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15-20018 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

BERTEL FRANKLIN GIBBS, 

Defendant. 

Case No. 15-20018 

SENIOR UNITED STATES DISTRICT 

JUDGE ARTHUR J. TARNOW

MAGISTRATE JUDGE ELIZABETH A.

STAFFORD

 / 

ORDER GRANTING DEFENDANT’S MOTION FOR BILL OF PARTICULARS [20];

DENYING DEFENDANT’S MOTION TO SUPPRESS [19] 

 On June 23, 2015, Defendant filed a Motion for Bill of Particulars regarding 

Counts 3 and 4 of the indictment [20]. The Government responded on July 17, 

2015 [24]. On June 23, 2015, Defendant filed a Motion to Suppress [19]. The 

Government filed a Response on July 17, 2015 [23]. The Court held a hearing on 

these Motions on November 20, 2015. The Government and Defendant filed 

Supplemental Briefs regarding these Motions on December 18, 2015 [32; 33]. For 

the reasons stated below, Defendant’s Motion for Bill of Particulars [20] is 

GRANTED and Defendant’s Motion to Suppress [19] is DENIED.

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1. MOTION FOR BILL OF PARTICULARS [20]

Federal Rule of Criminal Procedure 7(f) (Fed. R. Crim. Pro.) provides that a 

Court may, per the request of the Defendant, direct the government to file a bill of 

particulars. Per the Rule, a “Defendant may move for a bill of particulars before or 

within 14 days after arraignment or at a later time if the court permits.” Id 

(emphasis). A bill of particulars is meant to: 

inform the defendant of the nature of the charge against him 

with sufficient precision to enable him to prepare for trial, to 

avoid or minimize the danger of surprise at the time of trial, and 

to enable him to plead his acquittal or conviction in bar of 

another prosecution for the same offense when the indictment 

itself is too vague, and indefinite for such purposes. 

United States v. Birmley, 529 F.2d 103, 108 (6th Cir. 1976). 

 Counts 3 and 4 of the indictment charge Defendant with possession with 

intent to distribute a controlled substance (cocaine base) and possession with intent 

to distribute a controlled substance (heroin). Per the briefs and the hearing, the 

evidence provided in discovery by the government that relates to Counts 3 and 4 

does not provide any evidence beyond mere presence of Defendant at the location 

where the drugs were seized on November 5, 2014 to establish Counts 3 and 4 of 

the indictment. 

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The facts pertinent to Counts 3 and 4 are summarized below. Defendant 

drove Mr. McDaniel to a Target parking lot on November 5, 2014. Mr. McDaniel 

had arranged to sell a gun to a confidential informant (CI). Mr. McDaniel 

interacted with the CI and an undercover police officer and directed them to follow 

him to another location to obtain the gun. Following a vehicle chase, Mr. 

McDaniel was thrown from the vehicle and Defendant climbed out of the window 

to flee once the vehicle was stopped. Defendant and Mr. McDaniel were then 

arrested. Mr. McDaniel had $1,500.00 on his person and some of the money had 

blood on it as Mr. McDaniel’s hands were bloody. Defendant did not sustain any 

injuries and the $80.00 taken from him had no blood on it. About ten feet from the 

location of arrest, police found a packet of crack and a packet of heroin two feet 

from Mr. McDaniel that had blood on it. Neither Mr. McDaniel nor Defendant 

made any incriminating statement to the police linking Defendant to the drugs in 

question. 

The Government has provided no information to establish that Defendant 

had knowledge of the controlled substances that were found or that he was in 

possession with intent to deliver the controlled substances listed in the counts. The 

Government has failed to provide any evidence linking Defendant to the seized 

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drugs other than the fact that Defendant was present in the vehicle and initiated the 

vehicle chase, none of which support Counts 3 or 4 of the indictment. 

Therefore, this Court grants Defendant’s Motion for Bill of Particulars as to 

the criminal activity contained in Counts 3 and 4 of the indictment. This Bill 

should include identification of any potential witnesses to the activity described in 

Counts 3 and 4, any additional police reports and/or witness statements compiled 

as to the events of November 5, 2014 and any subsequent investigation that may 

have been done concerning the narcotics referred to in those Counts. 

2. MOTION TO SUPPRESS [19]

Defendant’s Motion to Suppress concerns the seizure of drugs on August 16, 

2014, detailed in Count One, and the seizure of a firearm on October 30, 2014, 

detailed in Count two. 

a. AUGUST 16, 2014 SEIZURE OF DRUG EVIDENCE

On August 16, 2014, Defendant was driving a vehicle alone in the area of 

Ypsilanti Township. Defendant was observed failing to make a complete stop at a 

stop sign, appearing to travel at a high speed, and making an abrupt turn. Deputy 

Krings pulled over Defendant for disobeying the stop sign. When Defendant was 

pulled over, he admitted to the Deputy that he was driving without a driver’s 

license and that he only had a driver’s permit. The Deputy testified that he smelled 

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marijuana in the vehicle. According to the Deputy’s testimony at the hearing, 

Defendant was ordered out of the vehicle so the Deputy could place him under 

arrest for driving without a license. After Defendant was placed in handcuffs, the 

Deputy performed a pat down search of him for drugs and weapons. During the pat 

down, the Deputy felt a foreign object in the seam of the pants near the groin area 

that was not consistent with the feel of the seam of a pair of jeans. The Deputy 

shook the pant leg of Defendant and a small package of suspected crack cocaine 

and some loose-leaf marijuana was dislodged. 

Defendant seeks to suppress this evidence based on the argument that he was 

illegally arrested because of driving alone with a permit rather than a license is a 

civil infraction and not a misdemeanor offense. Additionally, Defendant argues 

that the officer did not arrest him when he exited the vehicle since the video shows 

him telling Defendant “I’m going to put handcuffs on you, it doesn’t mean you’re 

going to jail. I just don’t know who you are, OK?” Defendant argues that this 

testimony, as well as the Officer’s report that indicates Defendant was “detained” 

for “investigation” upon being removed from the vehicle, demonstrates that his 

search of the Defendant was not done incident to arrest, and instead has to meet 

Terry standards. Terry v. Ohio, 392, U.S. 1, 28-29 (1968). Defendant argues that 

the pat down violated Minnesota v. Dickerson’s “plain touch” or “plain feel” 

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doctrine, and that the drug evidence seized was not immediately identifiable as 

contraband that could be lawfully seized pursuant to this exception to the warrant 

requirement. 508 U.S. 366 (1993). 

Whether Defendant committed a misdemeanor or a civil infraction by 

driving with a permit without a licensed driver in the vehicle depends on whether 

Defendant’s permit was issued under the Graduated Licensing Scheme or under the 

Temporary Instruction Permit scheme. Michigan’s Graduated Licensing Scheme is 

governed by MCL 257.310e. Under this provision, if a driver is pulled over and 

does not have a licensed driver in the vehicle, than a civil infraction has occurred, 

not a misdemeanor offense. MCL 257.310e(11). A person issued a permit under 

the Graduated Licensing Scheme is only covered until they are 18. MCL 

257.310e(8) provides that a Graduated License expires once a person turns 18 and 

becomes a Level 3 full license. On the other hand, if Defendant was issued a 

permit after he turned 18, then his license would not be subject to the Graduated 

Licensing Scheme and instead would be classified as a Temporary Instruction 

Permit governed under MCL 257.306. Under this regime, if Defendant was driving 

by himself, it would be a misdemeanor offense under MCL 257.901. 

 Defendant was born on November 26, 1995, and the seizure of the drugs 

occurred on August 16, 2014. Since Defendant was 18 years old on the date of the 

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arrest and had a driver’s permit, the permit would have been a Temporary 

Instruction Permit governed by MCL 257.306. Therefore, the arrest was lawful and 

the offense of driving without a licensed driver in the vehicle for a permit holder in 

fact constituted a misdemeanor. Consequently, the evidence was lawfully obtained 

in a legal search incident to arrest. 

Defendant further argues that the arrest cannot be considered valid since the 

Deputy did not state that Defendant was under arrest. Even if Defendant was not 

yet placed under arrest as he argues, the search incident to arrest “exception 

actually applies once the police are in possession of probable cause to make an 

arrest.” United States v. Coleman, 458 F.3d 453, 458 (6th Cir. 2006). The Deputy 

had probable cause to arrest Defendant once he had the information that Defendant 

was driving with a permit without a licensed driver in the vehicle. Therefore, 

regardless of whether he was arrested at the time of the search or not, the search 

was legal and the Motion to Suppress is denied as to the drug evidence. 

b. OCTOBER 30, 2014 SEIZURE

On October 30, 2014, Defendant was a passenger in a vehicle traveling 

through the City of Ypsilanti. Thomas Gray (Grey) was driving the vehicle. Officer 

Kofhal (Kofhal) testified that she saw the vehicle driving without its headlights on, 

so she pulled it over. Grey presented a Michigan State vehicle identification and 

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reported to Kofhal that he had a suspended driver’s license. In response, Grey was 

ordered out of the vehicle, handcuffed and placed in Kofhal’s patrol vehicle. 

Kofhal returned to the vehicle and questioned Defendant. Defendant reported that 

he did not have identification with him, and falsely identified himself as Marquis 

Patterson. The name and birthday were processed through LEIN and returned with 

no record. Defendant provided a new birthdate, which again returned no record. 

While speaking with Kofhal, Defendant nervously zipped and unzipped his 

hoodie. He was asked to exit the vehicle, and Kofhal attempted to temporarily 

detain him for providing a false name to a police officer. By the time that 

Defendant was exiting the vehicle, a second police officer, Deputy Wallace 

(Wallace), had arrived at the scene. After Kofhal secured one of his hands, 

Defendant attempted to flee. Kofhal was able to take Defendant to the ground. He 

was instructed to stop resisting, but continued to resist. While attempting to subdue 

Defendant, Kofhal observed that he had a small black firearm in his left hand 

against his chest, which was seized by Kofhal. 

Defendant challenges the seizure of the gun based upon his contention that 

the original stop of the vehicle was illegal. Additionally, Defendant also asserts 

that his seizure from the vehicle was illegal because there was no probable cause. 

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For a traffic stop to be constitutional, “an officer must have probable cause 

to believe that a traffic violation has occurred or was occurring.” United States v. 

Gaskin, 587 F. App’x 290, 294 (6th Cir. 2014), cert den. 135 S. Ct. 1579 (2015). 

This probable cause is not negated, even in the face of uncertainty concerning the 

justification for the traffic stop, so long as any mistake of fact that the officers may 

have made was reasonable. Id at 295, citing United States v. Hughes, 606 F.3d 311, 

320 (6th Cir.2010); United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th 

Cir.2003) (“A traffic stop based on an officer's incorrect but reasonable assessment 

of facts does not violate the Fourth Amendment.”). 

At the hearing, Kofhal testified that she made the traffic stop because she 

believed that the vehicle’s headlights were out. When questioned about the video 

where some light is seen in front of the car, Kofhal testified that the source of that 

light was the running lights, located underneath the headlights. Throughout the 

hearing, Kofhal testified that it was her belief that while the brakes lights were 

working, and the running lights were on, the headlights were not turned on [29 at 

37¶1-13; 45¶19-25; 46¶1-3; 48¶1-7]. The video evidence supports a finding that it 

is reasonable for Kofhal to have believed that the headlights were out, but the 

running lights were on. Additionally, according to the video, when Kofhel arrested 

the driver of the vehicle, he remarked that he thought the headlights were 

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automatic and that he did not know they were not on [29 at 54¶24-25; 55¶¶1-9]. 

Since the driver himself does not dispute in the video that the headlights may have 

been off, it is reasonable that Kofhel thought they were off, rendering the traffic 

stop legal. 

Kofhal had a legal right to detain Defendant and ascertain his identify under 

Michigan law. Section 324 of Michigan’s Vehicle code (MCL 257.324) provides: 

(1)A person shall not do any of the following: 

(h) Furnish to a peace officer false, forged, fictitious, or 

misleading verbal or written information identifying the person 

as another person, if the person is detained for a violation of 

this act or of a local ordinance substantially corresponding to a 

provision of this act 

There is no language in the statute limiting its application to the driver of the 

vehicle, but rather it applies to people “detained for a violation of this act.” The 

Supreme Court has held that all occupants of a vehicle are seized once a traffic 

stop is effectuated. Brendlin v. California, 551 U.S. 249, 263 (2007). Since 

passengers are undisputedly detained during a traffic stop, the statute would apply 

to Defendant, as a passenger and Defendant would not be lawfully permitted to 

give Kofhal a false name. 

Additionally, the Sixth Circuit has held that it is not a violation of the Fourth 

Amendment for a police officer to ask a passenger for identification, even if there 

is no probable cause for a reasonable suspicion of wrongdoing by the passengers. 

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Thus, Kofhal had a right to obtain Defendant’s identification, even though he was a 

passenger. See e.g. United States v. Alexander, 467 F. App'x 355, 362 (6th Cir. 

2012); United States v. Smith, 601 F.3d 530 (6th Cir.2010); United States v. Ellis, 

497 F.3d 606, 613–14 (6th Cir.2007). 

When Defendant was asked about identification, he told Kofhal that he did 

not have his license with him. Accordingly, it would be expected that his 

information would be contained in LIEN since his statement implied that he had a 

license, just that he was not carrying it. Therefore, once Defendant had given 

Kofhal a name and birthdate that was not included in LIEN; and further once 

Defendant changed his birthdate to a different day and still revealed no results, 

Kofhal had probable cause to believe that Defendant was providing false 

information concerning his identity, which is a violation of Michigan law that 

subjected him to arrest pursuant to MCL 257.901. 

The traffic stop of the vehicle was reasonable, and Kofhal’s detention of 

Defendant for providing a false name to a police officer was legal. Defendant’s 

contention that he was arrested for nervously playing with his hoodie is incorrect. 

Accordingly, Defendant’s Motion to Suppress [19] the firearm evidence is denied. 

IT IS ORDERED that Defendant’s Motion for Bill of Particulars [20] is 

GRANTED. 

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IT IS FURTHER ORDERED that Defendant’s Motion to Suppress [19] is 

DENIED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: February 23, 2016 Senior United States District Judge 

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