Defendant appeals by leave granted
i
This appeal arises from a traffic stop of defendant’s vehicle on September 7, 2010, in the city of Troy. The record establishes that a confidential informant (Cl), who was cooperating with United States Immigration and Customs Enforcement (ICE), had agreed to purchase a large quantity of cocaine from defendant in the city of Troy. With prior knowledge of the Cl’s agreement, the Troy police stopped defendant’s vehicle, asked defendant to get out of the vehicle, and thereafter performed a pat-down search for weapons and a consensual vehicle search. Officer Neil Piltz searched the driver’s compartment, underneath the seats, the top of the seats, and behind the driver’s seat. Officer Piltz then talked to defendant while another officer conducted a search using a canine. No drugs were located in the vehicle during this initial search.
Throughout his conversation with Officer Piltz, defendant had his hands in his pants pockets. Officer Piltz testified at the preliminary examination that when defendant removed his hands from his pockets, he noticed a bulge in defendant’s right pants pocket—
Approximately 20 minutes lapsed from the time defendant was pulled over to the time Officer Piltz found the cocaine and arrested defendant. Later and contemporaneous with his arrest, defendant waived his Miranda
ii
Defendant was charged with 17 counts in total. Count I (possession with intent to deliver 50 to 449 grams of cocaine) was based on the recovery of cocaine from defendant’s pocket at the time of the arrest, and Counts II through XVII related to the drugs, weapons, and contraband found in his home. The district court began a preliminary examination and heard testimony and argument on four separate hearing dates, May 10,
At the July 12, 2011 hearing, ICE agents Brian Helmerson and Julia Harris testified regarding the information they received from the Cl and the surveillance conducted on defendant. Agent Helmerson testified that the Cl had been used previously as a Cl in three ICE investigations. On the prior occasions, the Cl had identified individuals involved in narcotics trafficking and then arranged meetings to conduct controlled-substance transactions. According to Agent Helmerson, the Cl’s information resulted in the seizure of controlled substances, seven arrests, and five convictions.
Throughout the day leading up to defendant’s arrest, ICE agents heard the Cl talking on the phone with defendant, who allegedly told the Cl he was going to retrieve the cocaine after work and deliver it to the Cl in the city of Troy. A surveillance team then saw defendant leave his work location and approach a house in a southwest Detroit location considered to be in a high-intensity drug-trafficking area. After defendant had arrived in southwestern Detroit, the Cl received a communication from defendant indicating that he was in possession of the cocaine. Defendant then drove toward the specific Troy location at which defendant and the Cl had agreed to meet.
When defendant was seen driving toward the city of Troy, Agent Helmerson contacted Sergeant Salter to turn over surveillance of defendant to the Troy Police Department. Agent Helmerson told Sergeant Salter the specific time that defendant’s vehicle would enter the city and provided a photograph of defendant. Sergeant Salter observed a vehicle matching the description and displaying the license plate number of defendant’s vehicle, which was moving in the direction that Sergeant Salter had been told defendant’s vehicle would be traveling, and relayed this information to Officer Piltz, who also saw defendant’s vehicle traveling in that specific direction. Officer Piltz then conducted the traffic stop.
The defendant’s stop was reasonable. His frisk was reasonable under Terry.[4 ] The search of his car was reasonable because I think at the moment he was stopped, based on the case law and the, the previous use of the informant and the informant having information that the defendant had the cocaine on his person.
At the moment of the stop I agree with the prosecution that they didn’t need his consent to, to search his car. That they could have arrested him for probable cause for being in possession of narcotics with intent to distribute. And search the car and have searched him.
Further, the district court articulated that, because the police found no contraband after they frisked defendant and searched his vehicle, a reasonable person would not have concluded that the confidential informant was correct. The district court held:
[E]verything that occurred post this stop and before the moment of the second search, which in my opinion the search — the going into the pants was definitely a search. It was not Terry. It was without a search warrant. And the probable cause had absolutely dissipated by the time he went into the pants before the second search.
At the October 11, 2011 hearing, the district court heard testimony focused on the remaining counts in order to determine whether defendant’s statements to the police after he was arrested were fruits of an unlawful arrest. At this hearing Officer Scott Lamilza testified that he used defendant’s statements from the interview following his arrest to obtain the search warrant for defendant’s home. On the basis of this testimony, the district court suppressed defendant’s statements as fruits of an unlawful arrest. The district court concluded that, absent evidence of the cocaine recovered from defendant’s pocket and his statements, there was no probable cause to support the issuance of the search warrant for defendant’s home. Accordingly, the district court dismissed the remaining Counts II through XVII.
The prosecution appealed the ruling in the circuit court. The circuit court concluded that, under the totality of the circumstances, “the information provided by the informant was sufficiently corroborated and supplemented by ICE Agents’ and Troy Officers’ investigation to warrant a finding of probable cause or ‘a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” (Citation omitted.) The circuit court further found that the probable cause did not dissipate as a result of Officer Piltz’s failure to find cocaine during the pat-down and vehicle searches and that the police officers’ failure to find the cocaine during the pat-down and vehicle searches did not constitute contrary facts supporting the dissipation of the
On July 12, 2012, defendant tendered a conditional plea of guilty regarding all 17 counts. Defendant preserved his right to challenge the circuit court’s ruling.
hi
On appeal, defendant contends that the circuit court erred by ruling that probable cause to arrest him existed at the time of the search, and even if probable cause did exist, it dissipated after the unsuccessful pat-down and vehicle searches. Further, defendant contends that because he was not arrested before the search and the police only arrested him after unlawfully recovering cocaine from his pants pocket, the search did not fall within the exception to the warrant requirement applicable to a search incident to an arrest. We disagree.
A
This Court reviews a trial court’s factual findings in a suppression hearing for clear error. People v Jenkins,
B
Both the United States and the Michigan Constitutions protect persons against unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11; People v Bolduc, 263 Mich App 430, 437; 688 NW2d 316 (2004). “The lawfulness of a search or seizure depends on its reasonableness.” People v Beuschlein, 245 Mich App 744, 749; 630 NW2d 921 (2001). A custodial arrest based on probable cause is not an unreasonable intrusion under the Fourth Amendment. People v Champion, 452 Mich 92, 115; 549 NW2d 849 (1996). An arresting officer, or collectively the officers involved in an investigation (“the police team” approach), must possess information demonstrating probable cause to believe that an offense has occurred and that the defendant has committed it. MCL 764.15; see People v Dixon, 392 Mich 691, 696-698; 222 NW2d 749 (1974); People v Mackey, 121 Mich App 748, 753-754; 329 NW2d 476 (1982); United States v Perkins, 994 F2d 1184 (CA 6, 1993).
Our Supreme Court, in People v Levine, 461 Mich 172, 183; 600 NW2d 622 (1999), recognized that Michigan caselaw is consistent with federal precedent regarding the existence of probable cause on the basis of informant tips. The existence of probable cause is determined by the totality of the circumstances. Id. at 185, citing Illinois v Gates, 462 US 213, 238; 103 S Ct 2317; 76 L Ed 2d 527 (1983). In making an arrest without a warrant, an officer “ ‘may rely upon information received through an informant, rather than upon his direct observations, so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge.’ ” Gates, 462 US at 242, quoting Jones v United States, 362 US 257, 269; 80 S Ct 725; 4 L Ed 2d 697 (1960), overruled on other grounds United States v Salvucci, 448 US 83, 85; 100 S Ct 2547; 65 L Ed 2d 619 (1980); see also Levine, 461 Mich at 182 (recognizing that an officer making an arrest without a warrant may rely on a tip, rather than direct observations, as long as the tip is reasonably corroborated by other matters within the officer’s knowledge). An “informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report,” and they can be used to determine whether probable cause exists. Levine, 461 Mich at 180, quoting Gates, 462 US at 230.
In the instant case, the testimony at the preliminary examination showed that the Cl was credible and reliable. The Cl had provided narcotics-trafficking information and arranged controlled-substances transactions in the past, resulting in seven arrests and five convictions. Accordingly, the information the Cl provided about the arrangement to purchase cocaine from defendant was highly relevant to establishing probable cause to believe that defendant possessed a large quantity of cocaine. Levine, 461 Mich at 180, citing Gates, 462 US at 230. Furthermore, not only had the information provided by the Cl been credible and reliable in the past, the information the Cl provided about defendant was also reasonably corroborated by the observations of defendant made by both the ICE agents and the Troy police officers. After defendant allegedly reported to the Cl by phone that he was going to retrieve the cocaine after work and deliver it to the Cl in Troy, the surveillance team saw defendant drive from work, stop in a high-intensity drug-trafficking neighborhood, and then drive toward the specific location at which defendant and the Cl had agreed to meet. In addition, the Cl reported that defendant had confirmed his possession of the cocaine before he began driving toward Troy. Given that the ICE agents and the Troy police officers reasonably corroborated the information provided by the Cl, the police properly relied on this information in making an arrest without a warrant. Gates, 462 US at 242; see also Levine, 461 Mich at 182.
On the basis of the testimony provided by the ICE agents and the Troy police officers, probable cause to arrest defendant existed at the time defendant’s vehicle was initially stopped by Officer Piltz. The collective information known by the ICE agents and the Troy
D
Alternatively, defendant contends that, even if probable cause existed, it dissipated after the police performed a pat-down search for weapons and found no cocaine after searching his vehicle. Again, the district court’s ruling that probable cause dissipated and the circuit court’s holding that it did not are subject to review de novo. Williams, 472 Mich at 313. The district court relied on our Supreme Court’s decision in People v Russo, 439 Mich 584; 487 NW2d 698 (1992). In Russo, the Court held:
Once established, probable cause to arrest, which is concerned with historical facts, is likely to continue indefinitely, absent the discovery of contrary facts. By contrast, it cannot be assumed that evidence of a crime will remain indefinitely in a given place. Thus, “staleness” is not a separate doctrine in probable cause to search analysis. It is merely an aspect of the Fourth Amendment inquiry. [Id. at 605.]
Although the district court viewed the failure to find the cocaine during the initial pat-down for weapons and vehicle search as facts supporting the dissipation of probable cause, the circuit court held that these facts demonstrated that it was more probable that the cocaine was on defendant. The evidence supports the circuit court’s conclusion that probable cause did not dissipate. The ICE agents and the police received information from a reliable and credible informant that
E
Having found the arrest to be lawful, we hold that the search incident to that arrest, which revealed the cocaine in defendant’s pocket, was also lawful. Generally, a search conducted without a warrant is unreasonable unless it was conducted pursuant to an established exception to the warrant requirement. Beuschlein, 245 Mich App at 749. A search incident to an arrest is an exception to the warrant requirement, and may occur whenever there is probable cause to arrest. People v LaBelle, 478 Mich 891 (2007). There are two historical rationales for the “search incident to arrest” exception: “(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial.” Knowles v Iowa, 525 US 113,116; 119 S Ct 484; 142 L Ed 2d 492 (1998).
F
Defendant further asserts that no arrest was going to occur until after the police searched him the second time and, as a result, the principles regarding searches
An arresting officer’s subjective characterization of the circumstances surrounding an arrest does not determine its legality. Rather, probable cause to justify an arrest has always been examined under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved. [Id.]
Because the surrounding facts and circumstances were sufficient to warrant a prudent individual to believe that defendant had committed an offense, the district court’s conclusion about the subjective beliefs of the police officers with regard to whether probable cause existed is not outcome-determinative here.
Defendant also contends that the stop was an investigatory stop and the initial pat-down was a justified Terry pat-down; however, after the officers conducted a consensual search of his vehicle, the second pat-down was no longer justified under Terry, thus making it an illegal search. Despite defendant’s contention, this case does not rest upon “reasonable suspicion,” as was the case in Terry v Ohio, 392 US 1, 26-27; 88 S Ct 1868; 20
IV
For the foregoing reasons, we conclude that the circuit court did not err by reversing the district court’s suppression of the evidence regarding the cocaine. The police had probable cause to arrest defendant and the search incident to the lawful arrest was valid.
Affirmed.
People v Nguyen, unpublished order of the Court of Appeals, entered November 21, 2012 (Docket No. 312319).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Officer Piltz had previously testified during the May 10,2011 hearing that he initiated a traffic stop of defendant’s vehicle and used his
Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
Although judicial decisions from foreign jurisdictions are not binding, we find this opinion from the United States Court of Appeals for the Sixth Circuit persuasive. Hiner v Mojica, 271 Mich App 604, 611-612; 722 NW2d 914 (2006).