STATE OF MICHIGAN

SIXTH JUDICIAL CIRCUIT COURT (OAKLAND COUNTY)

THE PEOPLE OF THE

STATE OF MICHIGAN,                                                                         Circuit Court Number

2012-DA9591-AR

V

KEVIN AARON LANDAU,

Defendant.
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MOTION

Proceedings had and testimony taken in the above-entitled matter before the HONORABLE DENISE LANGFORD MORRIS, Circuit Court Judge, Pontiac, Michigan, on Wednesday, March 14, 2012 .

APPEARANCES:

For the People:                       MR. JOSHUA J. MILLER (P 75213)
Assistant Oakland County Prosecutor
1200 N. Telegraph
Pontiac, Michigan 48341
(248) 858-0656

For the Defendant:                 MR. ARTHUR H. LANDAU (PI 6381)
29777 Telegraph Road, Suite 2500
Southfield, Michigan
(248) 948-0893

Reported By:                           Marilyn J. Jones, CSR 0935
Certified Shorthand Reporter
(248) 858-8951

TABLE OF CONTENTS

WITNESS: PEOPLE                                                                                     PAGE
None             

WITNESSES: DEFENDANT
None

EXHIBITS:                                                        Identified                                Received
None

Pontiac, Michigan
Wednesday, March 14, 2012  9: 06 a.m.

THE CLERK: Calling Docket Number 30, People versus Landau. Case Number 12-DA9591 -AR.

1. MILLER: Good morning, your Honor.

Joshua J. Miller on behalf of the People.

1. LANDAU: Good morning, your Honor. For the record Arthur Landau on behalf of Kevin Landau.

I will argue as long as my throat allows me to.

Judge, pursuant to 7. 103, I think, it’s (B) (4) , we have to go ahead and notice up for hearing the application for leave to appeal that was previously filed on February 21st.

This was an application for leave to appeal the order of 48th District Court denying defendant’s motion to dismiss regarding stop and arrest. His stop and arrest.

We have submitted an application for leave to appeal in this case, although, it may have been improperly written as brief of defendant felon in support of leave to appeal.

But, it was an application for leave to appeal. With that application for leave to appeal, your Honor, we also submitted all of the transcripts and the video that was previously admitted into evidence in 48^th District Court.

So, the brief is on file. The court rule indicates we have to just notice it up for hearing. As a courtesy, we have supplied all of the transcripts to brother counsel so that he is in a position now to go ahead and begin preparation of any brief in opposition to our brief.

If the Court wants, T can certainly go through the entire scenario that we’ve indicated in our brief in support of our application for leave to appeal.

If the Court desires that I do that at this point, I will; otherwise, the brief has been previously filed and is in the possession of the Court.

THE COURT:    All right. It’s up to you. You can stand on your brief if you choose.

1. LANDAU: I can go ahead and – –

THE COURT:    It’s up to you, counsel. This is your time to argue.

1. LANDAU: Okay.

THE COURT:    This is your motion day.

1. LANDAU: Your Honor, this was a case that arose as a result of a stop of the defendant on March 26th, 2011 , and his arrest for operating a vehicle under the influence of — —

THE COURT:    I’m sorry. Is your client present?

1. LANDAU: No.

THE COURT:    So, are you waiving his appearance

1. LANDAU: Yes, I am, your Honor.

THE COURT:  — for purposes of this motion?

1. LANDAU: Yes, your Honor.

THE COURT:    Go ahead.

1. LANDAU: Thank you.

Motions were filed in the 48th District Court for suppression of all evidence relating to an illegal, what we contend to be an illegal stop, search, and seizure and detention as a result of a stop without probable cause where there was no reasonable, articulable suspicion or probable cause that defendant violated any traffic laws or was committing or had committed a crime.

There was an evidentiary hearing, your Honor, in this case both on October 24th and November 14, 2011 before Judge Kimberly Small in the 48th District Court.

 

On January 31st Judge Small issued an order denying defendant’s motion to dismiss regarding the stop and lack of probable cause to arrest, but granted a portion of defendant’s motion to suppress the nystagmus result and the preliminary breath test.

 

On February 21st we then went ahead and filed our application for leave to appeal to this Court from the 48th District Court denying defendant’s motion to dismiss regarding stop and arrest.

At the evidentiary hearing the only witness produced on behalf of the prosecution was Police Officer Dan Brown.

 

Dan Brown, Officer Brown indicated that the traffic stop began with an investigation that, from an anonymous 9-1-1 call from a person who conveyed a message that brought his attention to the defendant’s vehicle. In spite of the all the protests of the defense, that caller either does not exist or misrepresented his or her identity ‘ and also has not been produced as a witness on behalf of the prosecution.

Now, we’ve had this evidentiary hearing. The 9-1-1 caller was never produced. The officer indicated he doesn’t care about the 9-1-1 caller in his testimony in 48th District Court. He hasn’t tried to locate the person, neither the prosecution nor the police have produced any purported 9-1-1 caller, and they’ve failed and refused to provide any contact information, if there is any, for this mystery caller. But to this point that caller has never been produced, never showed up at the evidentiary hearings.

Purportedly, based on that 9-1-1 call Officer Brown then followed the defendant’s vehicle.          He indicated that the defendant made certain infractions sufficient to give him probable cause for the stop.

To begin with, he indicated that he saw defendant, the defendant weaving within his lane of travel and when he was questioned about that, he indicated that that was not the reason for the stop, that the defendant did not leave his lane of travel, and that the weaving was incidental or momentary or very little, if at all, and he disclaimed that as being the reason for the stop of the vehicle.

In this case the alleged weaving was neither pronounced or sustained. The officer admitted that he didn’t stop the vehicle for weaving in his lane of travel.

Judge Small attempted to interject her own, in effect, testimony in leading the officer, and, in effect, eliciting the type of testimony that she wanted because of her preconceived notion relative to the stop in this case.

In the State of Michigan weaving within a lane of travel is not against the law nor is it indicative of impaired driving, and the officer disclaimed that as a reason for the traffic stop and there’s even a statute right on point, which we ‘ve cited, MCL 257 . 642, which states that a vehicle shall be driven as nearly as practicable entirely within a single lane. And there was no question the officer never indicated that he deviated from his lane of travel, and that any slight weaving was momentary and very little.

 

So, he did not believe that he had probable cause to stop the defendant based on weaving.

As a matter of fact, in the case of United States versus Freeman; that’s, 209 F. 3rd 464, it’s a Sixth Circuit 2000 case, the Court, and T ^T m quoting said:

“If failure to follow a perfect vector down the highway or keeping one ‘s eye on the road for sufficient reason to suspect a person of driving while impaired, a substantial portion of the public would be subject every day to an evasion of their privacy.

So, regardless of what the officer indicated, he claims, however, on the video to the defendant when he stopped him that even though he says that he did not stop the vehicle for weaving, he claimed on the video in response to defendant’s inquiry why he was stopped, and I’m quoting, “you ‘re weaving all over the place” , even though he disclaimed that as being the reason for the stop because the weaving was very slight, was not pronounced, and certainly the defendant never left his lane of travel.

The officer during his testimony then claimed that he stopped the defendant’s vehicle because he was following the vehicle in front of it too closely and the officer claimed that there was a Michigan statute that prohibited driving too closely.

However, no law has been provided by the prosecution to justify the traffic stop on this basis and we submit that the following statute applies and that’s 257. 643 that indicates, and T ‘m quoting:

“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 the vehicles and the traffic upon, and condition of the highway.

Now, the speed limit on Square Lake Road is 50 miles and hour. And the officer never even indicated what defendant’s speed was. He just said it was 50 miles an hour. At least in my recollection that testimony was never elicited as to the speed of defendant’s vehicle and the officer himself indicated, to begin with, that Mr. Landau’s vehicle was three car lengths behind the vehicle in front of him and then he said, “well, two to three car lengths behind the vehicle in front of him”, without even indicating what the speed of his vehicle was.

The officer also indicated, since is  statute that indicates a specific distance has to be between cars and the fact that he was approximately, according to the officer, three car lengths behind the vehicle in front of him doing nothing wrong, the officer5indicated, well, there may not be a statute, but your definition of unsafe and mine may differ, and then he indicated he learned this, quote, ” law” while attending driver instruction training from his ninth grade driver instruction when he got his driver’s license, because no law could be cited in support of their position that he was following too closely.

As a matter of fact, if we wanted to go ahead, even if he was going 50 miles an hour, which I don’t believe there was any testimony indicating that he was, and the officer indicating he was approximately three car lengths, anyway, behind the car in front of him, there’s nothing to indicate that he was not within a safe distance behind the vehicle he was following.

And I think most cars, most cars, given that situation, if they’re going 50 miles an hour, ordinarily are not hundred feet behind the care in front of them to begin with.

We’re contending that there’s two issues involved in this case:

One is, the first argument is 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 a violation of a traffic ordinance.

Argument two had to do with the conduct of the district court judge in, throughout the entire hearing in this matter in which she constantly interrupted defense counsel during his examination of witnesses, constantly rebuked defense counsel, and constantly made disparaging remarks to defense counsel as he’s obviously attempting to represent his client.

And I don’t think there was any question that the judge displayed a very partisan attitude, which is contrary to the canon of ethics and contrary to case law.

In United States versus Walters, it’s 492 F. 2nd Supp. 2nd 754, at page, at pages 757 through 758, 2007, the government contended that the police officer had probable cause to stop a defendant’s vehicle for a couple of violations, one, that they didn’t have proper illuminated lighting, or tail lamp, and the other that they22strayed from the right-hand lane into the center lane.

And in concluding, the officer lacked probable cause to stop the defendant contrary to the Fourth Amendment.            The United States District Court held that the officer must have probable cause to believe that the motorist has violated the traffic laws and to establish probable cause the government must show reasonable grounds for belief supported by less than prima facie proof but more than mere suspicion, that the government bears the burden of the existence of probable cause.

And, again, in Freeman in indicating that there was no probable cause to stop a motor home that strayed from its lane momentary, the court indicated that that is not indicative of impaired driving and that a substantial portion of the public would be subj ect each day a.) 12to an invasion of their privacy if in fact they were kept to a perfect vector down the highway in terms of a straight line of driving their vehicles.

In Ornelas, O-R-N-E-L-A-S, versus United States 17 U. S. 690, at pages 695 through 697, a 1996 case, the U. S. District Court held, and I ‘m quoting:

“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 of an obj ectively reasonable police officer, amount to reasonable suspicion or probable cause.”

It’ s our contention, your Honor, that the events which occurred leading up to the stop which would have to be shown to be probable cause for the stop under that case, um, um, leads to a conclusion that the stop and the arrest of the defendant in this case were simply not justifiable.

While the officer claims that the 9-1-1 call drew his attention to the vehicle, no 9-1-1 caller has been produced despite defense’s protest. And while the officer claims that he stopped the defendant for following another vehicle too closely, that is simply not true. And the statute indicates that you have to follow within a reasonable and prudent distance, and there’s no indication relative to car lengths or any other distance but just simply a reasonable and prudent distance behind the vehicle in front of you.

He already indicated that he was three car lengths behind the vehicle in front without even indicating his speed, and the officer claims further that he did not stop the defendant for weaving, even though he immediately claims in the video supplied to the court that he was weaving all over the place to the defendant.

Your Honor, there was no traffic ordinance that in any way was violated by the defendant as he was operating his vehicle. There was no probable cause to believe that the defendant was in violation of any traffic laws or ordinances, and there is no statute cited by the prosecution or the police officer or ordinance that would give the officer probable cause to believe that the defendant was violating any traffic laws or ordinances.

Thank you.

THE COURT:    Okay.   Any response?

1. MILLER: Yes, your Honor.

Very briefly, your Honor, T will not belabor the point because the People did file a response to the motion for hearing in this matter.

The People’s main point, your Honor, is that a.) 12 there is no need for interlocutory review of this matter as these issues are fully preserved or can be fully preserved at trial should Defendant Landau be convicted, and they can be raised in an appeal as of right.

And, moreover, as this Court noted two weeks 17 ago when we were here for a motion to stay proceedings in district court, given the current state of Michigan traffic stop law, an appeal on the traffic stop itself would be futile.

I have cited several cases and the 50-year history of the statute 257. 643. There has been no indication that it is a vague or otherwise void statute. Moreover, the 10th Circuit in the case that 1 cited People versus, or United States versus Hunter, 663 F. 3rd 1136, 2011, indicated that statutes of this nature have been uniformly upheld, and the Michigan Court of Appeals in two recent unpublished opinions simply differ to the trial court’s determination as to whether the officer’s testimony on this point was credible.

And in this case clearly the trial court found the testimony of the officer on following too closely to be credible, and absent any apparent error on the record, which T do acknowledge T have received the transcripts and reviewed them briefly, pardon me, your Honor, that the trial court had no reason not to find the officer’s testimony credible.

So, and moreover, as to the argument of judicial bias, the Court is well aware that judges are allowed to control proceedings in their courtroom and a review of the entire record, which is appropriate when an argument of judicial bias is raised, demonstrates that Judge Small was simply attempting to control proceedings in her courtroom.

On those bases, T would ask that the Court deny defendant’s application for leave to appeal and allow this matter to proceed to trial.

Thank you, your Honor.

THE COURT:    Thank you.

You’ve got two minutes for rebuttal.

1. LANDAU: Thank you, your Honor.

Your Honor, this case involves principles of constitutional law; namely, the Fourth Amendment.

And this case could very well be resolved without the necessity of going to trial as a matter of law.

And I think that there would be irreparable harm in not making a decision on this matter relative to those principles of constitutional law; namely, the Fourth Amendment, the case law that has been cited, and the fact that there simply was no reasons to justify this traffic stop.

Thank you.

THE COURT:    Thank you.

The Court has listened carefully to the representations by counsel.

I believe that the motion for leave to appeal should be denied.

The issues raised, specifically, the alleged illegal traffic stop, can be preserved for appellate review at trial. The Court notes should the defendant be acquitted, then, obviously, the issue would be moot.

But, Michigan law does not require a ‘real reason” to stop a motor vehicle.

In this case it’s pretty clear that Judge Kim a case of first impression. this road before.

Motion denied.

1. MILLER: Thank you, your Honor.

(At 9:27 a.m. proceedings concluded)

STATE OF MICHIGAN)

COUNTY OF OAKLAND)

I, Merilyn J. Jones, certified Reporter of the Sixth Judicial Circuit Court, State of Michigan, do hereby certify that the foregoing pages 1-17 inclusive, comprise a true and correct transcript of the proceedings and testimony taken in the matter of People of the State of Michigan versus Kevin Aaron Landau,

2012-DA9591-AR, on Wednesday, March 14, 2012.

 

 

/s/ Merilyn J. Jones
____________________________
Merilyn J. Jones, RPR, CSR 0935
Sixth Judicial Circuit Court
1200 N. Telegraph Road
Pontiac, Michigan 48341

June 8, 2012

An original signature must appear for this to be a certified copy