UNITED STATES оf America, Plaintiff-Appellee, v. Jose GALAVIZ, also known as Jose Galaviz, Jr., Defendant-Appellant.
No. 07-2518
United States Court of Appeals, Sixth Circuit
May 6, 2011
Before: MERRITT, ROGERS, and WHITE, Circuit Judges.
Argued: Jan. 14, 2011.
Instead of blindly relying on KCS‘s stated reasons for Farhner‘s discharge, the Plan Administrator ultimately reviewed the evidence and determined that Farhner was in fact insubordinate. Farhner‘s main contention on appeal is that this decision is inconsistent with the technical requirements of the FMLA. Although the administrative record does show some contradictory evidence regarding whether both Farhner and KCS complied with the FMLA, the evidence is not so one-sided that the Plan Administrator‘s decision to deny Farhner benefits can be considered arbitrary and capricious. See Schwalm, 626 F.3d at 312 (concluding that although the administrative record includes contradictory evidence, “the evidence suggesting that Schwalm suffered from a continuing disability is not so one-sided that the decision to deny benefits can be considered arbitrary or capricious”).
My purpose in pointing out that the Plan Administrator ultimately conducted an independent review of Farhner‘s discharge is to highlight that this is not а case where the Plan Administrator blindly relied on the employer‘s stated reasons for its actions. Because the Plan Administrator in fact engaged in an independent review, the lead opinion did not need to reach the issue of whether the Plan Administrator was required to look beyond the language of the Plan and KCS‘s stated reasons for the discharge. The lead opinion‘s conclusion that the Plan Administrator had no obligation to conduct an independent review is therefore not necessary to its holding, and is thus dicta. See United States v. Swanson, 341 F.3d 524, 530 (6th Cir. 2003) (“[T]his holding might be considered dicta in that it was not necessary to the determination of the issue on appeal.”).
Moreover, the very fact that the Plan Administrator made an independent inquiry into the justification for Farhner‘s termination is evidence that it likely recognized its duty to do so under the Plan.
In sum, I concur in the judgment reached, but I respectfully disagree with portions of the lead opinion‘s analysis.
OPINION
HELENE N. WHITE, Circuit Judge.
Defendant Jose Galaviz appeals his conviction and sentence following his plea of guilty to being a felon in possession of a firearm,
ARGUED: Rod O‘Farrell, Saginaw, Michigan, for Appellant. Margaret Marie Smith, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Rod O‘Farrell, Saginaw, Michigan, for Appellant. Jennifer J. Sinclair, Assistant United States Attorney, Detroit, Michigan, for Appellee.
I
On December 27, 2006 at 2:46 AM, a woman placed a 911 call from the Admiral gas station on Dixie Highway in or near Bridgeport, Michigan reporting that she had just been robbed at gunpoint. The caller, who was distraught and intermittently sobbing, reported that a black male and/or a black female had held her up at gunpoint and had left the scene in a “white car.” After asking a series of clarifying questions, the 911 operator asked the caller, “can you describe the—would it have been like a white Cavalier?” The caller, while sobbing, replied “yes,” but then after several unintelligible words, told the dispatcher that he should talk to her sister because she would know better what kind of car it was. The sister took the phone
At 2:48 AM, a dispatcher broadcast via police radio that the suspects were “last seen driving a white vehicle south on Dixie.” When asked by an officer to clarify the description, the dispatcher said, “all I have is a white vehicle, sir.” In the next few minutes, several officers made radio transmissions indicating that they were investigating white сars they encountered on the road.
Saginaw County Sheriff‘s Deputy Kurt Webber was on patrol in a squad car during this time and was listening to these transmissions. At the intersection of Webber Street and Genesee Avenue in Saginaw,1 Deputy Webber saw a white Lincoln Town Car stopped at a traffic light facing westbound on Webber, across Genesee from him. The driver of this car was Defendant Galaviz. Thinking that it might be the car described in the transmissions about the robbery, Deputy Webber drove past the white Lincoln and then turned his car around to follow it. Webber testified that after he turned his car around the Lincoln “accelerated away from [him]” and, according to his visual estimation, exceeded the posted 25 mile per hour speed limit.2 Deputy Webber followed the car as it made several turns in a residential area.
The white car then turned into a driveway at 332 Carter Street and parked. Deputy Webber pulled his car up at the base of the driveway, blocking the white car. When Webber exited his vehicle, the driver of the white Lincoln, Galaviz, was already out of his car and walking toward the front door of the house. Webber оbserved that Galaviz “looked like a Hispanic male,” not a black male or black female as the suspect was described in the radio transmissions. Webber ordered Galaviz to return to his vehicle. When Galaviz continued to walk toward the house, Webber activated the overhead flashing lights on his car. Webber ordered Galaviz to stop several times. Galaviz repeatedly stated that he “didn‘t do anything,” as he walked up a wheelchair ramp to the front door of the house.
According to Webber, when Galaviz reached the front door, he “knocked,” “kicked” and “banged” on the door and was “screaming and yelling for someone inside to let him in.” Webber ordered Galaviz to stop and to get on the ground, and then drew his taser. Galaviz refused to stop or to get on the ground. Webber warned Galaviz that if he entered the house, Webber would employ the taser on him. Soon after this warning, the door opened and Galaviz began to enter the house; Webber testified that it was unclear to him whether Galaviz forced the door open or was let into the house. Webber fired the taser, which struck Galaviz. Galaviz screamed and then the door closed. When the door closed, Webber radioed for
While Galaviz was still inside the house, police officers at the scene made a visual inspection of the white car parked in the driveway and observed what looked like part of a handgun sticking out from under the front seat. Unable to obtain car keys from Galaviz, police called a wrecker service to unlock the car. Once the car was unlocked, they seized a revolver located on the driver-side floor, partially under the seat.
Galaviz was indicted on a federal charge of being a felon in possession of a firearm in violation of
II
A. Standard of Review
This Court reviews a district court‘s factual findings in a decision on a motion to suppress for clear error and its legal conclusions de novo. United States v. Adams, 583 F.3d 457, 463 (6th Cir. 2009). “A factual finding will only be clearly erroneous when, although there may be evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999)). “When a district court has denied a motion to suppress, this Court reviews the evidence in the light most likely to support the district court‘s decision.” Id. (internal quotation marks omitted).
B. The District Court‘s Order Denying Galaviz‘s Mоtion to Suppress
The district court denied Galaviz‘s motion to suppress solely on the basis that Deputy Webber “had specific and articulable facts, under the totality of the circumstances, to justify stopping Defendant to investigate whether he committed the robbery” in accordance with the standard set out in Terry v. Ohio, 392 U.S. 1, 21-22 (1968). United States v. Galaviz, No. 07-20009-BC, 2007 WL 2324949, at *1 (E.D. Mich. Aug. 14, 2007). In order to make an investigative Terry stop without a
The district court identified several relevant factors justifying the Terry stop:
(1) the short time (about ten minutes or less) between the occurrence of the armed robbery and Webber‘s observation of Defendant‘s vehicle; (2) the close geographic proximity of the location of the robbery and the site where Webber observed Defendant‘s car; (3) the color of the vehicle that corresponded to that announced by the police dispatcher; and (4) the minimal traffic due to the hour of the night. Those details sufficed to justify Webber‘s interest in further investigation. Additionally, as stated on the record, Defendant rapidly accelerated his vehicle away from a marked police car that turned to follow him, and he later disregarded the officer‘s directives to stop. Also, Defendant knocked, kicked, and banged on the door of a residence to which he sought entry, which showed his apparent lack of authorization to enter the residence.
Galaviz, 2007 WL 2324949, at *1. The court did not, however, provide any discussion of the basis for upholding the warrantless search of Galaviz‘s car, apparently assuming that if Webber had reasonable suspicion to support an investigative seizure of Galaviz, then the search of the car and the seizure of the gun would be justified. Galaviz did not challenge the search of the car and seizure of the gun on separate grounds, apparently making the same assumption. In opposing the motion to suppress, the government argued that the seizure of the gun was not a fruit of the Terry stop or the arrest, and the plain-view doctrine provided an alternative ground on which to uphold the seizure of the gun. Galaviz argued in reply that officers were not lawfully in a position from which to view the gun, and therefore that the plain-view doctrine did not apply. The district court did not address these arguments.
Although we agree that Webber had reasonable suspicion to pursue Galaviz‘s car and to stop it to investigate whether it was the car involved in the robbery,5 once Webber observed Galaviz‘s physical features and saw that he was a Hispanic male, and thus did not match the description of the robbery suspect as a black male or black female, the reasonableness of the suspicion was undermined. Indeed, Webber testified at the suppression hearing that Galaviz “looked like a Hispanic male,” and that he was able to clearly identify
Whether reasonable suspicion was revived by subsequent events, including Galaviz‘s failure to heed Webber‘s commands to stop, Galaviz‘s kicking, banging, and screaming in an attempt to gain entry to the house, and Webber‘s lack of clarity as to whether Galaviz forced his way into the house or was permitted to enter by the residents, is a close question we need not reach because, even assuming arguendo that Webber lacked reasonable suspicion to seize Galaviz, discovery of the gun is not a “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). The gun may only be suppressed if its discovery is a “fruit” of the seizure of Galaviz. “[T]he ‘fruit of the poisonous tree’ doctrine ... bars the admissibility of evidence which police derivatively obtain from an unconstitutional search or seizure.” United States v. Williams, 615 F.3d 657, 668 (6th Cir. 2010) (quoting United States v. Pearce, 531 F.3d 374, 381 (6th Cir. 2008)). Not all evidence the discovery of which shares some causal connection to an unconstitutional seizure should be suppressed, however. The Supreme Court has never held that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Hudson v. Michigan, 547 U.S. 586, 592 (2006) (quoting Wong Sun, 371 U.S. at 487-88) (internal quotation marks omitted).
Here, the gun was discovered by police officers who arrived at the scene in response to Webber‘s call for backup. Those officers observed the gun either while Webber was still searching for Galaviz inside the house, or contemporaneous with the arrest of Galaviz in the basement. They discovered the gun because it was in plain view, and not as a result of anything Galaviz said or anything found on Galaviz‘s persоn after his detention. Although Webber‘s pursuit of Galaviz was a but-for cause of the officers’ discovery of the gun, the gun is not a fruit of the seizure as defined by Wong Sun and progeny.
C. The Plain-View Exception
Although the district court‘s order denying Galaviz‘s motion to suppress addressed only the Terry issue, we may uphold the denial of the motion to suppress on any ground supported by the record. United States v. Higgins, 557 F.3d 381, 389 (6th Cir. 2009); United States v. Pasquarille, 20 F.3d 682, 685 (6th Cir. 1994). We analyze the search of Galaviz‘s car and seizure of the gun under the automobile and plain-view exceptions to the Fourth Amendment‘s warrant requirement.
The Fourth Amendment imposes a per se requirement that police officers obtain a warrant prior to conducting a
Under the plain-view doctrine, “if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” United States v. Herndon, 501 F.3d 683, 692 (6th Cir. 2007) (quoting Dickerson, 508 U.S. at 375) (quotation marks omitted). “[A] motorist has ‘no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers.’” United States v. Campbell, 549 F.3d 364, 373 (6th Cir. 2008) (quoting United States v. Bradshaw, 102 F.3d 204, 211 (6th Cir. 1996) and Texas v. Brown, 460 U.S. 730, 740 (1983)) (alteration in original).
Under the plain-view doctrine, we must first determine whether police were lawfully in a position from which to view the gun. Galaviz‘s car was parked in a short driveway adjacent to the house in which Galaviz was eventually arrested. A photo admitted into evidence аt the suppression hearing shows that the driveway was at least two car-lengths long, with a distance of about one car-length from the sidewalk to the corner of the house, and another car-length extending along the side of the house. The driveway was therefore close enough to the house to possibly constitute curtilage protected by the Fourth Amendment. See United States v. Jenkins, 124 F.3d 768, 772 (6th Cir. 1997) (“[T]he curtilage is considered part of the house itself for Fourth Amendment purposes.”). Given the characteristics of the driveway, however, we find that it was not within the protected curtilage of the house. Following guidance from the Supreme Court, we look to four factors to evaluate whether area surrounding the home constitutes curtilage:
(1) “the proximity of the area claimed to be curtilage to the home”; (2) “whether the area is included within an enclosure surrounding the home”; (3) “the nature of the uses to which the area is put”; and (4) “the steps taken by the resident to protect the area from observation by people passing by.”
Id. (quoting United States v. Dunn, 480 U.S. 294, 301 (1987)); see also United States v. Estes, 343 Fed. Appx. 97, 100 (6th Cir. 2009)
We next must determine whether the incriminating nature of the gun was immediately apparent. If officers were able to clearly identify the object protruding from beneath the driver‘s-side seat as part of a handgun, then this prong of the plain-view test is satisfied. See Campbell, 549 F.3d at 373 (upholding the seizure of a handgun from a vehicle under the plain-view doctrine when the butt of the gun was visible under the passenger seat to an officer standing outside the car). In Michigan, it is a crime to carry a pistol in a vehicle without a firearm license.
Q After [Galaviz] went in and was Tasered, what led to your attention being drawn to that vehicle?
A [by Deputy Webber] It was observed by the city officers; they observed a handgun through the window stuck up under the front seat.
Q Did you then go to the vehicle and look for yourself?
A Yes, I did.
Q And what did you see?
A I saw the handled portion of what appeared to be a revolver sticking out underneath the driver‘s seat.
Missing from the transcript is the testimony of Sergeant Przybylski, who apparently also discussed viewing the gun. In addition to the officers’ testimony, the government entered into evidence a photo showing a revolver sticking out from under the front seat of a car. However, none of the testimony preserved in the hearing transcript serves to authenticate that photo, and it appears that the photo was taken after the car door was forced open, from a position below window level and near the floor of the car, and thus does not indicate whether the gun was actually visible through the window of the locked car.6
The remaining question under the plain-view doctrine is whether the officers had a lawful right of access to the interior of thе locked car so as to seize the gun. This turns on application of the automobile exception. The automobile exception allows a warrantless search of an automobile if officers have probable cause to believe the vehicle contains evidence of a crime. Smith, 510 F.3d at 647. Here, that probable cause was supplied when officers viewed the gun in the car, which constitutes a violation of
See United States v. Tilmon, 15 F.3d 1094, 1994 WL 2774, at *1-3 (9th Cir. 1994) (unpublished table opinion) (upholding search of locked car pursuant to the automobile exception where officer gained access “either by smashing a window or using a coathangar”); United States v. Perry, 925 F.2d 1077, 1079-80 (8th Cir. 1991) (upholding search of locked car under the automobile exception where officer gained entry by using a “slim-jim”); see also United States v. Bishop, 338 F.3d 623, 626-28 (6th Cir. 2003) (holding that plain-view exception provided officer with authority to seize gun by reaching through open window of unattended car); United States v. Haynes, 301 F.3d 669, 676-77 (6th Cir. 2002) (assuming that automobile exception could justify officer‘s entry into locked car using defendant‘s key (without defendant‘s consent) given probable cause, but finding that no probable cause existed); United States v. Weatherspoon, 82 F.3d 697, 697-99 (6th Cir. 1996) (upholding, under plain-view exception, officer‘s entry into locked car after seeing barrel of gun sticking out from under the seat).
Therefore, we affirm the district court‘s denial of Galaviz‘s motion to suppress.
III
Galaviz challenges his 70-month sentence on the ground that the district court miscalculated his criminal-history category. This challenge is not foreclosed by the language of the plea agreement,
Although Galaviz does not categorize his challenge to his sentence, we will review the sentence for procedural and substantive reasonableness. See United States v. Deitz, 577 F.3d 672, 697 (6th Cir. 2009). Galaviz‘s “contention that the district court improperly calculated the Guidelines range is procedural in nature.” Id. On appeal, this Court applies an abuse-of-discretion standard to reviewing the reasonableness of the defendant‘s sentence. United States v. Moon, 513 F.3d 527, 539 (6th Cir. 2008). “In reviewing a district court‘s application of the Sentencing Guidelines, this Court will ‘aсcept the findings of fact of the district court unless they are clearly erroneous and [will] give due deference to the district court‘s application of the Guidelines to the facts.’” Id. at 539-40 (quoting United States v. Williams, 355 F.3d 893, 897-98 (6th Cir. 2003)) (alteration in original). This Court reviews the district court‘s legal conclusions regarding the sentencing guidelines de novo. Id. at 540.
Galaviz argues that he should have been assigned a criminal history category of III instead of IV. With an offense level of 21, the Guidelines range for criminal history category IV is 57-71 months; for category III the range would be 46-57 months. See
Sentencing Guidelines
Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant‘s commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period.
Revocation of probation, parole, [or] supervised release ... may affect the time period under which certain sentences are counted as provided in § 4A1.2(d)(2) and (e). For the purposes of determining the applicable time period use the following: (i) in the case of an adult term of imprisonment totaling more than one year and one month, the date of last release from incarceration on such sentence....
On March 30, 1987, Galaviz was convicted in state court of assault with intent to do great bodily harm less than murder. He was sentenced to 3-10 years imprisonment, and was paroled on November 12, 1991. The instant weapons-possession offense occurred on December 27, 2006, approximately six and one half weeks beyond the 15-year cutoff, as calculated from Galaviz‘s date of parole.
The only documentary evidence of the reason for and dates of imprisonment for this parole violation is a one-page “Transit List” obtained by the U.S. Probation Office from the Michigan Department of Corrections (MDOC). The Transit List shows that Galaviz received his first parole on November 12, 1991, was “returned as PV technical” to the Western Wayne Correctional Facility on January 23, 1992, and was “reinstated on parole from institution” on February 3, 1992. Galaviz was discharged from parole November 12, 1993. (The term “PV technical” stands for “parole violation technical” or “parole violator technical.”) Galaviz‘s argument on appeal hinges on the import of the “technical” parole violation.8 Galaviz concedes that as long as he was on parоle, “he could be re-incarcerated for violation of his parole which could extend his incarceration for an additional period of time, bringing his incarceration within the fifteen (15) year time limitation.” He argues, however, that his imprisonment for a “technical” parole violation that was “alleged but dismissed at the time of Hearing” does not constitute imprisonment as a “result” of the 1987 conviction for purposes of
Galaviz asserts that a parole violation hearing was scheduled for February 3, 1992, but that the hearing did not take place because no witnesses appeared for it. As the government points out, there is no documentary support in the record for these factual assertions. But the record does support the conclusion that Galaviz was not found to have violated his parole, as he served only 11 days’ detention and was never convicted of thе underlying firearms charge. The terminology used in the Transit List also supports this conclusion. That document notes that Galaviz was “reinstated on parole.” In Michigan, a parolee is “reinstated to parole status” when the parole board is presented with “insufficient [evidence] to support the allegation that a parole violation occurred.”
The district court‘s determination that Galaviz‘s imprisonment for the parole violation “resulted from” the 1987 conviction was a finding of fact that this court must uphold unless clearly erroneous. See Moon, 513 F.3d at 539-40. The evidence regarding the reason for and nature of the 1992 period of imprisonment for the parole violation does support that Galaviz spent time in a Michigan Department of Corrections facility as a result of an alleged “technical” parole violation. The district court therefore did not clearly err in finding that Galaviz was imprisoned within the fifteen-year period. However, the district court also offered an interpretation of the relevant Guidelines provision, reasoning that as long as Galaviz was on parole, he remained technically under sentence for the 1987 conviction, and thus any incarceration during the pendency of that parole could serve to bring the 1987 conviction within thе 15-year period. (See Sentencing Hr‘g Tr. 20, R. 36.) This is a legal issue, which we review de novo. Moon, 513 F.3d at 540.
Galaviz argues that he was held for a parole violation that was never substantiated, and therefore should not be deemed imprisoned as a result of the 1987 conviction. The Guidelines provide that a prior conviction is to be counted if it “resulted in the defendant being incarcerated during any part of [the] fifteen-year period.”
Chapter 4 of the Guidelines Manual does not define “revocation.” Chapter 7 addresses violations of probation and supervised release for convictions obtained in the federal system.9 The policy statement at the beginning of Chapter 7 makes clear that “revocation” is a determination of a court, to be followed by resentencing as directed by the relevant statutes and sentencing guidelines. See
Under Michigan law, “[a]fter a prisoner is released on parole, the prisoner‘s parole order is subject to revocation at
The record indicates that Galaviz was never found to have violated his parole and was reinstated on parole after 11 days. Were
Our understanding of the purpose of the relevant sentencing guidelines supports this outcome. The general position of the Guidelines is that “[a] defendant‘s record of past criminal conduct is directly relevant to [the purрoses of sentencing].”
It is not enough that, as a factual matter, a parolee is incarcerated while remaining technically under sentence. Otherwise, criminal-history points could be added because a person on parole was arrested and incarcerated for several days on a minor charge—an old traffic offense, for example—that does not constitute a violation of parole. It is also nоt enough that incarceration “resulted from” a prior offense in the bare sense that a parole violation was alleged and the parolee was detained due to that allegation. The parolee must have been incarcerated due to a revocation of parole, rather than merely have been incarcerated pending determination whether a parole violation occurred in the first place.
Our conclusion finds further support in the rule of lenity. The “policy of lenity means that the Court will not interpret a federal statute so as to increase the penalty it places on an individual when
The “resulted in” language of
Therefore, we reverse the district court‘s determination that the 1987 conviction is properly counted in calculating Galaviz‘s criminal-history category. Consequently, we conclude that Galaviz‘s sentence is procedurally unreasonable, and we remand for recalculation of his criminal-history category in light of this opinion.
IV
In a reply brief filed approximately nine and one half months late, Galaviz makes an additional argument, not raised in his opening brief, regarding calculation of his criminal history points. The government has filed a motion to strike the reply brief for: “(1) Failure to file within 17 days after Appellee‘s Brief; and (2) Raising a nеw issue.”
Galaviz‘s reply brief is untimely filed without leave of this court, and therefore should normally be stricken on that basis. See 6th Cir. R. 26(c) (regarding filing of late documents). Additionally, the reply brief raises an argument not included in the opening brief: that the Sentencing Guidelines were amended after the briefing schedule was over, and that this change should be retroactively applied to the calculation of Galaviz‘s sentence because his conviction is still on direct appeal. We do not usually entertain new arguments raised for the first time in a reply brief. See United States v. Campbell, 279 F.3d 392, 401 (6th Cir. 2002).
Even if we were to entertain the argument advanced by the brief, however, it would be of no aid to Galaviz. The reply brief states that Galaviz received two criminal history points under
Even assuming that Galaviz (and the PSR) intend to refer to
V
For the foregoing reasons, we AFFIRM the district court‘s denial of Galaviz‘s motion to suppress but REVERSE its sentence of 70 months’ imprisonment and REMAND for recalculation of the sentence. We also GRANT the government‘s motion to strike Galaviz‘s untimely reply brief.
MERRITT, Circuit Judge, concurring.
The court‘s opinion persuasively explains how three features of the law operate in this case to eviscerate the warrant requirement of the Fourth Amendment as applicable to this defendant. When the police see a pistol in a parked car in Michigan, two exceptions to the warrant requirement of the Fourth Amendment—the plain-view and automobile exceptions—are stacked with a burden-shifting provision in Michigan‘s concealed weapons statute, and the result is that the police have broad authority to break into the car and seize the gun without a warrant. As the court analyzes the issue, it is irrelevant how the police‘s attention came to be focused on the defendant. As it turns out, here the police were responding to a 911 call concerning a suspect in a car with a similar make to that of the defendant, but by the time the events relevant to defendant‘s ultimate conviction occurred, he had been definitively ruled out of this initial investigation. But that is no matter. While I join the court‘s opinion and agree that the result in this case is unavoidable in light of controlling authority, I write separately to note just how detached all three of the legal rules that decide this case are from their original rationales, and to emphasize the paucity of constitutional rights enjoyed by automobile owners in the State of Michigan who carry pistols in their cars, even when those guns are carried lawfully.
The court‘s opinion analyzes the seizure of the pistol in this case under the general framework of the plain-view exception to the warrant requirement. This exception has three elements: that the police be lawfully in a position from which they may view the object to be seized, that the incriminating character of the object be immediately apparent, and that the officers have a lawful right of access to the object when it is seized. Horton v. California, 496 U.S. 128, 136-37 (1990). That the first element is satisfied in this case is relatively
To find the plain-view exception‘s other two elements satisfied requires us to apply a burden-shifting provision applicable to Michigan‘s concealed weapon statute, and then yet another exception to the warrant requirement. First, while pistols are not always illegal to carry in a car in Michigan, they are, in effect, presumptively so. Michigan citizens are free to carry pistols in their car so long as they have a license to do so; but
But here, the car was locked, and the defendant apparently would not give up his keys, and so the police‘s right of lawful access to the pistol—the third element of the plain-view exception—might at first blush seem lacking. But, again, another exception to the warrant requirement applies: the automobile exception. This relatively long-established exception allows the police warrantlessly to search a car where they have probable cause to believe it contains evidence of a crime. Maryland v. Dyson, 527 U.S. 465, 466-67 (1999) (citing Carroll v. United States, 267 U.S. 132, 153 (1925)). As the court‘s opinion correctly notes, our Circuit specifically has extended this exception to аllow the police to break into parked cars when they have reason to suspect they contain contraband. See, e.g., United States v. Weatherspoon, 82 F.3d 697, 697-99 (6th Cir. 1996).
And so the police were entitled in this case to use a wrecker to force open the defendant‘s car and seize the pistol without getting a warrant first. The pistol was apparently visible from outside the car, Michigan law effectively presumes that guns in cars are illegal, and the police may break into a car when they have probable cause to believe it contains something illegal inside. This is so even though the original rationales for each of the critical provisions commanding the result in this case are not present here. The plain-view exception is based on the “practical justification [of] sparing police the inconvenience and the risk—to themselves or to the preservation of the evidence—of going to obtain a warrant.” Arizona v. Hicks, 480 U.S. 321, 327 (1987). But this pistol posed neither risk; it was locked in a parked car, not likely to go anywhere and certainly not available to the defendant, who was already in custody by the time it was seized. The Michigan burden-shifting statute was apparently enacted as a legislative reversal of a Michigan Court of Appeals case that held a defendant‘s lack of a license to be an element of the concealed weapon offense that must be proven by the prosecution in its case-in-chief. Compare People v. Schrader, 10 Mich. App. 211, 159 N.W.2d 147, 150 (1968)
The court‘s opinion notes in a footnote that “in cases like this ... the preferred course of action would be for officers to secure the car and obtain a warrant before forcing entry.” This suggestion is laudatory, but it is, as should be obvious by now, utterly precatory: we may only request that the police comply with this “preferred” procedure, because the law is clear that they are under no legal obligation to do so. Make no mistake, the state of the law in Michigan is now that the police may break into and search a parked car whenever they see a pistol inside. This rule applies whether one is like the defendant in this case, a felon who had no right to possess a firearm and who will very likely spend years in prison on the basis of the fruit of one of these searches, or one is a duly licensed Michigan pistol owner, who happens to have one‘s gun infelicitously positioned within a parked car when the police walk by, and fails to be present at that moment to rebut the law‘s presumption that the item is illegally possessed. In a total inversion of the Katz rule, these warrantless searches are now per se reasonable under the Fourth Amendment.
I agree with the decision of the Michigan Court of Appeals in Schrader, supra, that the absence of a license for a pistol should be an element of the offense, and therefore should be established before the police can be said to have probable cause to believe the law has been violated, but the legislature overruled this decision. Once that occurred, against the backdrop of the plain-view exception and the automobile excеption, a police officer in Michigan may forego a warrant and break into a car.
HELENE N. WHITE
CIRCUIT JUDGE