-1- 

STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellant, 

FOR PUBLICATION 

May 30, 2017 

9:00 a.m. 

v No. 335651 

Kent Circuit Court 

DEMETRIUS TERRELL MAGGIT, LC No. 16-004364-FH 

 Defendant-Appellee, 

Before: BECKERING, P.J., and MARKEY and SHAPIRO, JJ. 

PER CURIAM. 

 In this interlocutory appeal, the prosecution appeals by leave granted the trial court’s 

order granting defendant Demetrius Terrell Maggit’s motion to suppress his statements and 

physical evidence obtained following his seizure and subsequent search by police. We affirm the 

trial court’s ruling. 

I. PERTINENT FACTS AND PROCEDURAL HISTORY 

 Defendant is currently charged with possession of a controlled substance analogue 

(Clonazepam), MCL 333.7403(2)(b)(ii), resisting and obstructing, MCL 750.81d(1), and 

possession with intent to distribute an imitation controlled substance, MCL 333.7341(3). The 

charges arose out of an incident that began in a parking lot located at 101 Sheldon in Grand 

Rapids, Michigan. At approximately 10:00 a.m. on or about April 27, 2016, the Grand Rapids 

police officer involved was positioned behind a van in an adjacent parking lot across the street. 

The officer had worked in the neighborhood for the past four years and was watching the parking 

lot because it was known for drug sales and use. The parking lot primarily serves two 

establishments, the Cherry Street Dental Clinic and Dwelling Place. According to the officer, 

the owners of those establishments had concerns about the illegal activities that occurred in the 

parking lot and “the management from Dwelling Place has signed a letter of intent to prosecute 

trespassers” as a result of those concerns. The letter was kept on file with the Grand Rapids 

Police Department and was not generally known to the public. 

 The morning of the incident was sunny, and the parking lot had frequent traffic that day. 

In addition, the establishments that used the parking lot were open for business to the public. 

The police officer observed two men—one of whom was later identified to be defendant—walk 

to the parking lot from an adjacent sidewalk. The men did not walk toward the only door that led 

to Dwelling Place or the dental clinic. Instead, they walked toward the rear corner of the parking 

lot where there was no door. Neither man attempted to move toward any of the cars in the 

parking lot. The officer opined that the path the men traversed would have taken them “a little 
-2- 

more than a car length” from a no-trespassing sign located in the center of the parking lot. Based 

on his experience in that neighborhood and other drug transactions he had witnessed, the officer 

suspected “that there was an exchange” of narcotics between the two men. However, given his 

positioning across the street, the officer could only see that the two men were standing next to 

each other in the parking lot, and he could not see whether they engaged in any type of narcotics 

transaction. 

 Defendant and the other man left the parking lot and returned to the sidewalk. They then 

began walking south on the sidewalk toward Cherry Street. At that point, the officer notified 

dispatch that he was “going to be stopping two that were trespassing” and that he needed 

backup.1

 The officer approached the men from behind, identified himself as a police officer, and 

told them, “you have to stop.” Brown complied with the command, but defendant continued to 

walk. Thereafter, defendant was told, “[T]his is the police, you have to stop. You are under 

arrest for trespassing.” (Emphasis added). The officer testified that he decided “to go handson” with defendant, and he told defendant to place his hands on the top of his head so that he 

could handcuff defendant. Defendant raised his hands to be handcuffed. As the officer reached 

for his handcuffs, defendant turned and ran back to the parking lot, where he ran down a set of 

stairs at the back of the lot that enter onto 106 South Division. 

 The officer briefly pursued defendant, but eventually gave way to two other officers who 

were coming to the area because of his request for backup. The record is not entirely clear, and 

the details come primarily from the parties’ written submissions to the trial court, but it appears 

that the other officers eventually caught defendant and that some sort of struggle ensued. Also at 

some point—again, it is not entirely clear based on the evidence presented at the suppression 

hearing—defendant dropped or discarded a white container with 14 green pills inside of it. In 

addition, the other officers searched defendant and found bags containing an unknown substance 

or substances that tested negative for any controlled substances. 

 After the other officers arrested defendant, they took him back to the initial officer, who 

had detained Brown. At this point, the officers ran defendant’s name through the Law 

Enforcement Information Network (LEIN), and they discovered that he had an outstanding arrest 

warrant for “Absconding parole.” Until that time, the officers did not know who defendant was 

or that he had an outstanding warrant for his arrest. In a written opinion and order, the trial court 

found—and the prosecution has not contested this finding—that by the time the officers 

discovered the valid arrest warrant, they had already arrested and seized defendant. That is, the 

discovery of the warrant came after the search and seizure in this case. 

 Defendant filed a motion to suppress the evidence. At issue in the motion was whether 

the police officer’s seizure and attempted arrest2

 of defendant were lawful and whether the 

 

1

 Although he did not note as much in his police report, the officer who initiated contact with 

defendant testified at the suppression hearing that he also believed he could stop defendant and 

Brown for what he suspected was a drug transaction in the parking lot. He testified that he had a 

“reasonable suspicion” of a narcotics sale at that point. 

2

 The prosecution made no effort to argue that a seizure did not occur at this time, nor did the 

prosecution argue that any such seizure ended when defendant fled from the first officer. 

Further, the prosecution made no argument based on the United States Supreme Court’s decision 

in California v Hodari D, 499 US 621; 111 S Ct 1547; 113 L Ed 2d 690 (1991). Accordingly, 
-3- 

exclusionary rule should apply to the evidence seized in this case. The trial court granted the 

motion. 

II. WAS THERE AN UNREASONABLE SEARCH AND SEIZURE? 

A. STANDARD OF REVIEW 

 “This Court reviews a trial court’s factual findings at a suppression hearing for clear 

error, and the court’s ultimate ruling de novo.” People v Cohen, 294 Mich App 70, 74; 816 

NW2d 474 (2011). 

B. ANALYSIS 

 “US Const, Am IV, and Const 1963, art 1, § 11, guarantee the right of the people to be 

free from unreasonable searches and seizures.” People v Brown, 279 Mich App 116, 130; 755 

NW2d 664 (2008). At the heart of any issues concerning the constitutional guarantee is 

reasonableness. People v Williams, 472 Mich 308, 314; 696 NW2d 636 (2005). A search and 

seizure conducted without a warrant are unreasonable per se, subject to certain exceptions. 

Brown, 279 Mich App at 131. One well-recognized exception is that “[a] custodial arrest based 

on probable cause is not an unreasonable intrusion under the Fourth Amendment.” People v 

Nguyen, 305 Mich App 740, 751; 854 NW2d 223 (2014). Moreover, if an arrest is lawful, i.e., 

based on probable cause, any search incident to that arrest is lawful as well. Id. at 756 

 “This probable cause standard ‘is a practical, nontechnical conception’ judged from the 

totality of the circumstances before the arresting officers.” Cohen, 294 Mich App at 75, quoting 

Maryland v Pringle, 540 US 366, 370; 124 S Ct 795; 157 L Ed 2d 769 (2003). “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.” People v 

Champion, 452 Mich 92, 115; 549 NW2d 849 (1996).3

 In determining whether probable cause 

existed, a reviewing court is to make an objective inquiry based on the facts and circumstances 

of the case, and a police officer’s subjective characterization of the events is not controlling. 

Nguyen, 305 Mich App at 758. 

 The issue as the prosecution has presented it in this case is whether the police officer had 

probable cause to arrest defendant for violating a Grand Rapids city ordinance prohibiting 

trespassing when he first approached defendant.4

 The ordinance declares, in relevant part, that 

that no person shall “[t]respass upon the premises of another or unlawfully remain upon the 

premises of another to the annoyance or disturbance of the lawful occupants.” Grand Rapids 

we accept the prosecution’s apparent concession of these matters and only decide the issues 

before us. 

3

 In addition, MCL 764.15(1)(a) provides statutory authorization for a police officer to make an 

arrest without a warrant for a felony, misdemeanor, or ordinance violation committed in the 

officer’s presence. 

4

 The issue before the trial court concerned whether probable cause existed for the officer who 

initiated contact to believe that defendant either violated the city ordinance or MCL 750.552, the 

criminal trespassing statute. Because the prosecution does not make an argument about the 

statute on appeal, we do not consider it in detail. However, for many of the reasons articulated 

below—mainly that defendant was on property that was open to the public and he was never told 

to leave before to his arrest—there was no probable cause to arrest for that offense, either. 
-4- 

Ordinance, § 9.133(1). This Court interprets ordinances in the same manner it interprets statutes, 

People of Grand Rapids v Gasper, 314 Mich App 528, 536; 888 NW2d 116 (2016), meaning that 

it begins, and ends, with the plain language of the ordinance in order to ascertain the ordinance’s 

meaning, see People v Williams, 288 Mich App 67, 83; 792 NW2d 384 (2010). The ordinance at 

issue contains two prohibitions: (1) a prohibition on “trespassing”; and (2) a prohibition against 

“unlawfully remain[ing]” on land “to the annoyance or disturbance of the lawful occupants.” 

The prosecution does not raise an argument about the first prohibition, i.e., the undefined term of 

“trespass”; instead, the prosecution argues that the officer had probable cause to believe 

defendant violated the second part of the ordinance—remaining at 101 Sheldon to the annoyance 

or disturbance of the lawful occupants. 

 We agree with the trial court’s conclusion that there was no probable cause to arrest 

defendant for trespassing at 101 Sheldon under the city ordinance against trespassing. The 

evidence produced at the suppression hearing reveals that defendant was on property that was 

open to the public, during business hours, for a very brief period of time. During that brief time, 

no indication was given that defendant was told to leave or that he annoyed or disturbed anyone. 

The officer testified that he did not have any prior contact with, or knowledge of, defendant, nor 

did he have knowledge that anyone at 101 Sheldon ever gave any indication that defendant was 

not welcome there. The plain language of the ordinance states that a violation occurs when one: 

(1) remains on the property; and (2) does so to the annoyance or disturbance of the lawful 

occupants. On the evidence presented at the suppression hearing, there is no indication that a 

lawful occupant of the property was annoyed or disturbed by defendant’s presence. Indeed, there 

is no testimony that anyone—other than Brown—had any type of communication with defendant 

while he was on the property. And again, there is no evidence that defendant had previously 

been told not to enter the property. As such, the facts as they were known gave no indication 

that defendant annoyed or disturbed anyone, much less that he remained at 101 Sheldon after 

annoying or disturbing a lawful occupant. 

 The fact that the officer knew the parking lot at 101 Sheldon was often used for illegal 

drug transactions and other illicit purposes does not change the analysis.5

 Although a drug 

transaction would likely annoy or disturb the lawful occupants of 101 Sheldon, there was no 

evidence that any lawful occupant on the property—the subject officer was not on the property at 

the time—was annoyed or disturbed by anything that occurred in this case. Further, there was 

scant evidence for a reasonable officer to believe that defendant and Brown had engaged in such 

a transaction. The two men merely stood in a corner of the parking lot for a short period of time. 

In addition, even assuming that this could satisfy the requirement of “annoyance or disturbance,” 

there is no evidence, and the prosecution has not articulated an argument in this regard, that the 

men “remained” upon the premises in violation of the ordinance. According to the only evidence 

presented at the suppression hearing, the men were in the parking lot for a very brief time and 

they left immediately after standing together. In fact, they had already left the parking lot before 

the officer had a chance to approach them. 

 

5

 This Court appreciates that fact that the police are attempting to eradicate illegal activities in 

the community; however, the issue before us is whether there was probable cause to arrest 

defendant under the presenting circumstances. All members of the community remain entitled to 

freedom from unreasonable searches and seizures. 
-5- 

 In arguing that probable cause existed, the prosecution cites a “no-trespassing letter” 

signed by one of the occupants of 101 Sheldon as well as the no-trespassing sign in the parking 

lot. Essentially, the prosecution contends that the no-trespassing letter informed the Grand 

Rapids Police Department that the lawful property owners at 101 Sheldon were annoyed and 

disturbed by illegal activity occurring in the parking lot and that the no-trespassing sign on the 

property communicated as much to all who entered the property, including defendant. In other 

words, according to the prosecution, police had the unilateral authority to revoke defendant’s 

permission to be on the property and to arrest defendant without telling defendant that he was not 

welcome on the property. This argument is unconvincing. Initially, as the trial court recognized 

in this case, the no-trespassing letter does not create or establish an element of the trespassing 

ordinance; it merely grants authorization to police officers to ask occupants of the parking lot to 

leave the parking lot. In this regard, the letter contains an express authorization allowing “the 

GRPD to ask unauthorized persons to leave the property,” and if such persons refuse, the letter 

authorizes “the GRPD to enforce any violations of the law on the property.” But here, the officer 

never asked defendant to leave the property, nor did he have any kind of contact with defendant 

before the attempted arrest. 

 Moreover, any reliance by the prosecution upon the no-trespassing sign is equally 

without merit. The sign—which is printed in relatively small lettering—merely informed 

visitors to the parking lot that “no trespassing” would be tolerated and “violators will be 

prosecuted.” An admonition not to do that which is against the law—trespass—can hardly be 

read as giving notice to all who enter property that is open to the public that, if they “annoy” or 

“disturb” anyone, they are subject to immediate arrest without warning. In short, to adopt the 

prosecution’s contention would be to find that a letter of which the public is generally unaware 

and a small sign made all who entered property that was held open to the public subject to 

immediate arrest without warning. The plain language of the ordinance does not support this 

view. 6

 In arguing that this Court should not find a violation of the Fourth Amendment, the 

prosecution directs this Court’s attention to the United States Supreme Court’s opinion Heien v 

North Carolina, __ US __; 135 S Ct 530; 190 L Ed 2d 475 (2014). The prosecution argues that 

even assuming there was no violation of the trespassing ordinance, any mistake in concluding 

that there was an ordinance violation was a reasonable mistake of law. Given this reasonable 

mistake, according to the prosecution, there can be no Fourth Amendment violation. 

 

6

 In a conclusory footnote, the prosecution contends that a reasonable law enforcement officer in 

the Grand Rapids police officer’s position would have had probable cause to believe that 

defendant violated a different part of the ordinance, § 9.133(3), which prohibits, among other 

matters, a person “conceal[ing]” himself on the premises of another to commit a crime or any 

offense. This argument, which is given cursory enough treatment to be considered abandoned, 

see People v Payne, 285 Mich App 181, 195; 774 NW2d 714 (2009), is meritless. Although 

defendant stood in the rear corner of the parking lot, there is no evidence in the record to 

conclude that he concealed himself in any way. Indeed, the officer testified that he saw 

defendant, who was standing in a parking lot open to the public on a sunny morning, the entire 

time. In fact, the only thing that obstructed the officer’s view of defendant was the officer’s own 

positioning behind a van. 
-6- 

 In Heien, the Supreme Court addressed the issue of whether a law enforcement officer’s 

mistaken view of the law “can nonetheless give rise to the reasonable suspicion necessary to 

uphold [a] seizure under the Fourth Amendment.” Heien, __ US at __; 135 S Ct at 534; 190 L 

Ed 2d at 480. The Court held that a reasonable mistake of law could make an investigatory stop 

lawful. Id. In that case, Sergeant Matt Darisse stopped a vehicle for having one working brake 

light. Id. That stop led to a search of the car and to the discovery of a bag of cocaine. Id. at ___; 

135 S Ct at 534-535; 190 L Ed 2d at 480-481. One of the occupants, Nicholas Brady Heien, 

moved to suppress the cocaine, arguing that the stop and search violated the Fourth Amendment. 

Id. at ___; 135 S Ct at 535; 190 L Ed 2d at 481. The North Carolina Court of Appeals held that 

the initial stop of the vehicle was not valid because driving with only one working brake light 

was not a violation of state law, despite what Sergeant Darisse believed. Id. This was based on 

the conclusion that the relevant statute, NC Gen State Ann § 20-129(g) (2007), mandated that all 

vehicles must be equipped with “a stop lamp on the rear of the vehicle.” Heien, __ US at __; 135 

S Ct at 535; 190 L Ed 2d at 481. The North Carolina Supreme Court reversed, concluding that a 

different statutory provision, which required originally installed “rear lamps” to be functional, 

made Sergeant Darisse’s mistaken belief about the necessity of having two working lamps a 

reasonable mistake. Id. (citation omitted). And, because the Fourth Amendment requires 

reasonableness, there was no Fourth Amendment violation, according to the North Carolina 

Supreme Court. Id. 

 The United States Supreme Court held that a mistake of law can “give rise to the 

reasonable suspicion necessary to uphold [a] seizure under the Fourth Amendment.” Id. at ___; 

135 S Ct at 534; 190 L Ed 2d at 480. In so concluding, the Court began by acknowledging that 

“the ultimate touchstone of the Fourth Amendment is reasonableness.” Id. at ___; 135 S Ct at 

536; 190 L Ed 2d at 482 (citation and quotation marks omitted). “To be reasonable is not to be 

perfect,” explained the Court, “and so the Fourth Amendment allows for some mistakes on the 

part of government officials, giving them fair leeway for enforcing the law in the community’s 

protection.” Id. (citation and quotation marks omitted). Historically, the Court had held that the 

“reasonableness” standard permitted mistakes of fact, so long as the mistakes were “those of 

reasonable men.” Id. (citation and quotation marks omitted). 

 “But reasonable men make mistakes of law, too,” explained the Court, 

and such mistakes are no less compatible with the concept of reasonable 

suspicion. Reasonable suspicion arises from the combination of an officer’s 

understanding of the facts and his understanding of the relevant law. The officer 

may be reasonably mistaken on either ground. Whether the facts turn out to be 

not what was thought, or the law turns out to be not what was thought, the result 

is the same: the facts are outside the scope of the law. There is no reason, under 

the text of the Fourth Amendment or our precedents, why this same result should 

be acceptable when reached by way of a reasonable mistake of fact, but not when 

reached by way of a similarly reasonable mistake of law. [Id. at ___; 135 S Ct at 

536; 190 L Ed 2d at 482-483.] 

 Turning to the case before it, the Court in Heien, ___ US ___; 135 S Ct at 539; 190 L Ed 

2d at 485, explained that the alleged mistake of law “relates to the antecedent question of 

whether it was reasonable for an officer to suspect that the defendant’s conduct was illegal. If 

so, there was no violation of the Fourth Amendment in the first place.” And in that case, the 
-7- 

Court had “little difficulty concluding that the officer’s error of law was reasonable.” Id. at ___; 

135 S Ct at 540; 190 L Ed 2d at 486. While referring to pertinent provisions of North Carolina 

law, which to that point had not previously been construed by the state’s appellate courts, the 

Court explained why Sergeant Darisse’s mistaken view of the law was reasonable: 

Although the North Carolina statute at issue refers to “a stop lamp,” suggesting 

the need for only a single working brake light, it also provides that “[t]he stop 

lamp may be incorporated into a unit with one or more other rear lamps.” NC 

Gen Stat Ann. § 20–129(g) (emphasis added). The use of “other” suggests to the 

everyday reader of English that a “stop lamp” is a type of “rear lamp.” And 

another subsection of the same provision requires that vehicles “have all 

originally equipped rear lamps or the equivalent in good working order,” § 20–

129(d), arguably indicating that if a vehicle has multiple “stop lamp[s],” all must 

be functional. 

 The North Carolina Court of Appeals concluded that the “rear lamps” 

discussed in subsection (d) do not include brake lights, but, given the “other,” it 

would at least have been reasonable to think they did. Both the majority and the 

dissent in the North Carolina Supreme Court so concluded, and we agree. This 

“stop lamp” provision, moreover, had never been previously construed by North 

Carolina’s appellate courts. It was thus objectively reasonable for an officer in 

Sergeant Darisse’s position to think that Heien’s faulty right brake light was a 

violation of North Carolina law. And because the mistake of law was reasonable, 

there was reasonable suspicion justifying the stop. [Heien, __ US at __; 135 S Ct 

at 540; 190 L Ed 2d at 486-487 (some citations omitted).] 

 In the instant case—ignoring for purposes of this decision whether the rule from Heien is 

limited to ambiguous statutes—see Sinclair v Lauderdale Co, 652 Fed Appx 429, 435 (CA 6, 

2016); United States v Stanbridge, 813 F3d 1032, 1037 (CA 7, 2016) (“The statute isn’t 

ambiguous, and Heien does not support the proposition that a police officer acts in an objectively 

reasonable manner by misinterpreting an unambiguous statute.”); but see Cahaly v Larosa, 796 

F3d 399, 408 (CA 4, 2015)—we decline to find that Heien changes the outcome, because any 

mistake of law in this case was unreasonable. As an initial matter, the ordinance at issue in this 

case was not ambiguous7

 in regard to the conduct it prohibited. The ordinance prohibited 

remaining on property to the annoyance or disturbance of the lawful owner. As noted, at some 

level, this required knowledge on the part of defendant that he was annoying or disturbing 

someone on the property; otherwise it could not fairly be said that he “remained” on the property 

to the annoyance or disturbance of the lawful occupants. And here, defendant was only on the 

property for a brief period of time and did relatively little while he was on the property. Given 

the elements of the ordinance, the conclusion that defendant violated the ordinance was not 

objectively reasonable. 

 

7

 Regardless whether the finding of statutory ambiguity is necessary for an application of Heien, 

the clarity—or lack thereof—of the ordinance is relevant in considering whether a mistaken 

interpretation of the ordinance was reasonable. 
-8- 

 Comparing the instant case to the situation in Heien is useful. In essence, the officer in 

Heien stopped the defendant for only having one working brake light when a fair reading of a 

statute gave the officer the express authority to do so. In addition, no state appellate court had 

interpreted the statute at issue. Here, by contrast, the ordinance was clear, and it plainly did not 

permit an arrest in a situation such as the one that occurred in this case. On this record, we 

decline to find a reasonable mistake of law. 

 Next, in addition to arguing that the police officer had probable cause to arrest, the 

prosecution argues that, based on his observations and experiences regarding drug transactions, 

the officer had a reasonable suspicion that defendant and Brown had engaged in a drug 

transaction, thereby justifying a stop or seizure of the men. 

 If a police officer has a reasonable, articulable suspicion that criminal activity is afoot, 

the officer may briefly detain a suspect for the purpose of performing an investigatory stop. See 

People v Barbarich, 291 Mich App 468, 473; 807 NW2d 56 (2011), citing Terry v Ohio, 392 US 

1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). A detention for the purpose of investigating criminal 

behavior does not violate the Fourth Amendment. Barbarich, 291 Mich App at 473. However, 

“[t]he scope of any search or seizure must be limited to that which is necessary to quickly 

confirm or dispel the officer’s suspicion.” Id. Police officers are permitted to take action in 

order to ensure their safety during Terry stops, see People v Nimeth, 236 Mich App 616, 624; 

601 NW2d 393 (1999), and in some instances this can include the use of handcuffs, see Brown v 

Lewis, 779 F3d 401, 415 (CA 6, 2015). 

 We agree with the trial court that the prosecution’s argument with regard to reasonable 

suspicion and a Terry stop are without merit in this case. The trial court found that the officer 

attempted to effectuate an arrest of defendant and that he did not attempt to merely conduct an 

investigatory stop. This was a factual finding—which is reviewed for clear error, see Cohen, 294 

Mich App at 74—based on the officer’s testimony that he intended to arrest defendant and 

Brown and that he told defendant “you have to stop. You are under arrest.” (Emphasis added). 

As is apparent from the suppression hearing and the body camera video, the officer went to 

handcuff defendant immediately. On this record, the trial court’s factual finding was not clearly 

erroneous. Moreover, because there is no basis to conclude that the officer conducted an 

investigatory stop or attempted to make an investigatory stop, whether he had reasonable 

suspicion that would have justified an investigatory stop and a brief detention are irrelevant in 

this case.8

 

8

 Had this incident entailed a Terry stop, at issue would be whether a police officer has 

reasonable suspicion to stop two men for having briefly spoken to one another in a parking lot 

and then leaving. If two people talking in an area known for drug transactions can serve as the 

basis for a Terry stop, then anyone having a conversation in certain neighborhoods can be frisked 

at any time. This suggests that there is an exception to the fourth amendment for all people 

living in or passing through certain neighborhoods. In the absence of seeing a hand-off or other 

conduct supporting a concern that an illegal transaction was taking place, we would not deem the 

facts here sufficient to justify a Terry stop. 
-9- 

III. SHOULD THE EXCLUSIONARY RULE APPLY? 

 Having agreed with the trial court’s decision that an unlawful seizure9

 occurred in this 

case, we next consider whether the exclusionary rule should bar the use of the unlawfully seized 

evidence at defendant’s trial. The prosecution contends that the discovery of the valid warrant 

for defendant’s arrest attenuated the connection between the unlawful stop and the evidence 

seized from defendant. 

 “[E]vidence discovered in a search incident to an unlawful arrest may be subject to the 

exclusionary rule as the ‘fruit of the poisonous tree.’ ” People v Reese, 281 Mich App 290, 295; 

761 NW2d 405 (2008) (citation omitted). The exclusionary rule is a judicially created doctrine 

intended to compel compliance with the right of persons to be free from unreasonable searches 

and seizures. People v Hill, 299 Mich App 402, 412; 829 NW2d 908 (2013), citing Davis v 

United States, 564 US 229, 236; 131 S Ct 2419; 180 L Ed 2d 285 (2011). The rule “is a harsh 

remedy designed to sanction and deter police misconduct where it has resulted in a violation of 

constitutional rights and should be used only as a last resort.” People v Corr, 287 Mich App 

499, 508; 788 NW2d 860 (2010) (quotation marks and citation omitted). The purpose of the 

exclusionary rule is to deter police misconduct and to prevent future Fourth Amendment 

violations. Hill, 299 Mich App at 412, citing Davis, 563 US at 236-237. “Where suppression 

fails to yield appreciable deterrence, exclusion is clearly unwarranted.” Davis, 564 US at 237 

(citation and quotation marks omitted). 

 Application of the exclusionary rule is not predicated on a simple but-for test of whether 

the evidence “ ‘would not have come to light but for the illegal actions of the police.’ ” Reese, 

281 Mich App at 295, quoting Wong Sun v United States, 371 US 471, 488; 83 S Ct 407; 9 L Ed 

2d 441 (1963). “Rather, the more apt question in such a case is whether, granting establishment 

of the primary illegality, the evidence to which instant objection is made has been come at by 

exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the 

primary taint.” Wong Sun, 371 US at 488 (quotation marks and citation omitted). 

 One such means by which the “primary taint” of illegal conduct may be purged is the 

attenuation doctrine. Utah v Strieff, __ US __, __; 136 S Ct 2056, 2059; 195 L Ed 2d 400, 405 

(2016). In Strieff, the Court explained that “[i]n some cases . . . the link between the 

unconstitutional conduct and the discovery of the evidence is too attenuated to justify 

suppression.” Id., at ___; 136 S Ct at 2059; 195 L Ed 2d at 405. In that case, a police officer, 

Douglas Fackrell, observed defendant, Edward Strieff, exit a home where drug activity was 

suspected and walk toward a nearby convenience store, where Officer Fackrell then detained 

him. Id. at ___; 136 S Ct at 2060; 195 L Ed 2d at 406. Officer Fackrell relayed Strieff’s 

information to a dispatcher, who informed Officer Fackrell that Strieff had an outstanding arrest 

warrant. Id. at ___; 136 S Ct at 2060; 195 L Ed 2d at 406. Officer Fackrell arrested Strieff and 

discovered narcotics and drug paraphernalia during a search incident to arrest. Id. The Supreme 

 

9

 Again, based on the arguments presented, we only concern ourselves with the seizure as 

articulated by the prosecution: that is, the seizure that occurred when the officer who initiated 

contact attempted to arrest defendant. Also, given that the prosecution makes no effort to argue 

that the evidence in this case was discovered apart from that initial seizure, we accept for 

purposes of our decision that the evidence, which was later discarded during defendant’s flight, 

was discovered as a result of the officer’s initial seizure. 
-10- 

Court accepted the contention that Officer Fackrell’s initial detention of Strieff was unlawful.10 

The issue in that case became “whether the discovery of a valid arrest warrant was a sufficient 

intervening event to break the causal chain between the unlawful stop and the discovery of drugrelated evidence on Strieff’s person.” Id. at ___; 136 S Ct at 2061; 195 L Ed 2d at 408. In 

evaluating this issue, the Court evaluated three factors: 

First, we look to the “temporal proximity” between the unconstitutional conduct 

and the discovery of evidence to determine how closely the discovery of evidence 

followed the unconstitutional search. Second, we consider “the presence of 

intervening circumstances.” Third, and “particularly” significant, we examine 

“the purpose and flagrancy of the official misconduct.” [Id. at ___; 136 S Ct at 

2062; 195 L Ed 2d at 408 (citations omitted).] 

 The Court found that the first factor—temporal proximity between the unlawful stop and 

the search—favored suppression. Id. The Court remarked, “ ‘[o]ur precedents have declined to 

find that this factor favors attenuation unless ‘substantial time’ elapses between an unlawful act 

and when the evidence is obtained.’ ” Id., quoting Kaupp v Texas, 538 US 626, 633; 123 S Ct 

1843; 155 L Ed 2d 814 (2003). And in Strieff, __ US at __; 136 S Ct at 2062; 195 L Ed 2d at 

408, Officer Fackrell discovered the evidence “only minutes after the illegal stop.” 

 The Court found that the second factor—the presence of intervening circumstances—

“strongly favors the State.” Id. The existence of a valid arrest warrant in that case, reasoned the 

Court, favored finding that “the connection between unlawful conduct and the discovery of 

evidence [was] sufficiently attenuated to dissipate the taint.” Id. at ___; 136 S Ct at 2062; 195 L 

Ed 2d at 409 (quotation marks and citation omitted). The warrant was valid, it predated the 

investigation that led to Strieff’s arrest, “and it was entirely unconnected with the stop.” Id. 

Moreover, the arrest warrant compelled Officer Fackrell to arrest Strieff, “[a]nd once Officer 

Fackrell was authorized to arrest Strieff, it was undisputedly lawful to search Strieff as an 

incident of his arrest to protect Officer Fackrell’s safety.” Id. at ___; 136 S Ct at 2063; 195 L Ed 

2d at 409. 

 As to the purpose and flagrancy of police misconduct, the Court found that this factor 

also “strongly favors the State.” Id. The Court explained that the factor reflects the rationale 

that exclusion exists to deter police misconduct “by favoring exclusion only when the police 

misconduct is most in need of deterrence—that is, when it is purposeful or flagrant.” Id. And in 

that case, reasoned the Court, Officer Fackrell was at most negligent in concluding that he had 

sufficient cause to initiate a stop/detention of Strieff. Id. In addition, the Court explained that 

Officer Fackrell should have asked if Strieff would be willing to speak with him, rather than 

demanding that Strieff speak with him, thereby effectuating a seizure. Id. The Court explained 

that although Officer Fackrell made a few errors in judgment, “these errors in judgment hardly 

rise to a purposeful or flagrant violation of Strieff’s Fourth Amendment rights.” Id. Moreover, 

the Court concluded that “there is no indication that this unlawful stop was part of any systemic 

 

10 “At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable 

suspicion for the stop.” Id., at ___; 136 S Ct at 2060; 195 L Ed2d at 406. See also Id. at ___; 

136 S Ct at 2061-2062; 195 L Ed 2d at 407. 
-11- 

or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an 

isolated instance of negligence that occurred in connection with a bona fide investigation of a 

suspected drug house.” Id. 

 Applying all of the factors, the Court held that application of the exclusionary rule was 

not warranted in that case. Id. 

 A decision from this Court, Reese, 281 Mich App at 290, is instructive as well on the 

issue of the attenuation doctrine. In that case, police officers approached Richard Reese outside 

of an apartment complex that was known for narcotics trafficking. After a verbal exchange with 

Reese, the officers informed him that the area was known for drug trafficking and that if he did 

not leave—or visit a friend whom he claimed he was visiting in the complex—he might be guilty 

of loitering. Id. at 292. The officers arrested Reese for loitering and, upon running Reese’s 

information in the LEIN network, the officers learned of the existence of an outstanding 

misdemeanor warrant. Id. at 293. One of the officers informed Reese that he was being placed 

under arrest pursuant to the warrant—as well as for loitering—and the officers called a tow truck 

to have an inventory search performed on Reese’s car. Id. The search revealed cocaine that later 

became the subject of a motion to suppress. Id. According to Reese, the officers lacked 

probable cause to arrest for loitering, and any evidence discovered thereafter had to be 

suppressed as the fruit of an illegal search. Id. at 293-294. The circuit court agreed and 

suppressed the cocaine. Id. at 294. 

 On appeal to this Court, the prosecution argued that, even assuming the loitering arrest 

was unlawful, the misdemeanor arrest was lawful, and the officers could lawfully conduct a 

search of Reese’s car incident to that arrest. Id. The issue before this Court was “whether the 

discovery of this preexisting warrant constitutes an independent basis, which dissipates the taint 

from the initial illegal arrest, for conducting the search of Reese’s car[?]” Id. at 297. Similar to 

the manner in which the United States Supreme Court evaluated the issue in Strieff some eight 

years later, this Court utilized the same three-factor test and weighed: (1) the time between the 

illegal conduct and the discovery of the evidence; (2) the presence of intervening circumstances; 

and (3) the purpose and flagrancy of police misconduct. Id. at 299, 303-304. In addition, the 

Court focused primarily on the following two points: 

(1) what evidence did the police obtain from the initial illegal stop before they 

discovered the outstanding arrest warrant, and (2) whether that initial illegal stop 

was a manifestation of flagrant police misconduct—i.e., conduct that was 

obviously illegal, or that was particularly egregious, or that was done for the 

purpose of abridging the defendant’s rights. [Id. at 304 (quotation marks and 

citation omitted).] 

 In that case, this Court concluded that there was no evidence of police misconduct or an 

improper purpose by the officers. Id. at 304 (“Indeed, the officers not only made it clear to 

Reese that he was free to go, they actually asked him to leave at least twice.”). Hence, there was 

no misconduct at issue. Moreover, this Court found significant the fact that the officers only 

discovered the drugs after they discovered the valid arrest warrant. Id. at 304-305. In sum, this 

Court held: 

Because the officers’ initial misconduct—the arrest for loitering—was not 

particularly egregious or motivated by bad faith and only yielded Reese’s identity, 
-12- 

the subsequent discovery of the preexisting arrest warrant was not tainted by the 

illegality of that initial arrest. As such, the discovery of the preexisting warrant 

constituted an intervening circumstance that broke the causal connection between 

the illegal arrest and the discovery of the cocaine evidence. Because the search 

was independently justified as a search incident to the lawful arrest on the 

warrant, Reese was not entitled to have the cocaine evidence suppressed. [Id. at 

305.] 

 In reaching this conclusion, this Court, in a footnote that should be considered dicta, 

offered its opinion on a hypothetical scenario that is relevant to this case. This Court considered 

the outcome of a scenario in which the police would have conducted the search following the 

illegal arrest and then later discovered the valid warrant only after discovering the narcotics. Id. 

at 305 n 4. In such a scenario, opined the Court, the “taint” of the illegal arrest would not have 

been purged by the after-the-fact discovery of a valid warrant:

Had the officers searched Reese’s car under authority of the illegal arrest and only 

later discovered the preexisting warrant, the discovery of the preexisting arrest 

warrant could not have served to dissipate or attenuate the illegality of the arrest 

and, accordingly, the cocaine evidence would clearly have been the “fruit” of the 

illegal arrest. [Id.] 

 Turning to the instant case, it should be noted from the outset that this case involves facts 

that differ significantly from those present in Strieff and Reese in regard to when the warrant and 

the evidence were discovered. While Strieff and Reese involved fact patterns of: (1) invalid 

seizure; (2) discovery of a valid arrest warrant; and (3) search and discovery of contraband; the 

instant case, as it has been argued by the prosecutor, involves a different fact pattern: (1) invalid 

seizure; (2) search and discovery of contraband; and (3) discovery of a valid arrest warrant. 

 Given the differences between this case and Strieff and Reese, we hold that the 

attenuation doctrine does not operate to bar the exclusion of the evidence. Looking to the factors 

enunciated in Strieff and Reese, we note the first factor in this case favors suppression because by 

all accounts the time between the illegal detention and the discovery of the evidence was 

relatively short. See Strieff, __ US at __; 136 S Ct at 2062; 195 L Ed 2d at 408. The second 

factor is where this case begins to take a significantly different path from Strieff and Reese. 

From the evidence presented in this case, the discovery of the valid warrant for defendant’s arrest 

was not an intervening act that “broke” the causal chain between the initial, unlawful detention 

and the discovery of the evidence. Indeed, according to the officer’s testimony at the 

suppression hearing, the warrant had no effect on the actions taken by police in this case, nor did 

it have any effect on the evidence that was recovered from defendant. In short, the instant case 

does not involve the discovery of a warrant as an intervening act that “purged” the taint from the 

illegal seizure; rather, it involves an after-the-fact discovery of a valid warrant and an attempt to 

apply that warrant as a post-hoc panacea for unlawful actions that were wholly unrelated to that 

warrant. Stated differently, the evidence “came to light through exploitation of the illegal 

conduct” rather than “by means sufficiently distinguishable to be purged of the taint from the 

illegal conduct.” Reese, 281 Mich App at 299, citing United States v Ceccolini, 435 US 268, 

276; 98 S Ct 1054; 55 L Ed 2d 268 (1978). Because of the factual differences between this case 

and Strieff and Reese, this second factor strongly favors suppression. 
-13- 

 The final factor considers the purpose and flagrancy of police misconduct, with heed 

being paid to the idea that the exclusionary rule is intended to deter police misconduct. Strieff, 

__ US at __; 136 S Ct at 2063; 195 L Ed 2d at 409. In Strieff, the United States Supreme Court 

emphasized that deterrence was not warranted in that case because the officer’s actions were “at 

most negligent” and there was “no indication that this unlawful stop was part of any systemic or 

recurrent police misconduct.” Id. at ___; 136 S Ct at 2063; 195 L Ed 2d at 409-410. In the 

instant case, however, the case for suppression—and deterrence—is stronger. Although there is 

no suggestion from the record that the police officer acted with ill intent, and every indication 

that the Grand Rapids police are attempting to remedy a real problem, the case nevertheless 

involves an arrest—or attempted arrest—for simply walking into and out of a busy parking lot 

that was open to the public. As noted above, the idea that this conduct satisfied the elements of 

trespassing as it is defined under the pertinent ordinance was not reasonable. Moreover, the 

officer’s justification for the arrest—the no-trespassing letter—brings up another important 

consideration. According to the officer’s testimony at the suppression hearing, the Grand Rapids 

Police Department has a practice of handing out such letters and arresting suspects in reliance, at 

least in part, on the letters.11 This pattern of behavior suggests that the seizure in this case could 

have been part of the “systemic or recurrent police misconduct” about which the Court in Strieff

was concerned. Thus, the instant case presents a case for deterrence. 

 In sum, in evaluating the three factors present in this case, we conclude the attenuation 

doctrine should not apply and we affirm the trial court’s decision to suppress the evidence seized 

in this case. 

 

11 In its opinion and order, the trial court took note of and found to be persuasive an unpublished 

decision from this Court, People v Clay, unpublished opinion per curiam of the Court of 

Appeals, issued April 11, 1997 (Docket No. 183101). In Clay, the same police department at 

issue in this case arrested the defendant for trespassing when he walked through the parking lot 

of an Amoco gas station, as the officers perceived that he was “cutting across” the lot. Clay, 

unpub op at 1. The arresting officer was aware of a letter that the owner of the gas station had on 

file with the police department giving the police permission to arrest trespassers on the lot. Id. at 

2. This Court held that there was not probable cause to arrest defendant for trespassing under the 

trespassing statute, MCL 750.552, because the statute “applies when an individual has been 

forbidden to enter or was notified to depart and neglects or refuses to do so.” Id. at 3. The Court 

noted that the defendant “was not told to depart from the premises, and inasmuch as the lot was 

open to the public, the ‘No Trespassing’ signs were inadequate to inform defendant that he was 

forbidden to enter the parking lot.” Id. This Court suppressed the evidence obtained as a result 

of the improper arrest. Id at 3. 

 The American Civil Liberties Union of Michigan and Linc Up submitted an amicus brief 

in this case and attached two Kent County cases—one from the circuit court 2010 and one from 

the district court in 2012—that entailed similar police conduct in reliance on merchant letters, 

resulting in successful motions for suppression. These cases, while not binding, serve to further 

support our conclusion that suppression is warranted for deterrence purposes. 
-14- 

IV. CONCLUSION 

 There was no probable cause to arrest defendant for trespassing under the city ordinance 

and any mistake in concluding that there was probable cause was unreasonable. Therefore, the 

only seizure we have been asked to evaluate in this case was unreasonable. Moreover, given the 

factors announced in Reese and Strieff, we find application of the exclusionary rule is appropriate 

in this case. 

 Affirmed. 

/s/ Jane M. Beckering 

/s/ Jane E. Markey 

/s/ Douglas B. Shapiro