBT was a search under the Fourth Amendment: "It is well established that the taking of a breath sample to test for the presence of alcohol constitutes a search under the Fourth Amendment.
Nor can we agree with the City's argument that defendant consented to the PBT and that a search warrant was consequently not required. "To validate an otherwise unreasonable search or seizure,... consent must be unequivocal, specific, and freely and intelligently given." Dagwan, 269 Mich.App. at 342, 711 N.W.2d 386. "Consent [to search] is not voluntary if it is the result of coercion or duress." People v. Bolduc, 263 Mich.App. 430, 440, 688 N.W.2d 316 (2004).
"`When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.'" Farrow, 461 Mich. at 208, 600 N.W.2d 634 (citation omitted).
In the case at bar, the district court did not address the issue of consent, which generally presents a question of fact and normally involves credibility determinations. Nonetheless, it is clear from the record that defendant was never asked for his consent. Although there was conflicting testimony regarding which officer administered certain of the PBTs in this case, both officers testified that they did not ask defendant and the other young adults for their consent. Defendant testified, as did the others, that he had not consented to the PBT and that he had felt as though he had no choice in the matter. Indeed, defendant testified that he believed that he would go to jail if he refused to submit to the PBT.
The record plainly establishes that defendant was never asked for his consent and did not give his consent at any time. The City does not cite any caselaw to suggest that a mere failure to object to a proposed search constitutes actual consent. Nor could the City do so, as no such authority exists. Indeed, as noted earlier, the prosecution bears the burden of proving that consent to search was freely and voluntarily given. Farrow, 461 Mich. at 208, 600 N.W.2d 634. "`This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.'" Id. (citation omitted). Defendant did not consent to the police officers' administration of the PBT in this case.
Lastly, we disagree with the City's argument that there were exigent circumstances that precluded the need for a search warrant in the present case. The City asserts that because the Troy police were dealing with a group of several young adults, it would have taken too long to secure search warrants authorizing the administration of a PBT to each of the minors. Specifically, the City asserts that during the time it would have taken to obtain search warrants, the minors' bodily alcohol content would have dissipated and any evidence of illegal alcohol consumption would have been lost.
The existence of exigent circumstances must be considered on a case-by-case basis. The "exigent circumstances" exception to the search warrant requirement provides that the police may search without a warrant in cases of "`actual emergency'" if there are "`specific and objective facts indicating that immediate action is necessary to (1) prevent the imminent destruction of evidence, (2) protect the police officers or others, or (3) prevent the escape of a suspect.'" People v. Beuschlein, 245 Mich.App. 744, 749-750, 630 N.W.2d 921 (2001) (citation omitted).
As in Platte, we perceive no exigencies in the case at bar that would have permitted a PBT search without a valid search warrant. Similar to the City's argument in this case, one of the defendants in Platte complained of "the rapid rate of dissipation of alcohol in the bloodstream compared to the time it takes its police officers to obtain a search warrant." Platte, 504 F.Supp.2d at 242. The Platte court found that the "record in this case ... fails to establish that the evidence sought `would probably be destroyed within the time necessary to obtain a search warrant' when measured against the time the ... police officers loitered at the scene in this case." Id. (emphasis deleted; citation omitted). Moreover, while one of the police officers in Platte testified that "a search warrant could be obtained ... in an hour and fifteen minutes," an expert witness testified that "alcohol would not dissipate from the average male's blood until two hours and twenty minutes after consumption ceases; for an average female, dissipation would not occur until three hours after consumption." Id. at 243. The Platte court concluded that "the record in this case establishes that the ... police officers had time to request a search warrant to take breath samples from [the defendants]." Id.
The PBT administered to defendant in this case constituted a search within the meaning of the Fourth Amendment, to which defendant did not consent. None of the exceptions to the search warrant requirement applied, and the police officers were accordingly required to seek and obtain a valid search warrant before administering the PBT to defendant. The district court did not err by ruling that Troy Ordinance § 98.10.03 is unconstitutional on its face or by suppressing the evidence collected from defendant during the warrantless PBT search. Nor did the circuit court err by denying the City's application for leave to appeal.
The Platte court noted that, on the specific facts of that case, there remained "fact questions on the material issue of whether exigent circumstances existed." Id.