2012-03-07 Motion for Hearing on Application for Leave to Appeal 100360784 - Kevin A. Landau

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

PEOPLE OF THE STATE OF MICHIGAN

Plaintiff-Appellee,

Circuit Court

No. 12-DA9591-AR

Hon. Denise Langford Morris

vs.

48^thDistrict Court
No. 11-20227

KEVIN AARON LANDAU

Defendant-Appellant.

MOTION FOR HEARING ON APPLICATION FOR LEAVE TO APPEAL

NOW COMES Defendant-Appellant, KEVIN AARON LANDAU, and in support of his motion for hearing on application for leave to appeal pursuant to MCR 7.103(B)(4), says as follows:

This case arose as a result of a stop of Defendant’s automobile on March 26, 2011, and his subsequent arrest for operating a motor vehicle under the influence of alcohol.
Defendant, Kevin Aaron Landau, through his counsel, filed motions for suppression of all evidence relating to the illegal search, seizure and detention stemming from the warrantless stop made without reasonable articulable suspicion or probable cause that Defendant violated any traffic laws or had committed or was committing a crime.
An evidentiary hearing on Defendant’s motions was held on October 24, 2011 and November 14, 2011, before the Honorable Kimberly Small, 48^thDistrict Court Judge.
On January 31, 2012, Judge Small issued an “Order Denying Defendant’s Motion to Dismiss Regarding Stop, Order Denying Defendant’s Motion to Dismiss for Lack of Probable Cause to Arrest and Order Granting Defendant’s Motion to Suppress HGN”.
However, on January 30, 2012, in reading the decision in open court, Judge Small also suppressed the preliminary Breathalyzer test results (PBT), which was not included in the written Order. The transcript of Judge Small’s decision articulated in court on January 30 has been received and filed with this Court.
Defendant now appeals to Circuit Court from Judge Small’s Order denying Defendant’s motions to dismiss regarding the stop and arrest of Mr. Landau.
On February 21, 2012, the application for leave to appeal the Order of 48^th District Court denying Defendant’s motion to dismiss regarding the stop and arrest of Defendant, was filed.
The legal issues in this case involve constitutional principles, case law and interpretation of state statutes.
The testimony at the evidentiary hearing of Police Officer Dan Brown, the only witness produced by the People, revealed the following;

The traffic stop began with an investigation that started with an anonymous 911 call from a person who generally conveyed a message that brought attention to the vehicle. That caller either does not exist, misrepresented his or her identity, and/or has not been produced as a witness for other reasons. The caller lacked specific information to show sufficient knowledge and/or reliability pursuant to Alabama v. White, 496 U.S. 325 (1990). The person cannot be located through various databases, and the police and prosecutor have failed and/or refused to provide contact information for the mystery caller, As such, the 911 call cannot be used to support the traffic stop. Nevertheless, Judge Small improperly relied upon the alleged 911 call as playing a factor in making her decision.

Purportedly based upon the 911 call, Officer Brown followed Mr. Landau’s vehicle. He claims that the vehicle committed infractions sufficient to give him probable cause to stop the vehicle. He claimed to have seen weaving within the lane of travel and that Mr. Landau’s vehicle was following the vehicle in front of him too closely. Neither allegation is true, and neither allegation supports a traffic stop.

In the immediate case, the alleged weaving was neither pronounced nor sustained, and the officer admitted that he did not stop the vehicle for weaving within its lane of travel. To the extent that the Court attempted to elicit testimony from the officer to justify the traffic stop the Court improperly interjected its own preconceived opinions in lieu of the officer’s testimony before reviewing the video. [Tr. At 52.) Weaving within the lane of travel is not against the law in Michigan, it is not indicative of impaired driving, and the officer disclaimed this as a reason for the traffic stop. [Tr. 13, 51], the appropriate statue in this regard under Michigan law is MCL 257.642, which states:

257.642 Roadway divided into 2 or more lanes; applicable rules; designation as HOV lane; restrictions; exceptions; violation as civil infraction.

(1) When a roadway has been divided into 2 or more clearly marked lanes for traffic the following rules in addition to all others consistent with this act shall apply:

(a) a vehicle shall be driven as nearly as practicable entirely within a single lane

and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.

[Emphasis added.]

See also United States v, Freeman, 209 F. 3d 464 (6^thCir 2000) and United States v. Lyons, 7 F. 3d 973, 976 (10^thCir 1993) “If failure to follow a perfect vector down the highway or keeping one’s eye on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.”

Despite the officer’s protestations that he did not stop the vehicle for weaving, he claims on video in response to Mr. Landau’s initial inquiry, “you’re weaving all over the place!”

Clearly that statement was not true.

The officer during his testimony claimed that he stopped Mr. Landau’s vehicle because it was following the vehicle in front of it too closely. The officer claimed that a Michigan statute prohibited conduct described by defense as “tailgating”, but he could not identify the statute or its requirements. [Tr. At 50]. No law has been provided by the prosecution to justify the traffic stop on this basis, but Mr. Landau submits the following statute:

257.643. Distance between vehicles; violation as civil infraction.

Sec. 643. (1) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of vehicles and the traffic upon, and condition of, the highway.

The officer claimed that Mr. Landau was a few car lengths, at least two or three, behind the vehicle in front of him. [Tr.. at 46]. The officer indicated that, not “everybody thinks that’s a safe distance” and “your definition of unsafe and mine may differ” but he learned this law while attending driver instruction training when he got his driver’s license. [Tr. at 46]. That contention is patently absurd.

Mr. Landau submits that every published opinion under MCL 257.643 involves a motor vehicle accident. To the extent that the officer imposed matter taught to him by his 9^thgrade driver instructor, the legality of the traffic stop cannot be supported. If the stance is enforceable as the officer portrayed in Court, the statute has no guidelines or standards and it is void for vagueness. People v. Hrlic, 277 Mich App 260, 263; 744 NW2d 221 (2007). To the extent that the statute is not void for vagueness, the officer’s testimony that he could stop any vehicle traveling at 50 mph within 100 feet of the vehicle in front of it shows that this officer’s interpretation of the statute is simply not reasonable. [Tr. at 48]. In the video tape admitted by the prosecutor, nearly every vehicle recorded by the officer’s camera was driving within 100 feet of the other vehicles traveling along Square Lake Road. It is further submitted to the Court that 90 percent of the vehicles that travel north and south of the Court’s front entrance along Telegraph travel within distances that fall far short of the officer’s high school driver’s education program’s recommendations, maintaining distances identical to those exhibited by Mr. Landau on the night of the traffic stop.

The officer’s arrest decision is based upon a totality of the circumstances. It is submitted to this Court that, although not legally binding upon this Court, the DWI Detection and the Standardized Field Sobriety Test training course provide an objective (as opposed to subjective) method to determine whether probable cause exists to effectuate an arrest. These objective materials are critical to this case. In the absence of these objective materials, concepts such as reasonable suspicion, probable cause, totality of circumstances, and other rules and proper methods of administering tests become so subjective that no rules or standards exist.

The complete testimony of Officer Brown at the evidentiary here is included in the Statement of Facts in Defendant’s application for leave to appeal.

The following issues and argument are raised in Defendant’s application for leave to appeal.

In United States v. Sanford, 476 F.3d391 (2007), the United States Court of Appeals, Sixth Circuit, set forth the standard of review of the grant or denial of a motion to suppress:

“The review of the denial or the grant of a motion to suppress is a mixed question of fact and law. Thus, we review the district court’s findings of fact for clear error and the district court’s conclusions of law de novo. A factual finding is clearly erroneous when, although there may be evidence to support it, the reviewing court utilizing the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.” See also United States v. Freeman, 209 F.3d 464 (2000).

In United States v. Walters, 492 F. supp. 2d 754, 757-758 (2007), the Government contended that the police officer had probable cause to stop defendant’s vehicle for two violations of Michigan’s Motor Vehicle Code, one being for failure to have a tail lamp or separate lamp placed as to illuminate with a white light the rear registration plate and make it legible from 50 feet to the rear and the other violation being that he twice strayed from the right-hand lane into the center lane. In concluding that the officer lacked probable cause to stop the defendant contrary to the Fourth Amendment, the United States District Court, held:

“The officer must have probable cause to believe that the motorist has violated the traffic laws. To establish probable cause, the Government must show “reasonable CNCN grounds for belief, supported by less than prima facie proof but more than mere suspicion.” United States v. Ferguson, 8 F. 3d 385, 391 (6^thCir. 1993). In determining the existence of probable cause, the officer’s subjective motivation is irrelevant. The Government bears the burden of proving the existence of probable cause.”

In Freeman, a Memphis Police Officer stopped a motor home traveling eastbound on heavily traveled Interstate Forty for violating a section of the Tennessee Motor Vehicle Code after he allegedly observed the vehicle cross the white line separating the emergency lane from the right-hand lane of traffic for 20 to 30 feet. In finding that the police officer did not have probable cause to stop the defendant and directing that the evidence be suppressed, the United States Court of Appeals held:

“Stopping a vehicle and detaining its occupants amounts to a seizure under the Fourth Amendment. The reasonableness of the stop is ascertained by determining first “whether the officer’s action was justified at its inception,” and second “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”

In holding that “it is true that so long as the officer has probable cause to believe that a traffic violation has occurred or was occurring, the resulting stop is not unlawful”, the Court in Freeman supra, said that it could not agree that one isolated incident of a large motor home partially weaving into the emergency lane for a few feet and an instant constitutes a failure to keep the vehicle within a single lane” as nearly as practicable.” The Court also held that “Just as it does not constitute probable cause that a traffic violation occurred, the motor home’s brief entry into the emergency lane does not constitute probable cause that Adams was intoxicated,” The Court went on to say, “As stated by the Tenth Circuit, “if failure to follow a perfect vector down the highway or keeping one’s eye on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy,”

In the absence of warrant, a police officer may arrest a person only if there is “reasonable cause” to believe that a crime has occurred. MCL 764.15. It is submitted that reasonable cause and probable cause are identical but distinguishable from the lesser standard of reasonable suspicion. See, for example, People v. Champion, 452 Mich 92 (1996).

“Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors quantity and quality-are considered in the totality of the circumstances-the whole picture, ‘that must be taken into account when evaluating whether there is reasonable suspicion.” Id. At 330 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66L. Ed. 2d 621 (1981)).

If the investigatory stop is not supported by reasonable suspicion or if the officers exceed the proper scope of the stop, then any evidence derived from the stop must be excluded from trial. Wong Sun v United States, 371 U.S. 471, 484, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), People v LoCicero, 453 Mich 496, 508 (1996).

The U.S. Supreme Court described the difference between reasonable suspicion and probable cause in Ornelas. United States, 517 U.S. 690, 695-697, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996), holding that the difference is conceptually different but difficult to define in stark legal principles:

Articulating precisely what “reasonable suspicion” and probable cause” mean is not possible, They are commonsense, nonethical conceptions that deal with “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Illinois v Gates, 462 U.S. 213, 231, 76 L. Ed 2d 527, 103 S. Ct. 2317 (1983) (quoting Brinegar v. United States. 338 U.S. 160, 175,

93 L. Ed. 1879, 69 S. Ct. 1302 (1949)); see United States v. SQk010v, 490 U.S. 1, 7-8, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989). As such, the standards are “not readily, or even usefully, reduced to a neat set of legal rules.” Gates, supra, at 232. We have described reasonable suspicion simply as “a particularized and objective basis” for suspecting the person stopped of criminal activity, United States v. Cortez, 449 U.S. 411, 417-418, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981), and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found, see Brinegar, supra, at 175-176; Gates supra, at 238. We have cautioned that these two legal principles are not “finely-tuned standards,” comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. Gates, supra, at 235. They are instead fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed. Gates, supra, at 232; Brinegar, supra, at 175 (“The standard of proof [for probable cause] is”. Correlative to what must be proved”); Ker V. California, 374 U.S. 23, 33, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963) (“This court] [has a] long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application”; each case is to be decided on its own facts and circumstances” (internal quotation marks omitted}}; Terry v. Ohio 392 U.S. at 29 (the limitations imposed by the /fourth Amendment “will have to be developed in the concrete factual circumstances of individual cases”).

Nonetheless, the Ornelas Court held that these concepts are objective:

The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint QC an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact:

“The historical facts satisfy the [relevant] statutory [or constitutional] standard, or to put jt another way, whether the rule of law as applied to the established facts is or is not violated.” Pullman-Standard v. Swint 456 U.S. 273, 289, n. 19, 72 L. Ed. 2d 66, 102 S. Ct. 1781 (1982).

As such, this Court should attempt to determine whether probable cause (as

opposed to reasonable suspicion) objectively existed to determine whether Mr. Landau was operating while intoxicated or impaired from “the standpoint of an objectively reasonable police officer.”

Employing objective criteria in this case — and rejecting justifications and excuses objective analysis reveals that probable cause was lacking. “The…events which occurred leading up to the stop” under Ornelas that this Court must look to initially are simply not justifiable. While he claims that a 911 call drew his attention to the vehicle, no 911 caller has been produced, despite protests from the defense. And while the officer claims that he stopped Mr. Landau for following another vehicle too closely, that fact is hotly contested. Moreover, the officer claims that he did not stop Mr. Landau for weaving, even though he immediately claims in the video supplied to this Court that Mr. Landau was “weaving all over the place.”

The stopping sequence was consistent with that of a safe, sober motorist. See NHSTA Manuel at V-10.

Officer Brown finally approaches the vehicle to perform his investigation and field sobriety tests at 00:00:44. Mr. Landau exits the vehicle consistent with Officer Brown’s command, evincing no clues or symptoms of impairment. See NHSTA Manuel at VI-6.

Officer Brown then proceeds to have Mr. Landau perform the alphabet and backward count from 99 to 73. Both of these tests were performed in a manner consistent with a sober person. The only flaw during this process was that Mr. Landau skipped the number 80. This is consistent with a sober person’s performance of the tests, and the prosecutor introduced no evidence to the contrary.

On the One Leg Stand, it is undisputable that the officer deviated from the normal instructions, raised his leg up into the air too far, and he did not provide standardized instructions. Mr. Landau also told the officer “l have lower back pain” at 00:01:33. This impacts a person’s ability to perform the test properly.

Nonetheless, Mr. Landau agrees that he did not perform the test properly because he is physically incapable of doing so given his chronic lower back pain. Therefore, Mr. Landau contends that the test is meaningless.

There is sharp disagreement over Mr. Landau’s performance of the walk and turn test. While the officer contends that Mr. Landau performed this test improperly, the video evinces that this test was performed correctly.

The trial court suppressed any evidence of the PBT and HGN Tests performed by the officer because of the improper manner in which they were administered and the unreliability of the results.

The district court judge engaged in excessive interference of defense counsel in his examination of witnesses made repeated rebukes and disparaging remarks of defense counsel and displayed an attitude of partisanship in favor of the prosecutor throughout the course of the evidentiary hearing.

The standard of review is abuse of discretion. People v. Conyers, 194 Mich App 395, 404 (1992).

As the transcripts of the evidentiary hearing reveal, the district court judge engaged in constant, excessive interference with defense counsel in the examination of witnesses, made repeated disparaging remarks to him and exhibited marked impatience toward him throughout the evidentiary hearing with no apparent or legitimate reason for such conduct. Canon 3(A)(8) of the Michigan Code of Judicial Conduct states:

A(8) A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but the judge should bear in mind that undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on the judge’s part toward witnesses, especially those who are excited or terrified by unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of truth in respect thereto.

Conversation between the judge and counsel in court is often necessary, but the judge should be studious to avoid controversies that are apt to obscure the merits of the dispute between litigants and lead to its unjust disposition. In addressing counsel, litigants, or witnesses, the judge should avoid a controversial manner or tone.

A judge should avoid interruptions of counsel in their arguments except to clarify their positions and should not be tempted to the unnecessary display of learning or a premature judgment. MI R CJC Canon 3.

In Conyers, supra, the Court of Appeals said that excessive interference in the examination of witnesses, repeated rebukes and disparaging remarks directed at defendant’s counsel and marked impatience displayed an attitude of partisanship which resulted in the denial of a fair trial. Judge Small’s conduct during this hearing reflected all of the prohibited judicial conduct mentioned above. Defense counsel also was not treated with the consideration due an officer of the court. People v. Wigfall, 160 Mich App 765,775 (1987).

The trial court may question witnesses in order to clarify testimony or elicit additional relevant information. MRE 614(b) People v. Sterling, 154 Mich App 223, 228 (1986). However, the trial court must exercise caution and restraint to ensure that its questions are not intimidating, argumentative, prejudicial, unfair or partial. Sterling, supra.

Judge Small’s repeated interruption of defense counsel in his examination of witnesses, her unreasonable display of anger and impatience toward defense counsel, and her constant leading questions, which amounted to testimony, of Officer Brown during cross-examination, deprived Defendant of due process and a fair hearing,

Defendant-Appellant, KEVIN AARON LANDAU, respectfully requests that the Order of the 48th District Court denying defendant’s motions to dismiss regarding the stop of his vehicle and lack of probable cause to arrest be reversed and this case dismissed against Defendant.

WHEREFORE, Defendant-Appellant, KEVIN AARON LANDAU, respectfully requests that this Honorable Court grant the application for leave to appeal.

Respectfully submitted,

Dated: March 6, 2012

Arthur H. Landau (P 16381)

Attorney for Defendant-Appellant 29777 Telegraph Rd., Ste. 2500

Southfield, Michigan 48034 248.948.0893

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

PEOPLE OF THE STATE OF MICHIGAN

Plaintiff-Appellee,

Circuit Court

No. 12-DA9591-AR

Hon. Denise Langford Morris

vs.

48^thDistrict Court

No. 11-20227

KEVIN AARON LANDAU

Defendant-Appellant.

__________________________________/

PROOF OF SERVICE

Arthur H. Landau, Attorney for Defendant-Appellant, deposes and says that on the 7^th day of March, 2012, he served a copy of Defendant-Appellant’s Motion On Application For Leave To Appeal upon, the Oakland County Prosecutor’s Office, located at 1200 N. Telegraph Rd., Pontiac, Michigan 48341, by personal service, and by Pacer electronic service.

I DECLARE THAT THE STATEMENTS ABOVE ARE TRUE TO THE BEST OF MY

NFORMATION, KNOWLEDGE AND BELIEF.

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAN

PEOPLE OF THE STATE OF MICHIGAN

Plaintiff-Appellee,

Circuit Court

No.
vs.

48 ^thDistrict Court

No. 11-20227

KEVIN AARON LANDAU

Defendant-Appellant.

BRIEF OF DEFENDANT-APPELLANT IN SUPPORT OF LEAVE TO APPEAL

Arthur H. Landau (P 16381)

Attorney for Defendant-Appellant

29777 Telegraph Rd., Ste. 2500

Southfield, Michigan 48034

248.948.0893

TABLE OF CONTENTS

PAGE(S)

Index to Authorities……………………………………………… iii-iv

Statement of the Basis of Jurisdiction of Circuit Court………….. v Statement of Issues Involved…………………………………….. vi

Statement of Facts……………………………………………….. 1

Argument I

The district court judge committed reversible error in denying Defendant’s motion to suppress evidence and to dismiss the charge of driving while intoxicated where there was no probable cause to stop Defendant’s vehicle for violation of a traffic ordinance.

Applicable Standard of Review

Argument II

The district court judge engaged in excessive interference of defense counsel in his examination of witnesses made repeated rebukes and disparaging remarks of defense counsel and displayed an attitude of partisanship in favor of the prosecutor throughout the course of the evidentiary hearing.

Applicable Standard of Review

Relief Requested……………………………………………..

Proof of Service

INDEX TO AUTHORITIES

PAGE(S)

Alabama v. White, 496 U.S. 325 (1990) 15

Brinegar v. United States, 20

338 US 160, 175, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949)

Illinois v. Gates,

462 U.S. 213, 231, 76 L. Ed. 2d 527, 103 S. ct. 2317 (1983) 20

Ker California,

374 US 23, 33 10 L. Ed 2d 726, 83 S. Cr. 1623 (1963) 20, 21

Ornelas v, United States,

517, U.S. 690, 695-697, 116 S. ct. 1657, L. Ed. 2d 911 (1996) 19, 20, 21, 22

People v. Champion, 452 Mich 92 (1996) 19

People v. Coyers, 194 Mich App 395, 404 (1992) 24, 25

People v. Hrlic, 277 Mich App 260, 263, 744 NW2d 221 (2007) 18

People v. LoCierco, 453 Mich 496, 508 (1996) 19

People v. Rizzo, 243 Mich App 151, 622 NW2d 319 (2000) 22

People v. Sterling, 154 Mich App 223, 228 (1986) 25

People v. Wigfall, 160 Mich App 765, 775 (1987) 25

Pullman-Standard v. Swint, 21

456 US 273, 289 n. 19, 72 L.Ed 2d 66, 102 S. Ct. 1781 (1982)

United States v. Cortez, 19

449 US 411, 417 101 S. Ct. 690, 66 L.Ed 2d 621 (1981)

United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) 14

United States v. Freeman, 209 F. 3d 464 (2000) 13, 14

United States v. Lyons, 7 F. 3d 973, 976 (10th Cir 1993) 17

United States v. Sokolov,

490 US 1, 7-8, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989) 20

United States v. Stanford, 476 F. 3d 391 (2007) 13

United States v. Walters, 492 F. Supp. 2d 734, 757-758 (2007) 13

Wong Sun v. United States, 19

371 U.S. 471, 484, 83 S. Ct, 407, 9 L.Ed 2d 441 (1963)

STATUTES

Canon 3(A) (8) 24

MCL 257.642 16

MCL 257.643 17

MCL 764.15 19

MRE 614(b) 25

STATEMENT OF THE BASIS OF JURISDICTION OF CIRCUIT COURT

In this matter defendant is charged with driving under the influence of intoxicants.
On October 24, 2011, and November 14, 2011, an evidentiary hearing was held on defendant’s motions to dismiss and for suppression of evidence in 48 ^thDistrict Court, before Judge Kimberly Small.
On January 31, 2012, Judge Small entered an Order denying in part and granting in part defendant’s motion, from which defendant now appeals.
The circuit court has jurisdiction pursuant to MCR 7.101 (A)(1)-(2) and MCR 7.101 (B)(1)(a)-(b)

STATEMENT QF ISSUES INVOLVED

Argument I

Did the district court judge commit reversible error in denying Defendant’s motion to suppress evidence and to dismiss the charge of driving while intoxicated where there was no probable cause to stop Defendant’s vehicle for violation of a traffic ordinance?

Defendant-Appellant says “Yes”

Plaintiff-Appellee says “No”

Argument II

Did the district court judge engage in excessive interference of defense counsel in his examination of witnesses, make repeated rebukes and disparaging remarks of defense counsel and display an attitude of partisanship in favor of the prosecutor throughout the course of the evidentiary hearing?

Defendant-Appellant says “Yes”

Plaintiff-Appellee says “No”

STATEMENT OF FACTS

This case arose as a result of a stop of Defendant’s automobile on March 26, 2011, and his subsequent arrest for operating a motor vehicle under the influence of alcohol. Defendant, Kevin Aaron Landau, through his counsel, filed motions for suppression of all evidence relating to the illegal search, seizure and detention stemming from the warrantless stop made without reasonable articulable suspicion or probable cause that Defendant violated any traffic laws or had committed or was committing a crime.

An evidentiary hearing on Defendant’s motions was held on October

24, 2011 and November 14, 2011, before the Honorable Kimberly Small, 48^th District Court Judge. On January 31, 2012, Judge Small issued an “Order Denying Defendant’s Motion to Dismiss Regarding Stop, Order Denying Defendant’s Motion to Dismiss For Lack of Probable Cause to Arrest And Order Granting Defendant’s Motion to Suppress HGN”

However, on January 30, 2012, in reading the decision in open court,

Judge Small also suppressed the preliminary breathalyzer test results (PBT), which was not included in the written Order. The transcript of Judge Small’s decision articulated in court on January 30 has been ordered.

Defendant now appeals to Circuit Court from Judge Small’s Order denying Defendant’s motions to dismiss regarding the stop and arrest of Mr. Landau.

At the evidentiary hearing on October 24, 2011, Bloomfield Township Police Officer Dan Brown testified on behalf of the prosecution. Officer Brown testified that on March 26, 2011, before midnight, he was dispatched to West Square Lake Road and Eileen Street in Bloomfield Township as a result of a 911 cell phone call that came in “the caller reporting a possible drunken driver”. (H, 10-24-11, p.8). Officer Brown testified that the person called the police dispatch center and ‘{then the dispatch center relayed the message over the police radio that the vehicle was westbound on Square Lake near Woodward, black Lexus, possible drunken driver,” with the license plate of the vehicle. (H, 10-24-11, p.9). The officer testified that within a minute he was following the Lexus. The officer then testified “I-I began following it westbound on Square Lake, until I observed the vehicle – I watched the vehicle – I look for indicators on a possible drunk driver. I can’t always just take the caller’s word. So I wanted – for my own benefit, I needed to see a violation or behavior that is consistent with my past experience in stopping possible drunk drivers”. The officer testified that he observed the vehicle weaving within its own lane of travel, “which isn’t necessarily enough to stop it by itself. But then it began following the vehicle in front of it too closely; an unsafe distance. So that’s when I initiated the traffic stop, once I observed that violation.” (H, 10-24-11, p. 12). The officer testified that since Defendant was not committing a traffic violation by weaving slightly in his own lane, he followed Defendants vehicle for a ¹/4 mile until he could give him a civil infraction for following too closely (H 10-24-11, p. 12). He testified that he stopped Mr. Landau’s vehicle because it was following too closely and then “1 had a legitimate traffic stop that is a citable offense.” He testified that Mr. Landau’s automobile always stayed within its own lane while he observed it (H, 10-24-11, p. 13). When asked by the prosecutor how close Mr. Landau’s automobile was to the vehicle in front of him, he answered as follows:

“Within a few car lengths. A safe rule is for every ten miles an hour you’re traveling, you should be at least one car length behind. So at 50 miles an hour, which is the speed limit, a safe estimate should be like five car lengths, and it was well within that” (H, 10-24-11, p. 14)

There also exists a video tape of this entire incident.

The officer testified that once he stopped Defendant’s vehicle he detected an odor of intoxicants and asked Defendant for his identification, which was promptly supplied. He indicated that Mr. Landau told him he was coming home after having dinner with his younger brother who had just graduated from law school and admitted to having two glasses of wine. (H, 10-24-11, p. 16-17).

The officer testified that he then did a series of field sobriety tests. He testified that Mr. Landau’s speech was clear and coherent and he passed the alphabet test. The officer then testified that he had Mr. Landau count backwards from 99 to 73 and he performed that successfully except for missing the number 80. (H, 10-24-11, p. 18-20). The officer also testified that when he said he had Mr. Landau count backwards from 93 as opposed to 99, he “misspoke.” (H, Ith24-11p p. 84).

Officer Brown then instructed Mr. Landau to do a “one-leg” stand and lift his leg 6 to 8″ off the ground, pointing the toe forward and count out loud from one to thirty in one-second intervals. He testified that if the person put their foot down or lose their balance, they are to pick their leg back up and continue counting (H, 10-24-11, p. 20). He testified that Defendant lost his balance and therefore failed the test (H, 10-24-11, p. 22). The officer then had Mr. Landau walk a straight line heel-to-toe. He testified that Mr. Landau did not complete the test as he requested because he did not touch heel to toe on all the steps although he never lost his balance (H, 10-24-11, p. 24). The officer then did horizontal gaze nystigmus or HGN, however, Judge Small granted Defendant’s motion to suppress the HGN results.

Officer Brown testified that he has been involved in over 1000 investigations for drunk driving and that over 90% of them resulted in arrests (H, 10-24-11, p. 28).

On cross-examination, Officer Brown testified that the information given to him from the 911 caller was that he/she, was following a drunk driver. He testified that the identity of that caller was later written in his police report. He testified that he did not attempt to locate this person subsequently. Defense counsel then asked the officer if any sort of background checks were run to even identify whether or not there is such a person in the State of Michigan to which the officer answered “l have no reason to.” Further, that person was not in court for the hearing. Defense counsel then said “As an officer of the court, I’ve ran an intelli-search and no such person exists.” (H, 10-24-11, p. 37-38). Although requested by Defense counsel during discovery, no 911 recording was produced.

Relative to the civil infraction for the following too close, the following questions and answers were made between defense counsel and the officer:

Q: Officer Brown, you indicated that it should be one car length for every ten miles an hour, right?

A: That’s not a documented distance. It’s nothing that you’re probably going to find in any textbook or law book

Q: Okay.

A: It’s a generality as -as they teach kids, teenagers a safe distance, and that was what I was taught 20 some -25 -23 – years ago.

Q: That would be a driver instruction training?

A: Yes.

Q: When you got your license?

A: Yes.

Q: Okay.

A: So that’s kind of a rule that I abide by, and that I assume others abide by. (H, 10-24-11, p. 45-46)

* * *

Q: Fifty. If I’m going 50 miles an hour, that puts me at almost 100 feet behind a vehicle in front of me.

A: Sir, I was speaking from my past experience. My – what I was taught. o

Q: Okay.

A: I’m not saying everybody thinks thaes a safe distance; I’m not saying that everybody has to abide by that. I certainly don’t pull over every vehicle that isn’t exactly five car lengths behind. (H, 10-24-11, p. 48).

On further cross-examination, the officer testified that Defendant’s weaving within the lane was not the reason for stopping Mr. Landau’s automobile. The officer testified that he continued to follow Mr. Landau’s automobile and after following it for a period of time finally found his automobile following too closely to the vehicle in front of it and then initiated the traffic stop (H, 10-24-11, p. 51-52). The officer’s testimony is in direct contradiction to what is reflected on the video tape.

On further cross-examination, Officer Brown testified that Mr. Landau pulled his car over in an immediate and normal manner and came to a complete stop (H, 10-24-11, p. 59). He testified that Mr. Landau appropriately exited the vehicle and there was nothing unusual about the way he exited his car. (H, 10-24-11, p. 73). The officer testified that he had training in administering these tests to suspected individuals over 1000 times. However, he testified that in this case he was not administering these tests the way he was trained. Defense counsel then asked him “Okay. You deviated from the way that you were supposed to do them?” The officer answered “Yes.” Defense counsel then asked the officer “Did you do that on someone’s authority?” To which the officer answered “My own.” (H, 10-24-11, p. 77-78) The following discourse then took place between defense counsel and Officer Brown on how he administered the field sobriety tests:

Q: And in connection with your training and that manual that you were provided, it said in bold, all caps, that you had to perform these tests in the standardized prescribed fashion, using the standardized criteria for scoring and the standardized method of assessing the subject’s performance, correct?

A: I’m going to take your word for it, sir, and agree with you, yes.

Q: Okay. And it said – it – it – they further instructed you that if you come that if you changed any of those standardized elements, one, two, or three, or all of them it would compromise your field sobriety test. (H, 10-24-11, p. 111-112)

The Court: Why don’t you show him where you’re reading, Counsel?

Mr. Maze: All right.

The Court: Let him take a look at it.

The Witness: I’m not disputing the fact I deviate. But I also deviate from the scoring of this – this manual.

The Court: Okay,

Mr. Maze: Fair Enough.

The Witness: We can argue this until we’re blue in the face. I didn’t follow the manual.

Mr. Maze: Now with the one-legged stand, you were not – for example, to tell the subject to lift their foot approximately six inches off the ground, correct?

A: Correct.

Q: And you instructed Mr. Landau six to eight inches, correct?

A: That is correct. (H, 10-24-11, p. 112-113)

Defense counsel then made reference to the one-legged stand test requiring the officer to tell the subject to lift their leg approximately six inches off the ground, that also required the officer to demonstrate how to do it The officer said he told Mr. Landau to lift his leg six to eight inches off the ground but did not remember how far he lifted his own foot off the ground in demonstrating how to do it. (H, 10-24-11, p. 114). Defense counsel also reminded the officer that Defendant told him he had chronic lower back pain, as evidenced by the videotape. Officer Brown then acknowledges that Mr. Landau told him he had lower back pain although he could not remember if he was told that he could not perform the one-legged stand. (H, 10-24-11, p. 5)

At the evidentiary hearing on November 14, 2011, the following discourse then took place between defense counsel and Judge Small:

The Court: This Court took a recess because I had some things I wanted to say to Mr. Maze, and frankly, as a courtesy to him, I wanted to keep them private and not say it in front of his clients. I was trying to do him a favor. But he has made it evidently clear that he would prefer that I made a record. I think on some level Mr. Maze is trying to get me to disqualify myself by showing some bias against him. I have no bias against him.

What I said to Mr. Maze back in chambers is that I was dangerously close to holding him in contempt of court. I have held only one other attorney in contempt of court my entire career. And the reason for it is because each and every time I make a ruling, after giving both parties adequate time to state their respective positions, Mr. Maze has argued with every single ruling 1 have made. And frankly, has shown nothing but contempt for the court.

I have a job to do. And my job is to move things along. I make rulings after considering what I believe I need to consider. And there is not an attorney that should be questioning a judge – I don’t care what judge – every single time a ruling had been made.

So, Mr. Maze, there’s your record. I tried to do it – Mr. Maze: Thank you, Your Honor.

The Court: –privately so you didn’t hurt – didn’t hurt your relationship with your client. And if this is some way to get me to disqualify myself, when I suggested that may be his – his motive here, I told him I was not going to disqualify myself, because I conduct these hearings pursuant to the rules. He looked at me and said well why wouldn’t you Judge, and that part I would like to make for the record, because [ think that’s exactly what Mr. Mae is trying to do here, given his comment back in chambers to me.

He cannot be in contempt of court, except a judge to conduct a hearing the way that she or he deems necessary and expect to build in some type of a bias. It doesn’t work that way, then if an attorney was in front of judge he or she did not want to be in front of, they could create a scenario in which a judge would disqualify him or herself. It does not work that way.

So, Mr. Maze, I’m going to put you on warning, as I did back in chambers, as a courtesy to you.

Mr. Maze: Thank you, Judge.

The Court: If you do not continue – if you do not conduct yourself in a way Mr. Maze: And just so we clarify –

The Court: Can I finish? Can I finish, please?

Mr. Maze: I’m sorry.

The Court: In a way pursuant to the rules, this Court – I will find you in contempt, because I have warned you over and over again. Do not challenge every ruling. I hear you first, I make my ruling. Let’s move on.

Mr. Maze: You are holding me in contempt? The Court: No.

Mr. Maze: Oh, okay.

The Court: I gave you one more warning.

Mr. Maze: Sure. Thank you, Judge. The Court: Okay. o

Mr. Maze: And just so that we clarify the record, earlier today you indicated that I had wasted my client’s money by bringing Mr. Corroto up here twice. You also indicated in chambers –

The Court: That’s not quite what I said, sir.

Mr. Maze: Okay. You indicated in – you indicated in chambers that I was dangerously close to being held in contempt.

The Court: That is true.

Mr. Maze: And then you instructed me to look you in the eyes The Court: That’s because you were staring at my desk.

Mr. Maze: Yes. And –

The Court: And you weren’t looking at me, so I didn’t know if you were listening.

Mr. Maze: — (Indiscernible) a manufactured method of trying to get you to disqualify yourself –

The Court: No, I just –

Mr. Maze: There’s been no indication that that’s what I’m aiming to do or – or that I’m somehow there’s a sinister plot to get you disqualified in this case. There quite frankly isn’t (H, 11-14-11, p. 78-81).

The Court: When I make a ruling, whether you like it or not, it’s my role to make the ruling, that’s my job. So when I make the rulings, I don’t expect you to continue to challenge it. I expect you to move on.

Mr. Maze: Okay.

The Court: So –

Mr. Maze: I think I’m doing that.

The Court: No, think you’re not.

Mr. Maze: Well, I also think just for the record to be completely written in stone here, that the prosecutor was allowed to delve into all sorts of The Court: Mr. Maze, I’ve made my ruling. Bottom line.

Mr. Maze: — without objection from the Court I have not been able to ask a singular question –

The Court: Okay. And let me –

Mr. Maze: — there’s not a page that goes by in this transcript where the Court has not interrupted me, or the prosecutor has not interrupted me. (H, 1114-11, p. 12).

Officer Brown testified that he did not administer the walk and turn test according to the manual nor did he assess Defendant’s performance on the test in accordance with the standardized criteria that he was taught. (H, 11-14-11, p. 13-14). He testified that he told Defendant to take nine steps forward and nine steps backward but did not demonstrate how to take those steps. Defendant took the appropriate number of steps both forward and backward. Defense counsel also told the officer that none of the things he claimed that Defendant did during the walk and turn are obvious on the video, to which the officer replied “Unfortunately, the camera doesn’t show his feet because of the closeness – so you’re going to have to take my word for it.” When Defense counsel said “So the feet were close enough such that the video doesn’t show us any type of failure to maintain heel to toe? The officer denied that, but could not say how Defendant failed the test or what the distance was between Defendant’s heels to toe in that test that made him fail the test. (H, 11-14-11, p. 21-23). The officer said that he expects subjects “to touch – connect – at least connect heel to toe” to pass the test (H, 11-1441, p. 23). Defense counsel then showed him the police training manual that says that it has to be half inch or greater to fail (H, 11-14-11, p. 24-25). As to the straight line test, the officer simply said that he did not think Defendant walked a completely straight line, although there was no designated line there. He could not recall how Defendant failed the test or if he ever saw the Defendant take a step that was completely off the line. (H, 11-14-11, 25, 27).

Defense counsel then put Tony Corrotto on the stand who was certified by the court as an expert in the context of his NHTSA manual, which is produced by the Federal Government and from which officers are trained (H, 11-14-11, p. 75). Mr. Corrotto testified that he was a police officer in Atlanta for 17 1/2 years, became a drug recognition expert, and started teaching standardized field sobriety testing to police officers.

Mr. Corrotto testified that the officer incorrectly administered the one-legged stand test because standard instructions for the test require the officer to ask a person if they have any physical disabilities or problems that would prohibit them from standing on one leg and that would not let them be a candidate for that particular test. He testified that it would not be a fair evaluation for that individual because they would have difficulty performing that task. (H, 11-14-11, p. 92-93). He testified that if the test was correctly administered, 65% of the time the officer will make the correct arrest decision based on the one-legged stand, but if there are back problems, the test is not to be performed. (H, 11-14-11, p. 94).

Mr. Corrotto also testified that the officer in this case did not properly instruct Mr. Landau on the walk and turn test. He testified that in administering the test properly, the person is told to imagine a line or a given line, place your right foot directly in front of your left foot, touching heel to toe, arms down at your side, only begin walking when told to and then take nine heel to toe steps forward and nine heel to toe steps back as shown by the officer and are asked if they have any questions. (H, 11-14-11, p.15-16) Mr. Corrotto testified that a person has to miss a half inch or greater on one of the 18 steps to be a validated clue. He testified that failure to walk a straight line is not a validated clue but stepping of the line is. The officer did not recall whether Defendant actually stepped off the line. (H, 11-14-11, p. 98-99). Mr. Corrotto testified that there are standardized criteria for determining whether a person passed or failed a test and it is not up to the officer to deviate from those criteria or subjectively determine whether a person passed or failed the test. (H, 11-1441, p. 100) Mr. Corrotto then testified as to the nystagmus test, but that has been suppressed by the Court.

Neither party produced any other witnesses.

Judge Small suppressed the preliminary breath test (PBT) and the horizontal gaze nystagmus test (HGN) because it was apparent that Officer Brown disregarded proper protocol in administering those tests. His failure to follow appropriate procedures outlined in the training manuals for police officers and the dictates of his instructors so compromised the validity of those tests that even Judge Small had no choice but to suppress that evidence.

As Officer Brown’s admitted deviation from proper procedure, compromised every aspect of this case; from the absence of probable cause to stop the vehicle in the first place, to improper administration of the field sobriety tests.

Judge Small constantly interrupted defense counsel during his cross-examination of Officer Brown on relevant factual issues and constantly put words in the officer’s mouth until she extracted the answers that she obviously wanted. She showed complete partiality toward the prosecution in handling this evidentiary hearing. Her constant interruptions, as evidenced by the transcripts, severely interfered with and infringed on defense counsel’s right of cross-examination. There was no need for a prosecutor in the courtroom because Judge Small constantly filled the role of prosecutor in the absence of objections from the prosecutor. She constantly confronted defense counsel in his questioning of the officer, constantly chastised him for no legitimate reason and seemed to blatantly ignore the principle of impartiality in handling this evidentiary hearing. Judge Small also attacked defense counsel’s integrity for having an expert witness in the courtroom during proceedings even though there was no request by the prosecutor or the court to sequester witnesses.

Attached hereto are the transcripts of the evidentiary hearing held on October 24, 2011 and November 14, 2011, as well as the video tape taken from the police car.

ARGUMENT I

APPLICABLE STANDARD OF REVIEW

In United States v. Sanford, 476 F.3d391 (2007), the United States Court of

Appeals, Sixth Circuit, set forth the standard of review of the grant or denial of a motion to suppress:

ARGUMENT

“The officer must have probable cause to believe that the motorist has violated the traffic laws. To establish probable cause, the Government must show “reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.” United States v. Ferguson, 8 F. 3d 385, 391 (6^thCir. 1993). In determining the existence of probable cause, the officer’s subjective motivation is irrelevant. The Government bears the burden of proving the existence of probable cause.”

In holding that ‘^fit is true that so long as the officer has probable cause to believe that a traffic violation has occurred or was occurring, the resulting stop is not unlawful”, the Court in Freeman, supra, said that it could not agree that one isolated incident of a large motor home partially weaving into the emergency lane for a few feet and an instant constitutes a failure to keep the vehicle within a single lane” as nearly as practicable.” The Court also held that “Just as it does not constitute probable cause that a traffic violation occurred, the motor home’s brief entry into the emergency lane does not constitute probable cause that Adams was intoxicated,” The Court went on to say, “As stated by the Tenth Circuit, “if failure to follow a perfect vector down the highway or keeping one’s eye on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.”

TRAFFICSTOP

The traffic stop began with an investigation that started with an anonymous 911 call from a person who generally conveyed a message that brought attention to the vehicle. That caller either does not exist, misrepresented his or her identity, and/or has not been produced as a witness for other reasons. The caller lacked specific information to show sufficient knowledge and/or reliability pursuant to Alabama v. White. 496 U.S. 325 (1990), and it is generally conceded by the officer that the 911 call was not the reason or basis for the traffic stop. The person cannot be located through various databases, and the police and prosecutor have failed and/or refused to provide contact information for the mystery caller. As such, the 911 call cannot be used to support the traffic stop.

The video has been admitted into evidence. The video shows that Mr. Landau’s vehicle was too far away to closely examine at 23:56:35 when the video starts, and the traffic stop occurs less than a minute after the video begins. As seen from the video and revealed through examination of Officer Brown, weaving within the lane of travel was not a reason to stop the vehicle. Weaving, if any was present, was a matter of inches and lasted merely moments, especially since the officer did not follow Mr. Landau for more than a single minute. It was not pronounced or sustained, and vehicular corrections were not dramatic. The law on this point does not support a traffic stop in this instance. In the immediate case, the alleged weaving was neither pronounced nor sustained, and the officer admitted that he did not stop the vehicle for weaving within its lane of travel. To the extent that the Court attempted to elicit testimony from the officer to justify the traffic stop, the Court improperly interjected its own preconceived opinions in lieu of the officer’s testimony before reviewing the video. [Tr. At 52.) Weaving within the lane of travel is not against the law in Michigan, it is not indicative of impaired driving, and the officer disclaimed this as a reason for the traffic stop. [Tr. 13, 51]. The appropriate statue in this regard under Michigan law is MCL 257.642, which states:

257.642 Roadway divided into 2 or more lanes; applicable rules; designation as HOV lane; restrictions; exceptions; violation as civil infraction.

(1) When a roadway has been divided into 2 or more clearly marked lanes for traffic the following rules in addition to all others consistent with this act shall apply:

(a) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.

[Emphasis added.]

See also United States v. Freeman, 209 F. 3d 464 (6^thCir 2000) and United States v Lyons, 7 F. 3d 973, 976 (10^thCir 1993) “If failure to follow a perfect vector down the highway or keeping one’s eye on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.”

Despite the officer’s protestations that he did not stop the vehicle for weaving, he claims on video in response to Mr. Landau’s initial inquiry, “your weaving all over the place!”

Clearly that statement was not true.

257.643. Distance between vehicles; violation as civil infraction.

Mr. Landau submits that every published opinion under MCL 257.643 involves a motor vehicle accident. To the extent that the officer imposed matter taught to him by his 9^thgrade driver instructor, the legality of the traffic stop cannot be supported. If the stance is enforceable as the officer portrayed in Court, the statute has no guidelines or standards and it is void for vagueness. v. Hrlic, 277 Mich App 260, 263; 744 NW2d 221 (2007). To the extent that the statute is not void for vagueness, the officer’s testimony that he could stop any vehicle traveling at 50 mph within 100 feet of the vehicle in front of it shows that this officer’s interpretation of the statute is simply not reasonable. [Tr. at 48]. In the video tape admitted by the prosecutor, nearly every vehicle recorded by the officer’s camera was driving within 100 feet of the other vehicles traveling along Square Lake Road. It is further submitted to the Court that 90 percent of the vehicles that travel north and south of the Court’s front entrance along Telegraph travel within distances that fall far short of the officer’s high school driver’s education program’s recommendations, maintaining distances identical to those exhibited by Mr. Landau on the night of the traffic stop.

STOPPING SEQUENCE AND PRE-ARREST SCREENING

In the absence of warrant, a police officer may arrest a person only if there is’t reasonable cause” to believe that a crime has occurred. MCL 764.15. It is submitted that reasonable cause and probable cause are identical but distinguishable from the lesser standard of reasonable suspicion. See, for example, People V. Champion, 452 Mich 92 (1996).

“Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors- quantity and quality-are considered in the totality of the circumstances-the whole picture, ‘that must be taken into account when evaluating whether there is reasonable suspicion.” Id. At 330 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66L. Ed. 2d 621 (1981)).

If the investigatory stop is not supported by reasonable suspicion or if the officers exceed the proper scope of the stop, then any evidence derived from the stop must be excluded from trial. Wong Sun v United State$, 371 U.S. 471, 484, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), People v LoCicero, 453 Mich 496, 508 (1996).

The U.S. Supreme Court described the difference between reasonable suspicion and probable cause in Ornelas v. United States, 517 US. 690, 695-697, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996), holding that the difference is conceptually different but difficult to define in stark legal principles:

Articulating precisely what “reasonable suspicion” and probable cause” mean is not possible. They are commonsense, nonethical conceptions that deal with “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Illinois v. Gates, 462 U.S. 213, 231, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983) (quoting Brinegar United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949)); see United states v. Sokolov, 490 U.S. 1, 7-8, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989). As such, the standards are “not readily, or even usefully, reduced to a neat set of legal rules.” Gates, supra, at 232. We have described reasonable suspicion simply as ^t‘a particularized and objective basis” for suspecting the person stopped of criminal activity, United States v. Cortez, 449 U.S. 411, 417-418, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981), and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found, see Brinegar, supra, at 175-176; Gates, supra, at 238. We have cautioned that these two legal principles are not “finely-tuned standards,” comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. Gates, supra, at 235. They are instead fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed. Gates supra, at 232; Brinegar, supra, at 175 (“The standard of proof for probable cause] is…correlative to what must be proved”); Ker v. California, 374 U.S. 23, 33, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963) (“This Cour[t] [has a] long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application”; each case is to be decided on its own facts and circumstances” (internal quotation marks omitted}}; Terry v. Ohio, 392 US. At 29 (the limitations imposed by the /fourth Amendment “will have to be developed in the concrete factual circumstances of individual cases”).

Nonetheless, the Ornelas Court held that these concepts are objective:

The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewedfrom the standpoint of an objectively reasonaþle police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact: “The historical facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.” Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19, 72 L. Ed. 2d 66, 102 S. Ct. 1781 (1982).

As such, this Court should attempt to determine whether probable cause (as opposed to reasonable suspicion) objectively existed to determine whether Mr. Landau was operating while intoxicated or impaired from “the standpoint of an objectively reasonable police officer.”

Employing objective criteria in this case — and rejecting justifications and excuses-objective analysis reveals that probable cause was lacking.

“The…events which occurred leading up to the stop” under Ornelas that this Court must look to initially are simply not justifiable. While he claims that a 911 call drew his attention to the vehicle, no 911 caller has been produced, despite protests from the defense. And while the officer claims that he stopped Mr. Landau for following another vehicle too closely, that fact is hotly contested. Moreover, the officer claims that he did not stop Mr. Landau for weaving, even though he immediately claims in the video supplied to this Court that Mr. Landau was “weaving all over the place.” Even if the officer had a hunch that Mr. Landau was intoxicated or impaired by alcohol, he was unable to articulate these reasons consistent with objective criteria.

The stopping sequence was consistent with that of a safe, sober motorist. See NHSTA Manuel at V-10.

The officer makes brief contact with Mr. Landau and quickly retreats to his car at 23:58:10 until 23:58:52. This is again less than a minute, where Officer Brown is making quick, snap decisions without formulating the requisite level of cause to proceed to the next level of further detention. See People v, Rizzo, 243 Mich App 151; 622 NW2d 319 (2000).Officer Brown finally approaches the vehicle to perform his investigation and field sobriety tests at 00:00:44. Mr. Landau exits the vehicle consistent with Officer Brown’s command, evincing no clues or symptoms of impairment. See NHSTA Manuel at VI-6.

Nonetheless,

Mr. Landau agrees that he did not perform the test properly because he is physically incapable of doing so given his chronic lower back pain. Therefore, Mr. Landau contends that the test is meaningless.

The trial court suppressed any evidence of the PBT and HGN Tests performed by the officer because of the improper manner in which they were administered and the unreliability of the results.

ARGUMENT II

APPLICABLE STANDARD OF REVIEW

The standard of review is abuse of discretion. People v. Conyers, 194 Mich App 395, 404 (1992).

ARGUMENT

In Conyers supra, the Court of Appeals said that excessive interference in the examination of witnesses, repeated rebukes and disparaging remarks directed at defendant’s counsel and marked impatience displayed an attitude of partisanship which resulted in the denial of a fair trial. Judge Small’s conduct during this hearing reflected all of the prohibited judicial conduct mentioned above. Defense counsel also was not treated with the consideration due an officer of the court. People v.Wigfall, 160 Mich App 765,775 (1987).

The trial court may question witnesses in order to clarify testimony or elicit additional relevant information. MRE 614(b) People v, Sterling, 154 Mich App 223, 228 (1986). However, the trial court must exercise caution and restraint to ensure that its questions are not intimidating, argumentative, prejudicial, unfair or partial. Sterling, supra. Judge Small’s repeated interruption of defense counsel in his examination of witnesses, her unreasonable display of anger and impatience toward defense counsel, and her constant leading questions, which amounted to testimony, of Officer Brown during cross-examination, deprived Defendant of a due process and a fair hearing.

RELIEF REOUESTED

WHEREFORE, Defendant-Appellant, KEVIN AARON LANDAU, respectfully requests that the Order of the 48 ^thDistrict Court denying defendant’s motions to dismiss regarding the stop of his vehicle and lack of probable cause to arrest be reversed and this case dismissed against Defendant.

Respectfully submitted,

____________________________

Arthur H. Landau (P16381) o
Attorney for Defendant-Appellant

29777 Telegraph Rd., Ste. 2500

Southfield, Michigan 48034

Dated: February 21, 2012

PROOF OF SERVICE

Arthur H- Landau, Attorney for Defendant-Appellant, deposes and says that on the 21^st day of February, 2012, he served a copy of Defendant-Appellants Brief In Support of Leave To Appeal upon, the Oakland County Prosecutor’s Office, located at 1200 N. Telegraph Rd., Pontiac, Michigan 48341, by personal service.

I DECLARE THAT THE STATEMENTS ABOVE ARE TRUE TO THE BEST OF MY INFORMATION, KNOWLEDGE AND BELIEF.

___________________________
Arthur H. Landua