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### 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: B ECKERING , P.J., and M ARKEY and S HAPIRO , JJ.

P ER C URIAM

.

In this interlocutory appeal, the prosecution appeals by leave granted the trial court’s order granting defendant Demetrius Terrell Maggit’s motion to s uppress his statements and physical evidence obtained follo wing his seizure and subsequentsearch 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 su bstance, MCL 333.7341(3). The charges arose out of an incident that began in a parking lot lo cated at 101 Sheldon in Grand Rapids, Michigan. At approximately 10:00 a.m. on or about Apri l 27, 2016, the Grand Rapids police officer involved was positioned behind a van in an adjac ent parking lot across the street.

The officer had worked in the ne ighborhood for the past four ye ars and was watching the parking lot because it was known for drug sales and use. The parking l ot primarily serves two establishments, the Cherry Street Dental Clinic and Dwelling Pl ace. According to the officer, the owners of those establishments had concerns about the illeg al 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 kep t 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 t hat used the parking lot were open for business to the public. The police officer observed two men—one of whom was later ident ified to be defendant—walk to the parking lot from an adj acent sidewalk. The men did not walk toward the only door that led to Dwelling Place or the dental clinic. Instead, they walked t oward the rear corner of the parking lot where there was no door. Neither man attempted to move tow ard any of the cars in the parking lot. The officer opined that the path the men traverse d would have taken them “a little-2- more than a car length” from a no-trespassing sign located in t he center of the p arking lot. Based on his experience in that neighbo rhood and other drug transacti ons 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 the y 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 t hat point, the officer notified dispatch that he was “going to be stopping two that were trespa ssing” and that he needed backup. 1 The officer approached the men from behind, identified himsel f 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, y ou have to stop. You are under arrest for trespassing .” (Emphasis added). The officer testified that he decided “t o go handson” with defendant, and he told defendant to place his hands on the top of his head so that he

could handcuff defendant. Defe ndant raised his hands to be han dcuffed. 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 Divisio n. 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 submission s to the trial court, but it appears that the other officers eventually caught defendant and that so me sort of struggle ensued. Also at some point—again, it is not entirely clear based on the evidenc e presented at the suppression hearing—defendant dropped or dis carded a white container with 1 4 green pills inside of it. In addition, the other officers searched defendant and found bags containing an unknown substance or substances that tested nega tive for any controlled substance s. After the other officers arrested defendant, they took him bac k 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 tha t 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 wri tten opinion and order, the trial court found—and the prosecution has not contested this finding—that b y the time the officers

discovered the valid arrest warra nt, they had already arrested and seized defendant. That is, the discovery of the warrant came after the search and seizu re in this case. Defendant filed a motion to suppr ess the evidence. At issue i n the motion was whether the police officer’s seizure and attempted arrest 2 of defendant were lawful and whether the

1 Although he did not note as much in his police report, the off icer who initiated contact with defendant testified at the suppression hearing that he also bel ieved he could stop defendant and Brown for what he suspected was a drug transaction in the parki ng lot. He testified that he had a “reasonable suspicion” of a na rcotics 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 fl ed from the first officer. Further, the prosecution made no argument based on the United S tates Supreme Court’s decision

in California v Hodari D , 499 US 621; 111 S Ct 1547; 113 L Ed 2d 690 (1991). According ly,-3- exclusionary rule shou ld apply to the evidence seized in this c ase. The trial court granted the

motion.

II. WAS THERE AN UNREASONAB LE SEARCH AND SEIZURE?

A. STANDARD OF REVIEW

“This Court reviews a trial cour t’s factual findings at a supp ression 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 r ight 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 con stitutional 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, su bject 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 Fo urth 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 searc h incident to that arrest is lawful as well. Id . at 756 “This probable cause standard ‘is a practical, nontechnical co nception’ 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). “Prob able cause

to arrest exists where the facts and circumstances within an of ficer’s knowledge and of which he has reasonably trustworthy inform ation are sufficient in themse lves 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 base d 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 o r unlawfully remain upon the premises of another to the annoyance or disturbance of the lawf ul occupants.” Grand Rapids

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

before us.

3 In addition, MCL 764.15(1)(a) pr ovides statutory authorizationfor a police officer to make an

arrest without a warrant for a f elony, misdemeanor, or ordinanc e violation committed in the officer’s presence.

4 The issue before the trial court concerned whether probable ca use existed for the officer who

initiated contact to believe tha t defendant either violated the city ordinance or MCL 750.552, the criminal trespassing statute. Because the prosecution does notmake an argument about the statute on appeal, we do not consider it in detail. However, f or many of the reasons articulated below—mainly that defendant was on property that was open to th e public and he was never told

to leave before to his arrest—t here was no probable cause to arrest for that offense, either.-4- Ordinance, § 9.133(1). This Cour t interprets ord inances 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 i n 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 “trespass ing”; and (2) a prohibition against “unlawfully remain[ing]” on land “to the annoyance or disturban ce of the lawful occupants.” The prosecution does not raise an argument about the first proh ibition, i.e., the undefined term of “trespass”; instead, the prosecu tion argues that the officer ha d probable cause to believe defendant violated the second part of the ordinance—remaining a t 101 Sheldon to the annoyance

or disturbance of the lawful occupants. We agree with the trial court’s conclusion that there was no p robable cause to arrest defendant for trespassing at 101 Sheldon under the city ordinan ce against trespassing. The evidence produced at the suppression hearing reveals that defen dant was on property that was open to the public, during business hours, for a very brief per iod of time. During that brief time, no indication was given that defendant was told to leave or tha t he annoyed or disturbed anyone. The officer testified that he did not have any prior contact wi th, 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 o r disturbance of the lawful occupants. On the evidence pres ented at the suppression hearin g, there is no indication that a lawful occupant of the prope rty was annoyed or disturbed by def endant’s presence. Indeed, there is no testimony that anyone—other than Brown—had any type of co mmunication 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 the y 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 illi cit purposes does not change th e analysis. 5 Although a drug transaction would likely annoy or disturb the lawful occupants of 101 Sheldon, there was no evidence that any lawful occupanton the property—the subject o fficer 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 defenda nt 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 requirem ent 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 i n violation of the ordinance. According to the only evidence presented at the suppression hearing, the men were in the parki ng lot for a very brief time and they left immediately after standing together. In fact, they h ad already left the parking lot before

the officer had a chan ce to approach them.

5 This Court appreciates that f act that the police are attemptin g to eradicate illegal activities in the community; however, the issue before us is whether there wa s probable cause to arrest defendant under the presenting circumstances. All members of t he 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 prosecuti on contends that the no-trespas sing letter informed the Grand Rapids Police Department that th e lawful property owners at 101 Sheldon were annoyed and disturbed by illegal activity occ urring 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 prosecu tion, 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 ar gument is unconvincing. Initi ally, as the trial court recognized in this case, the no-trespassing letter does not create or esta blish an element of the trespassing ordinance; it merely grants aut horization 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 person s to leave the property,” and if such persons refuse, the letter

authorizes “the GRPD to enfor ce any violations of the law on th e property.” But here, the officer never asked defendant to leave the property, nor did he have an y kind of contact with defendant before the attempted arrest. Moreover, any reliance by the prosecution upon the no-trespass ing sign is equally without merit. The sign—which is printed in relatively small l ettering—merely informed visitors to the parking lot that “no trespassing” would be tole rated 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 whic h the public is generally unaware and a small sign made all who entered property that was held op en to the public subject to immediate arrest without warning. The plain language of the or dinance does not support this

view. 6
In arguing that this Court shou ld 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 prosecut ion argues that even assuming there was no violation of the trespassing ordinan ce, any mistake in concluding

that there was an ordinance viol ation was a reasonable mistake of law. Given this reasonable mistake, according to the pros ecution, there can be no Fourth A mendment violation.

6 In a conclusory footnote, the prosecution contends that a reas onable 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 ano ther to commit a crime or any offense. This argument, which is given cursory enough treatmen t to be considered abandoned,

see People v Payne , 285 Mich App 181, 195; 774 NW2d 714 (2009), is meritless. Al though 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 off icer 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 vi ew of defendant was the officer’s own positioning behind a van.-6- In Heien , the Supreme Court addressed th e issue of whether a law enforc ement officer’s mistaken view of the law “can nonetheless give rise to the reas onable 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 ha ving 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 occupa nts, Nicholas Brady Heien, moved to suppress the cocaine, arguing that the stop and searchviolated the Fourth Amendment.

Id . at ___; 135 S Ct at 535; 190 L Ed 2d at 481. The North Carol ina Court of Appeals held that the initial stop of the vehicle was not valid because driving w ith 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 Co urt reversed, concluding that a different statutory provision, wh ich required originally instal led “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 requir es reasonableness, there was no Fourth Amendment violation, accord ing 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 t o uphold [a] seizure under the Fourth Amendment.” Id . at ___; 135 S Ct at 534; 190 L Ed 2d at 480. In so concluding, the Cou rt began by acknowledging that

“the ultimate touchstone of the Fourth Amendment is reasonablen ess.” 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 all ows for some mistakes on the part of government officials, giv ing them fair leeway for enfor cing the law in the community’s protection.” Id . (citation and quotation marks omitted). Historically, the Co urt had held that the “reasonableness” standard permitted mistakes of fact, so long a s 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 re asonable suspicion. Reasonable suspicion arises from the combination of an officer’s understanding of the facts and hi s understanding of the relevan t law. The officer may be reasonably mistaken on e ither 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 sa me result should be acceptable when reached by way of a reasonable mistake of fa ct, 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 mistak e of law “relates to the antec edent question of whether it was reasonable for an officer to suspect that the de fendant’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 erro r of law was reasonable.” Id . at ___; 135 S Ct at 540; 190 L Ed 2d at 486. While referring to pertin ent provisions of North Carolina law, which to that point had not previously been construed by t he state’s appellate courts, the Court explained why Sergeant Dari sse’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 worki ng brake light, it also provide s 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) (emphasi s 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 workin g order,” § 20– 129(d), arguably indicating that if a vehicle has multiple “sto p lamp[s],” all must

be functional. The North Carolina Court of Appeals concluded that the “rear l amps” discussed in subsection (d) do not include brake lights, but, g iven the “other,” it

would at least have been reasonable to think they did. Both th e majority and the dissent in the North Carolina Supreme Court so concluded, and w e agree. This “stop lamp” provision, moreover, had never been previously cons trued by North Carolina’s appellate courts. It was thus objectively reasonabl e for an officer in Sergeant Darisse’s position to thi nk that Heien’s faulty right brake light was a

violation of North Carolina law. And because the mistake of la w 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 fo r purposes of this decision whe ther 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 ambiguous 7 in regard to the conduct it pro hibited. The ordinance prohibi ted remaining on property to the annoyance or disturbance of the la wful 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 h ere, defendant was only on the property for a brief period of time and did relatively little w hile he was on the property. Given the elements of the ordinance, the conclusion that defendant vi olated the ordinance was not objectively reasonable.

7 Regardless whether the finding of statutory ambiguity is neces sary for an application of Heien

, the clarity—or lack thereof—of the ordinance is relevant in con sidering whether a mistaken interpretation of the ordi nance 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 w hen a fair reading of a statute gave the officer the express authority to do so. In ad dition, no state appellate court had interpreted the statute at issue. Here, by contrast, the ordin ance was clear, and it plainly did not permit an arrest in a situation such as the one that occurred i n 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 experien ces regarding drug transactions, the officer had a reasonable suspicion that defendant and Brown had engaged in a drug transaction, thereby justifying astop or seizure of the men. If a police officer has a reasonable, articulable suspicion th at criminal activity is afoot, the officer may briefly detain a suspect for the purpose of per forming 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 pu rpose 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 w hich 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 tha t 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 review ed for clear error, see Cohen , 294 Mich App at 74—based on the officer’s testimony that he intende d 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 cour t’s factual finding was not clearly erroneous. Moreover, because there is no basis to conclude tha t the officer conducted an investigatory stop or attempted to make an investigatory stop, whether he had reasonable suspicion that would have justifi ed an investigatory stop and abrief 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 d rug transactions can serve as the

basis for a Terry stop, then anyone having a conv ersation in certain neighborhoo ds can be frisked at any time. This suggests that there is an exception to the f ourth amendment for all people living in or passing through certa in neighborhoods. In the abs ence of seeing a hand-off or other conduct supporting a concern that an illegal transaction was ta king 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 seizure 9 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 t he discovery of the valid warrant

for defendant’s arrest attenuate d the connection between the un lawful stop and the evidence

seized from defendant. “[E]vidence discovered in a search incident to an unlawful arr est may be subject to the exclusionary rule as the ‘fru it 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 f ree 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 i t 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 omi tted). 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 unw arranted.” Davis , 564 US at 237 (citation and quotation marks omitted). Application of the exclusionary rule is not predicated on a si mple but-for test of whether the evidence “ ‘would not have come to light but for the illega l 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 i s whether, granting establishment of the primary illegality, the evidence to which instant object ion is made has been come at by exploitation of that illegality or instead by means sufficientl y 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 betw een the

unconstitutional conduct and the d iscovery of the evidence is t oo 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 ho me where drug activity was suspected and walk toward a nearby convenience store, where Off icer Fackrell then detained

him. Id . at ___; 136 S Ct at 2060; 195 L Ed 2d at 406. Officer Fackre ll 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 Fackre ll arrested Strieff and discovered narcotics and drug paraphernalia during a search inc ident to arrest. Id . The Supreme

9 Again, based on the arguments presented, we only concern ourse lves with the seizure as articulated by the prosecution: that is, the seizure that occur red when the officer who initiated contact attempted to arrest defendant. Also, given that the pr osecution makes no effort to argue that the evidence in this case was discovered apart from that i nitial seizure, we accept for purposes of our decision that the evidence, which was later dis carded during defendant’s flight,

was discovered as a result of t he officer’s initial seizure.-10- Court accepted the contention that Officer Fackrell’s initial d etention 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 unlawfu l 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 Cour t evaluated three factors:

First, we look to the “temporal proximity” between the unconsti tutional conduct and the discovery of evidence to determine how closely the disc overy of evidence

followed the unconstitutional sear ch. Second, we consider “the presence of intervening circumstances.” Third, and “particularly” signific ant, 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 f actor—temporal proximity betwe en the unlawful stop and the search—favored suppression. Id . The Court remarked, “ ‘[o]ur precedents have declined to

find that this factor favors a ttenuation unless ‘substantial ti me’ 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 th e evidence “only minutes aft er the illegal stop.” The Court found that the second factor—the presence of interve ning circumstances— “strongly favors the State.” Id . The existence of a valid arrest warrant in that case, reason ed the Court, favored finding that “the connection between unlawful co nduct 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 warra nt was valid, it predated the investigation that led to Strie ff’s arrest, “and it was entirel y unconnected with the stop.” Id

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

Fackrell was authorized to arre st 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 Cour t found that this factor also “strongly favors the State.” Id . The Court explained that the f actor reflects the rationale that exclusion exists to deter police misconduct “by favoring e xclusion 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 neg ligent 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 ask ed if Strieff would be willing to speak with him, rather than demanding that Strieff speak with him, thereby effectuating a s eizure. Id . The Court explained that although Officer Fackrell mad e 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 unla wful stop was part of any systemic

10 “At the suppression hearing, th e prosecutor conceded that Offi cer 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 evide nce suggests that the stop was an isolated instance of negligence that occurred in connection wit h a bona fide investigation of a suspected drug house.” Id

. Applying all of the factors, the Court held that application o f 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 office rs approached Richard Reese outside of an apartment complex that was known for narcotics traffickin g. After a verbal exchange with Reese, the officers informed him that the area was known for dr ug 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 arrest ed Reese for loitering and, upon running Reese’s information in the LEIN network, the officers learned of the ex istence 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—a nd the officers called a tow truck to have an inventory search p erformed 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 loit ering, and any evidence discov ered 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 ass uming the loitering arrest was unlawful, the misdemeanor arrest was lawful, and the office rs 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 wa rrant constitutes an independen t basis, which dissipates the taint from the initial illegal arrest, for conducting the search of R eese’s car[?]” Id . at 297. Similar to the manner in which the United States Supreme Court evaluated t he 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 pres ence 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 illega l 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 pa rticularly 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 loiteri ng—was not particularly egregious or motiv ated by bad faith and only yield ed 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 t he preexisting warrant constituted an intervening circumstance that broke the causal c onnection between the illegal arrest and the disc overy 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 su ppressed. [ Id . at 305.]

In reaching this conclusion, this Court, in a footnote that sh ould 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 conduc ted the search following the illegal arrest and then later dis covered 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 il legal arrest and only later discovered the preexisting warrant, the discovery of the preexisting arrest warrant could not have served to dissipate or attenuate the ill egality 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 outse t 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) searc h and discovery of contraband; the instant case, as it has been ar gued by the prosecutor, involves a different fact pattern: (1) invalid seizure; (2) search and discove ry of contraband; and (3) discov ery of a valid arrest warrant.

Given the differences between this case and Strieff and Reese , we hold that the attenuation doctrine does not ope rate to bar the exclusion of t he evidence. Looking to the factors

enunciated in Strieff and Reese , we note the first factor i n this case favor s suppression beca use by all accounts the time between the illegal detention and the dis covery of the evidence was relatively short. See Strieff , __ US at __; 136 S Ct at 2062; 195 L Ed 2d at 408. The secon d factor is where this case begins to take a significantly differ ent path from Strieff and Reese

. From the evidence presented in t his case, the discovery of the valid warrant for defendant’s arrest was not an intervening act that “broke” the causal chain betwee n the initial, unlawful detention and the discovery of the evidence. Indeed, according to the of ficer’s testimony at the suppression hearing, the warrant had no effect on the actions t aken by police in this case, nor did it have any effect on the evidence that was recovered from defe ndant. In short, the instant case does not involve the discovery of a warrant as an intervening a ct that “purged” the taint from the illegal seizure; rather, it invol ves an after-the-fact discover y of a valid warrant and an attempt to apply that warrant as a post-hoc panacea for unlawful actions t hat were wholly unrelated to that warrant. Stated differently, th e evidence “came to light throu gh exploitation of the illegal conduct” rather than “by means su fficiently dis tinguishable 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 factu al differences between this case

and Strieff and Reese , this second factor strong ly 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 t o 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 becau se 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 suppre ssion—and deterrence— is stronger. Although there is no suggestion from the record that the police officer acted wit h ill intent, and every indication that the Grand Rapids police are attempting to remedy a real pr oblem, 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 thi s conduct satisfied the elements of trespassing as it is defined unde r the pertinent ordinance was not reasonable. Moreover, the officer’s justification for the arrest—the no-trespassing lette r—brings up another important consideration. According to the officer’s testimony at the sup pression hearing, the Grand Rapids Police Department has a practi ce of handing out such letters an d arresting suspects in reliance, at least in part, on the letters. 11 This pattern of behavior sugges ts that the seizure in this ca se could have been part of the “systemic or recurrent police misconduct” about which the Court in Strieff was concerned. Thus, the instant c ase presents a case for dete rrence. 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 decis ion to suppress the evidence seized

in this case.

11 In its opinion and order, the trial court took note of and fo und 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 arres ting officer was awa re of a letter tha t 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 tre spassing 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 re fuses to do so.” Id. at 3. The Court noted that the defendant “was not told to depart from the premi ses, 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 e vidence obtained as a result of the improper arrest. Id at 3.

The American Civil Liberties Union of Michigan and Linc Up sub mitted an amicus brief in this case and attached two Kent County cases—one from the ci rcuit 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 suppr ession is warranted for deterr ence purposes.-14- IV. CONCLUSION There was no probable cause to arrest defendant for trespassin g 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 un reasonable. Moreover, given the

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

in this case.

Affirmed.

/s/ Jane M. Beckering /s/ Jane E. Markey /s/ Douglas B. Shapiro