STATE OF MICHIGAN
IN THE 48th JUDICIAL DISTRICT COURT
THE PEOPE OF THE STATE OF MICHIGAN,
vs Case No. 11-20227
KEVIN AARON LANDAU CIRCUIT COURT
NO. 2012-DA9591-AR
Defendant.
OPINION
BEFORE THE HONORABLE KIMBERLY SMALL
Bloomfield Hills, Michigan – Monday, January 30, 2012
APPEARANCES:
For the People: ALICE ROJAS
Oakland County Prosecutor’s Office
1200 N. Telegraph Road
Pontiac, Michigan 48341
(248) 858-0656
For the Defendant: WILLIAM J. NAZI (P56406)
Maze Legal Group, P.C.
831 Monroe Street
Dearborn, Michigan 48124 (313) 792-8800
Videotape Transcription Provided By:
Deanna L. Harrison, CER 7464
Advantage Reporting #8526
248-369-8417
TABLE OF CONTENTS
WITNESSES PAGE
None.
EXHIBITS Introduced Admitted
None.
Bloomfield Hills, Michigan
Monday, January 30, 2012 – 9:52 a.m.
THE COURT: All right. Counsel, you want to call your next case, please?
- ROJAS: Calling the case of People v Kevin
Landau, case number 11-20227. Alice Rojas appearing on behalf of the People.
ALJ SMITH: All right. Not quite ready with that. Everybody be seated, please. Anything else summary in nature? This is an opinion that’s going to take me about 15 minutes to read into the record.
- ROJAS: No, Your Honor.
THE COURT: All right. Go ahead and do that, and then we’ 11 move forward on anything that’s summary in nature, and Landau people, just sit tight for just a few minutes.
(9:53 a.m., proceedings passed)
10:00 a.m., proceedings resumed)
THE COURT: I’m ready to go forward with the Landau matter.
- ROJAS: Okay.
THE COURT: I thought that maybe you guys had something really fast to — to go on the record with, but obviously not
Unless, Erica, if you want to see if she’s there. Don’t know if she wants to be in court or not, but if so, I’m ready to go forward with something. All right. Calling the case of People versus Landau, case number 11-20227. We’ll at least start there. Mr. Maze, I’ 11 have you put your appearance on the record.
- MAZE: William Maze on behalf of Mr. Landau, Your Honor.
ALJ SMITH: Thank you. Mr. Landau, r need you to state your full name.
KEVIN LANDAU: Kevin Aaron Landau.
THE COURT: Thank you. Pill right.
Prosecution, if you’ 11 put your appearance on the record, please?
- ROJAS: Sure. Alice Rojas, appearing on behalf of the People.
THE COURT: All right. You folks can be seated, Ms. Rojas, is there anything that is summary in nature that can go forward?
- ROJAS: Yes, Your Honor.
THE COURT: All right. Folks, you can stay exactly where you are.
Why don’t you go ahead and call that case?
(At 10: 02 a.m. t proceedings passed)
(At 10: 03 a.m., proceedings resumed)
THE COURT: We’re back on the record with People versus Landau. All right.
Today’s the date and time scheduled for this Court to give her decision on Defendant’s motion to dismiss and/or suppress.
A little bit of history is necessary.
On May 16th, a complaint of last year, a complaint and warrant was filed, alleging that Kevin Aaron Landau, the Defendant, operated his motor vehicle in violation of the statute MCL 257. 625, second offense was alleged. On May 12th, 2011, the Defendant was arraigned; the matter was set for a pretrial on June the 13th of last year. On that date, the Court ordered all motions to be filed by June the 27th. On or about June the 27th, the Defendant did file a motion to suppress evidence, for an evidentiary hearing, and a motion to dismiss the criminal charges. I did set this matter for an evidentiary hearing on August the 8th. On that date, the People filed a response to the Defendant’s motion, and the evidentiary hearing was adjourned, pursuant to the parties’ request; to October the 24th of last year.
On that date, Officer Dan Brown did testify. I will go over his testimony.
On direct examination, he testified that on March the 26th, 2011, just prior to midnight, he was dispatched to investigate a possible drunk driver in the area of Woodward and Square Lake, which of course, as we know, is located in the Township of Bloomfield. The dispatch resulted from a 911 call that specified the driver of a black Lexus with Michigan license plate 8KJU40 as the possible drunk driver.
Officer Brown testified that he was able to locate and follow the described vehicle within less than a minute from the dispatch. He testified that he observed the vehicle drifting within its lane of travel and following a vehicle too closely. He also testified that he followed the vehicle for approximately a quarter of a mile, and based on his observations, Officer Brown indicated that he initiated a traffic stop.
Officer Brown went on to testify that when he made contact with the Defendant, he detected an odor of intoxicants. He testified that the Defendant admitted to consuming about two glasses of wine.
Officer Brown testified that he asked the Defendant to perform some field sobriety tasks. First, the alphabet. Next, the backward number count from 99 to 73; also, the one-legged stance, heel-to-toe, and the horizontal gaze nystagmus test.
He testified that the Defendant completed the alphabet test. On the backward count, he missed number 80, lost his balance more than once while attempting the one-legged stance, and did not walk heel—to-toe or in a straight line during the walk and turn. He also testified that he observed nystagmus in both of the Defendant’s eyes during the test.
Officer Brown testified that he asked the Defendant to undergo a preliminary breath test testified that he observed the Defendant for approximately 12 to 15 minutes prior to administering — administering that preliminary breath test, and indicated that the Defendant had not eaten, consumed any liquids, or smoked while he observed the Defendant. He also testified the Defendant agreed to take the preliminary breath test, which registered a 118. He testified he advised the Defendant that he was under arrest for drunk driving.
Now, on cross-examination, Officer Brown testified the Defendant was following a vehicle within two car lengths while traveling 50 miles per hour, and testified that a safe distance is approximately five car lengths. Officer Brown testified the Defendant had to tap his brakes to keep from hitting the vehicle he was following.
He testified the Defendant indicated prior to the field sobriety tests that he did have lower back pain, He testified that he did not administer the horizontal gaze nystagmus test according to the training manual, and he indicated that he doesn’t follow the manual to the letter. He also testified that he did not ask the Defendant when he had last smoked or consumed any alcoholic beverages or liquids.
On an adjourned date, on November 14th, 2011, the Court continued the evidentiary hearing, and heard the testimony of Tony Corroto, that’s C-o-r-r-o-t-o. The Court did qualify him as an expert in the National Highway Traffic and Safety Administration manual protocol.
Mr. Corroto testified that the NHTSA manual states that prior to havinq a motorist exit their vehicle, officers should conduct a pre—exit interview, which consists of, among other things, having the subject recite the alphabet and perform the backward count. Mr. Corroto testified the NHTSÄ manual states that the horizontal gaze nystagmus test, the walk and turn, the one-leg stand, should be performed in that order, or the result of the test will be compromi sed . He testified that the horizontal gaze nystagmus test must be performed as instructed in the NHTSA manual to be valid. He also testified that Officer Brown did not perform the horizontal gaze nyštagmus test according to the NHTSA manual Specifically, he testified that the smooth pursuit was too fast, and that there were not enough passes, and that he did not check for tracking of the Defendant’s eyes.
On cross-examination of the expert, he testified that the alphabet and the backward count tests were the same tests regardless of whether they were conducted prior to having the subject exit the vehicle, Or after. Mr. Corroto testified that pursuant to the NHTSA manual, the one-leg stand by itself was 65 percent accurate in determining whether the subject had a .10 percent or greater blood alcohol level. The Court did admit into evidence two exhibits; the in-car video and the NHTSA manual. At the conclusion of the evidentiary hearing, the Court requested the parties to submit their respective positions in brief form. Both did so. The last one to be filed was December the 7th.
The Defendant filed that brief, indicating that Officer Brown unlawfully stopped the Defendant that the Defendant was unlawfully arrested, and the People failed to establish that the horizontal gaze nystagmus test was properly performed, and the preliminary breath test should be excluded.
The Court did review all of the briefs, the exhibits, testimony, and I set the matter for a decision today .
Law analysis — we’ re all pretty familiar with the law in this case. Let me just highlight a few of the pertinent areas.
Police officers may stop a vehicle, detain the driver, and issue a citation for any witnessed violation of the motor vehicle code or civil infractions. That’ s pursuant to MCL 257 . 7241, People versus Hr-lic, H-r—l-i-c, which is found at 277 Mich App 260. MCL 257 . 643 provides that the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for speed of the vehicles and the traffic upon the conditions of the highway. Absent a traffic or equipment violation to stop a motor vehicle, the constitution requires an individualized, articulable and reasonable suspicion that a vehicle or one of its occupants violated the law. That’s People versus Burrell, and many others, 417 Mich 439. The totality of the circumstances test i $ used in determining the reasonableness of the stop. People versus Christie, 206 Mich App 304 , Fewer foundational circumstances are necessary to support a finding of reasonableness when moving vehicles are involved, and fewer facts are necessary to support a stop than a search – than a stop and search. Citizen informants reporting suspicious activity should be deemed inherently reliable when the information is sufficiently detailed and corroborated within a reasonable period of time by the officer’s own observations. People versus Took, Took, at 403 Mich 568. Now, the Defendant in this case argues that Officer Brown unlawfully stopped him. The Defendant argues that the information the 911 caller provided cannot be used to support the stop. The Defendant also argues that Officer Brown’ s observation of the Defendant weaving within his lane is insufficient to justify the stop. Finally, Defendant argues that the following too close is not a basis for the stop, because every published case dealing with the civil infraction this civil infraction involved a motor vehicle accident.
Let me move on to the 911 call first. Here, the911 caller reported that a black Lexus, specific car type, specific car color, with Michigan license plate 8KJU40, was a possible drunk driver. Officer Brown quickly located the Defendant, within a minute of the time that he received the dispatch. He observed the Defendant weaving within the lane. Officer Brown also observed the Defendant following too closely.
I did look at the video, which the parties did admit into evidence, and it confirms Officer Brown’ s test imony , In fact, not only does the video appear to capture the Defendant r s tires touching the lane divider on one occasion, it also captures the Defendant applying his brake for at least five seconds to avoid the vehicle in front of him. There is no doubt that following too closely is a civil infraction. It does not require an accident.
There is no doubt in this Court’s mind after reviewing the video and hearing the testimony by the officer, that the Defendant was in violation of the motor vehicle code, which would have given the officer legitimate and legal reason to stop the Defendant’s vehicle. But that doesn’t end my discussion.
Ms. Smith, will you do me a favor? There is a child that is screaming in the hallway. It’s interfering with the record. Could you just ask them to shift one way or the other? Thank you.
The Court finds that 257. 7421, which authorizes a police officer to stop a vehicle, detain the driver, and issue a citation for any witnessed violation of the motor vehicle code or civil infraction, was enough for the officer to stop the Defendant.
But even assuming for purposes of this particular discussion that that wasn’t enough to stop, the Court finds that the officer did have reasonable articulable suspicion to believe that the Defendant was in viol – or the individual operating that motor vehicle was in violation of the law.
The 911 call r as I’ve indicated, the law presumes to be reliable information. There was very specific information that was given to the officer pursuant to the 911 call. Officer located the vehicle within one minute of the dispatch.
So, even if, for purposes of this discussion, there was not a civil infraction that was committed in the officer’ s presence, there certainly was, based on the 911 call, all the information that was given by the 911 caller, and the officer’s observations, the officer is not required to wait until the Defendant hits somebody before stopping the vehicle.
The Court finds the Defendant did commit a civil infraction, and also the police officer, Officer Brown, did have reasonable articulable suspicion to stop the vehicle. So the Court will deny the Defendant’s motion as it relates to the stop. Let’s move on to the arrest an officer may arrest an individual where there is probable cause to believe that an offense has occurred and that the Defendant comxaitted it. That’s People versus Champion, 452 Mich 92.
Probable cause to arrest exists where the facts and circumstances within an officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. In Michigan, it’s illegal to operate a motor vehicle on a highway if a person operating the motor vehicle has an alcohol content of .08 grams or more per 100 milliliters of blood, or 210 of breath. Now, the Defendant asserts that Officer Brown lacked the requisite probable cause to arrest him. The Defendant. asked the Court to analyze the matter using the methods outlined in the DWI Detection and the Standardized Field Sobriety Tests Training Course. The Defendant acknowledges that the course – course is not binding on this court. That the course is not binding on this Court.
The Defendant points out that he was able to safely stop and exit his vehicle, and in doing so, did notexhibit any behavior that would suggest he was intoxicated. Defendant states that he performed the alphabet and the backward count test in a manner consistent with a sober person, and the only flaw is when he skipped the number 80. The Defendant also argues that he properly performed the walk and turn, contrary to Officer Brown’s testimony. Lastly, the Defendant argues — strike that. The Defendant agrees that he failed the one—leg stance t but asserts that the test is meaningless, because he told Officer Brown that he had lower back pain.
Here, the Court’s going to analyze the case using existing Michigan law, not non-binding authority, which is what the Defendant is requesting this Court adopt.
Officer Brown did observe the Defendant weaving within his lane, and following a vehicle too closely, both of which the Court was able to see on the in-car video. As previously mentioned, it appeared to the Court that the Defendant’s tire touched the lane marker on one occasion; the officer also was in receipt of the information given by the 911 caller.
When Officer Brown stopped the Defendant, he detected the odor of intoxicants when he made contact with the Defendant. The Defendant initially admitted to consuming one glass of wine, but quick stated that he had consumed two glasses of wine. Officer Brown then asked the Defendant to exit the vehicle, asked him if he had any physical ailments that would preclude him from performing the field sobriety tests. The Defendant stated that he did have lower back pain, but indicated that he could perform the field sobriety tests. As a result, Officer Brown asked the Defendant to perform the one-leg stand. The Defendant admitted he failed that test. The video shows the Defendant lost his balance more than once, and was unable to perform the test. In fact, every time the Court reviewed the in-car video, which was numerous times, the failure was more and more evident.
The People point out that the NHTSA manual reports that the one-leg stand by itself is so accurate that an officer is able to determine within a 65 percent accuracy rate that — what the subject’ s blood alcohol level is, or more specifically stated whether or not it -is beyond the .10 percent.
At that point, Officer Brown had much more evidence suggesting intoxication. He confirmed and observed the bad driving, the odor- of intoxicants, the failed one—leg stand, the backward count, which number 80 was missed.
The Court finds that all these facts taken together were sufficient to warrant a man of reasonable caution in the belief that the Defendant was frankly in violation of the law.
Nevertheless, Officer Brown didn’t arrest the Defendant then; instead he administered the walk and turn. Officer Brown testified the Defendant failed to walk a straight line and did not place his heel to his toe as instructed. In reviewing the video, the Court could not see the feet of the Defendant at that point, though the failure was pretty evident to this Court, albeit I would not put in the category of egregious. The Court disagrees with the Defendant that he completed the test properly. The video does establish the Defendant doesn’t listen to the instructions and attempts to perform the test before Officer Brown finishes instructing him. Second, the Court saw the Defendant was unsteady and didn’t appear to be walking in a straight line as Officer Brown did testify.
Taking all the facts into consideration, understanding the standards the Court is to apply in determining whether probable cause to arrest exists, and applying those facts to the law, the Court finds Officer Brown did have sufficient probable cause to arrest the Defendant.
Now, you will notice in my recitation I did not consider the horizontal gaze nystagmus test. The Court agrees with the Defendant that the horizontal gaze nystagmus test cannot be considered by this Court, and that was pursuant to the manual in administering the test, the officer is looking for three clues, went over that in the testimony I don’t need to belabor the record on this particular point. But because Officer Brown admitted that he did not follow the manual on this one, this is a specific test requiring that.
The Court finds the horizontal gaze nystagmus test is not to be admitted, and the Court did not consider that test in her finding.
I also will go on to the law relating to the preliminary breath test. The administrative rules do state that a preliminary breath test may be performed only after it’ s been determined that the person has not smoked, regurgitated, or placed anything in his or her mouth for at least 15 minutes.
There are limited circumstances where a PBT can be admitted into court; obviously, none of those are before this Court at this particular time.
The Defendant argues that because the officer did not observe the Defendant for the 15 minutes, obviously, the Defendant – and did not ask the Defendant when the last time was he drank, ate, regurgitated, smoked, any of those activities that would affect the trustworthiness of the preliminary breath test as it relates to a tool of probable cause to arrest, the officer did not comply with the administrative rules requiring not necessarily observation, but determination that the person has not smoked, regurgitated, or placed anything in his or her mouth fot at least 15 minutes. So based on that, the Court did not in her decision consider the preliminary breath test result.
So, for all of the reasons that I have just stated above, the Court denies the Defendant’s motion in part; that is denies the Defendant’s motion to dismiss based on lack of probable cause to stop, based on lack of probable cause to arrest. The Court does grant the Defendant’s motion as it relates to the preliminary breath test and non—consideration of the horizontal gaze nystagmus test.
Okay. I think that’s all 1 have to say on the matter today.
- MAZE: Thank you very much, Your Honor. With due respect to the Court, I would ask that the Court issue a stay so we can explore the issues of the following too closely and the citizen call on an appeal.
THE COURT: All right, Counsel, if you want me to consider a stay, you’re going to need to put it in writing, giving the prosecution an opportunity to respond. But I would recommend you do it sooner than later,
- MAZE: I will. Thank you very much, Your Honor.
THE COURT: Also, just so the record reflects, 1 am going to hand back the Bloomfield Township Police in— car video. I believe it’s the People’s copy, so let me hand it back to you, so the record reflects that the Court no longer has retained it.
- MAZE: Thank you very much, Your Honor .
THE COURT: You are welcome. It’s got a People’s sticker on it, but I don’t know whose it is. All right, And Counsel, let me give you back your Standardized Field Sobriety Testing NHTSA manual.
- MAZE: Thank you very much, Your Honor.
(At 10:25 a.m, proceedings concluded)
CERTIFICATION
I certify that this transcript, consisting of 21 pages, is a true and accurate transcription, to the best of my ability, of the video proceeding in this case before the Honorable Kimberly Small on January 30 f 2012, as recorded by the clerk,
Videotape proceedings were recorded and were provided to this transcriptionist by the District Court and this certified reporter accepts no responsibility for any events that occurred during the above proceedings, for any inaudible and/or indiscernible responses by any person or party involved in the proceedings, or for the content of the videotape provided.
Deatut.a 2 gŒa.uioan
Date: February 24, 2012 / s/ Deanna L. Harrison, CER 7464 Advantage Reporting
3600 Maureen Lane
Davisburg, MI 48350
(248) 369-8417