If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

UNPUBLISHED

September 22, 2022

v No. 357302

Wayne Circuit Court

PAUL LAMOUNT GOREE, LC No. 18-009718-01-FH

Defendant-Appellee.

Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.

PER CURIAM.

The prosecution appeals as of right the order dismissing the charges against defendant of 

possession of less than 25 grams of cocaine, MCL 333.7403(2)(a)(v); possession of the controlled 

substance Alprazolam, MCL 333.7403(2)(b); and possession of marijuana, MCL 333.7403(2)(d). 

The issue in this appeal is whether the trial court erred in granting defendant’s motion to suppress 

evidence seized during a search of the vehicle in which defendant was a passenger. The 

prosecution also disputes the trial court’s order requiring the return of civil forfeiture funds to 

defendant. We reverse and remand for further proceedings.

I. BACKGROUND

Dearborn Heights Police Department Officer Jacob Esposito executed a traffic stop of the 

vehicle in which defendant was a passenger after observing the vehicle’s license plate was unlit. 

According to Officer Esposito, the vehicle stopped within a reasonable amount of time, and there 

was no reason to suspect the vehicle’s occupants possessed any illegal substances.

After verifying that the vehicle and the driver were properly licensed and insured, Officer 

Esposito returned to the vehicle. Before releasing the vehicle, however, Officer Esposito observed 

that the driver continued to appear “nervous” and “fidgety,” so Officer Esposito asked the driver 

to step out of the vehicle. Officer Esposito then observed defendant make a “furtive gesture” to 

the floor of the vehicle, and Officer Esposito thought defendant, too, appeared “a little nervous.” 

Defendant was also ordered from the vehicle. As defendant exited the vehicle, Officer Esposito 

smelled marijuana and noticed a small orange pill on the passenger seat where defendant was 

sitting. Officer Esposito searched the vehicle where illegal substances were discovered. 
-2-

Defendant moved the trial court to dismiss, arguing Officer Esposito illegally prolonged 

the traffic stop and, therefore, the evidence obtained as a result of the stop should be suppressed. 

The trial court agreed, finding that the search and seizure were unreasonable. As a result of this 

ruling, defendant moved to dismiss the charges, which the trial court granted. Defendant moved 

for the return of $554 seized along with the substances, which the trial court also granted. This 

appeal followed.

II. SUPPRESSION OF THE EVIDENCE

A. PRESERVATION AND STANDARD OF REVIEW

Generally, an issue must be raised in the trial court to preserve it for appellate review.

People v Heft, 299 Mich App 69, 78; 829 NW2d 266 (2012). The prosecution presents several 

arguments contesting the trial court’s order suppressing the evidence—some of which are 

unpreserved for our review because they were not presented in the trial court. These unpreserved 

arguments include the prosecution’s contention defendant lacks standing to challenge the search 

of the subject vehicle, and that Officer Esposito’s search was reasonable under the search incident 

to lawful arrest exception to the warrant requirement. The prosecution’s other arguments 

contesting the suppression of the evidence are preserved because some variation of these 

arguments was presented to the trial court. 

This Court reviews de novo a trial court’s decision on a motion to suppress. People v 

Henry (After Remand), 305 Mich App 127, 137; 854 NW2d 114 (2014). With respect to the 

prosecution’s preserved arguments, this Court reviews for clear error the trial court’s factual 

findings as to a motion to suppress. People v Hrlic, 277 Mich App 260, 262-263; 744 NW2d 221 

(2007). “Clear error exists when the reviewing court is left with a definite and firm conviction that 

a mistake was made.” People v Blevins, 314 Mich App 339, 348-349; 886 NW2d 456 (2016). The 

prosecution’s unpreserved arguments are reviewed for plain error. People v Carines, 460 Mich 

750, 763; 597 NW2d 130 (1999).

“To avoid forfeiture under the plain error rule, three requirements must be met: 1) error 

must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected 

substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the 

error affected the outcome of the lower court proceedings.” Id. (quotation marks and citation 

omitted). “Reversal is warranted only when the plain, forfeited error resulted in the conviction of 

an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public 

reputation of judicial proceedings independent of the defendant’s innocence.” Id. at 763-764 

(quotation marks and citation omitted). “To the extent that a trial court’s ruling on a motion to 

suppress involves an interpretation of the law or the application of a constitutional standard to 

uncontested facts, our review is de novo.” People v Clark, 330 Mich App 392, 415; 948 NW2d 

604 (2019) (quotation marks and citation omitted).

B. LAW AND ANALYSIS

The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures, shall not be violated, and no Warrants 
-3-

shall issue, but upon probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and the persons or things to be 

seized.[1] [US Const, Am IV (footnote added).]

“[T]he ‘touchstone of the Fourth Amendment is reasonableness.’ ” People v Williams, 472 Mich 

308, 314; 696 NW2d 636 (2005), quoting Ohio v Robinette, 519 US 33, 39; 117 S Ct 417; 136 L

Ed 2d 347 (1996). “Reasonableness is measured by examining the totality of the circumstances. 

Because of endless variations in the facts and circumstances implicating the Fourth Amendment, 

reasonableness is a fact-intensive inquiry that does not lend itself to resolution through the 

application of bright-line rules.” Williams, 472 Mich at 314 (quotation marks and citations

omitted). “A warrantless search and seizure is unreasonable per se and violates the Fourth 

Amendment of the United States.” People v Reed, 393 Mich 342, 362; 224 NW2d 867 (1975). 

Under the exclusionary rule, evidence obtained as a result of an illegal search or seizure is 

generally regarded as “fruit of the poisonous tree” and will be excluded in the case against the 

defendant. People v Mahdi, 317 Mich App 446, 470; 894 NW2d 732 (2016). “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 Maggit, 319 Mich App 675, 693-694; 

903 NW2d 868 (2017). This 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 exclusionary rule is designed to deter future Fourth Amendment violations by law 

enforcement. People v Hill, 299 Mich App 402, 412; 829 NW2d 908 (2013), quoting Davis v 

United States, 564 US 229, 236-237; 131 S Ct 2419; 180 L Ed 2d 285 (2011).

A traffic stop is considered a seizure for purposes of the Fourth Amendment. People v 

Simmons, 316 Mich App 322, 326; 894 NW2d 86 (2016) (“[S]topping a vehicle and detaining the 

occupants amounts to a seizure.”); Brendlin v California, 551 US 249, 256-257; 127 S Ct 2400; 

168 L Ed 2d 132 (2007) (A passenger was seized for purposes of the Fourth Amendment because 

a reasonable person in the passenger’s position would not feel free to terminate the encounter and 

leave.). An officer may stop a vehicle so long as the officer has probable cause to believe a 

violation of traffic laws has occurred. People v Davis, 250 Mich App 357, 363; 649 NW2d 94 

(2002). After stopping the vehicle, the officer may detain the vehicle long enough to run a Law 

Enforcement Information Network (“LEIN”) check, id. at 364-368, and to ask reasonable 

 

1 Similarly, the Michigan Constitution states:

The person, houses, papers, possessions, electronic data, and electronic 

communications of every person shall be secure from unreasonable searches and 

seizures. No warrant to search any place or to seize any person or things or to 

access electronic data or electronic communications shall issue without describing 

them, nor without probable cause, supported by oath or affirmation. The provisions 

of this section shall not be construed to bar from evidence in any criminal 

proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous 

weapon, seized by a peace officer outside the curtilage of any dwelling house in 

this state. [Const 1963, art 1, § 11.]
-4-

questions concerning the alleged traffic violation, with due concern for the safety of the encounter. 

Williams, 472 Mich at 315. “Authority for the seizure thus ends when tasks tied to the traffic 

infraction are—or reasonably should have been—completed.” Rodriguez v United States, 575 US 

348, 354; 135 S Ct 1609; 191 L Ed 2d 492 (2015). However, “when a traffic stop reveals a new 

set of circumstances, an officer is justified in extending the detention long enough to resolve the 

suspicion raised.” Williams, 472 Mich at 315. 

The trial court ruled that Officer Esposito did not have probable cause to search the 

passenger side of the vehicle because the officer testified that defendant only made a “furtive 

gesture,” and did not indicate anything else of concern. But Officer Esposito’s testimony, which 

was unrefuted, was that the driver of the vehicle appeared nervous and fidgety during the entirety 

of the stop. Under Pennsylvania v Mimms, 434 US 106; 98 S Ct 130; 43 L Ed 2d 331 (1977) and 

its progeny, Officer Esposito did not violate the Fourth Amendment by ordering the driver and 

defendant out of the vehicle. 

Mimms held that “once a motor vehicle has been lawfully detained for a traffic violation, 

the police officers may order the driver to get out of the vehicle without violating the Fourth 

Amendment’s proscription of unreasonable searches and seizures.” Id., 434 US at 111 n 6. Mimms

established a “bright line” rule. Maryland v Wilson, 519 US 408, 413 n 1; 117 S Ct 882; 137 L Ed

2d 41 (1997). This bright-line rule was summarized by then-Judge Kavanaugh in United States v 

Bullock, 379 US App DC 114, 117; 510 F3d 342 (2007):

The bright-line rule of Mimms means that ‘a police officer may as a matter of course 

order the driver of a lawfully stopped car to exit his vehicle.’ Wilson, 519 US at 

410. The Supreme Court later extended the bright-line rule to passengers, holding 

that ‘an officer making a traffic stop may order passengers to get out of the car 

pending completion of the stop.’ Id. at 415. As the Supreme Court has explained, 

the risk of harm to the police when stopping a car ‘ “is minimized if the officers 

routinely exercise unquestioned command of the situation.” ’ Brendlin v California, 

551 US 249; 127 S Ct 2400, 2407; 168 L Ed 2d 132 (2007) (quoting Wilson, 519 

US at 414).

Thus, it is not violative of the Fourth Amendment for an officer to ask the occupants of a vehicle 

to exit the vehicle prior to the completion of the traffic stop. 

It is equally well-settled that a traffic stop is not over until the officer completes his 

investigation and releases the driver to leave. Arizona v Johnson, 555 US 323, 333; 129 S Ct 781;

172 L Ed 2d 694 (2009) (“Normally, the stop ends when the police have no further need to control 

the scene, and inform the driver and passengers they are free to leave.”). See also, Bullock, 379 

US App DC at 348 n 1 (noting that “the stop would not have terminated until, at a minimum, 

Officer Jackson issued citations for Bullock’s traffic violations or decided to let Bullock depart”), 

and United States v Lott, 954 F3d 919, 923-924 (CA 6, 2020). This rule must, of course, be 

understood in light of Rodriguez, where the Court held that the constitutionally tolerable length of 

a traffic stop is determined by when the mission to complete the traffic stop ends or reasonably 

should have ended. Rodriguez, 575 US at 350-351 (“We hold that a police stop exceeding the time 

needed to handle the matter for which the stop was made violates the Constitution’s shield against 

unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, 
-5-

‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] 

mission’ of issuing a ticket for the violation”).

But Rodriguez did not modify the Mimms rule; it instead just reaffirmed the principle that 

a traffic stop ends, absent reasonable suspicion to commence a new investigation into other 

criminal activity, once a reasonable time has passed to allow the officer to investigate the traffic 

issue and ensure safety during the encounter. Id., at 354-356. This was the recent conclusion of 

the Wisconsin Supreme Court: 

Brown argues Rodriguez narrowed the per se rule of Mimms to allow removal from 

a vehicle only if attendant to the mission of the stop. Not quite. With respect to 

Mimms, Rodriguez said only that a dog sniff did not serve the same ‘highway and 

officer safety ... interests’ as those justifying ordering the driver to exit the vehicle, 

while emphasizing that the officer safety interest ‘stems from the mission of the 

stop itself.’ Rodriguez, 575 US at 356-57. As Brown conceded at oral argument,

issuing a traffic ticket is part of the traffic stop. At the time Deering directed Brown 

to exit the vehicle, Deering still had the ticket and Brown’s driver’s license in his 

possession, leaving part of the traffic stop’s mission uncompleted. See State v

Floyd, 377 Wis 2d 394; 2017 WI 78; 898 NW2d 560 (2017) (‘Until [drafting the 

tickets and explaining them to the driver] is done, and so long as [law enforcement] 

does not unnecessarily delay the process, the permissible duration of the traffic stop 

has not elapsed.’ (citing Rodriguez, 575 US at 354-55)). Finally, Brown argues 

the stop ‘reasonably should have been completed’ because Deering had completed 

writing the ticket, so all that remained was handing the ticket to Brown and ending 

the seizure. We rejected this argument in Floyd and have no reason to reconsider 

it. Id. Because the mission of the stop continued, officer safety remained a viable 

concern and the per se rule of Mimms fully applies. [State v Brown, 392 Wis 2d 

454, 470; 2020 WI 63; 945 NW2d 584 (2020)].

Accord: Hill v State, 360 Ga App 683, 688; 859 SE2d 891 (2021) (Recognizing that the officer 

did not exceed his authority by asking the defendant to exit the vehicle after completing the ticket 

paperwork and returning to defendant’s vehicle), State v Pylican, 167 Idaho 745, 754; 477 P3d 

180 (2020) (Concluding that Rodriguez did not abrogate Mimms; “Instead, Rodriguez stands for 

the proposition that the underlying safety concerns which justify exit orders do not extend to 

general criminal investigations that are undertaken when the purpose of the lawful stop has been 

abandoned”), and United States v Washington, 385 US App DC 144, 147-149; 559 F3d 573 (2009).

Here, Officer Esposito had completed the check of the driver’s credentials and was 

returning to the car to hand the papers back to the driver. When he returned to the vehicle Officer 

Esposito noticed that the driver continued to appear nervous and fidgety, and ordered him out of 

the car.2 It was at that point that the officer saw defendant make the furtive gesture while the driver 

 

2 Officer Esposito could not recall whether he handed back the driver’s information prior to asking 

him to exit the vehicle, while defendant testified that the driver was asked out of the vehicle before 

initially providing Officer Esposito with that paperwork. In the trial court’s decision it noted that 
-6-

was exiting the vehicle. Thus, the stop was nearing its end but was in no way complete when the 

gesture (and the driver’s nervousness/fidgeting) was seen.3 At that point, under Mimms and its 

progeny, Officer Esposito could order all occupants out of the vehicle to ensure officer safety. 

Although case law is fairly consistent in holding that nervousness alone does not provide 

an officer with reasonable suspicion that criminal activity is afoot (essentially on the ground that 

most all motorists are nervous during a traffic stop), see, e.g., United States v Blair, 524 F3d 740, 

753 (CA 6, 2008),

4 Officer Esposito did not need reasonable suspicion to ask both defendant and 

the driver to exit the vehicle. Instead, the objective need for officer safety—particularly when 

combined with the driver’s nervousness/fidgeting and defendant’s furtive motion made towards 

the vehicle floor—was enough to order them out. Importantly, the concern for officer safety is an 

objective one, and is not reliant on the officer himself testifying to that concern. See United States

v Goodwill, 24 F3d 612, 615 (CA 7, 2022) (“A police officer can ask a driver to sit in the police 

car for the duration of a traffic stop without any particularized suspicion of dangerousness.”).

Indeed, in Mimms itself, the Court upheld an exit order where the officer “freely concede[d]” that 

he had “no reason to suspect foul play from the particular driver at the time of the stop . . .” Mimms, 

434 US at 109.

It is true that Officer Esposito could have simply handed back the documents and let the 

vehicle leave. But his decision not to do so did not prolong the traffic stop, at least not in the sense 

 

the driver was asked out of the vehicle prior to being given the ticket. In any event, it appears 

undisputed that Officer Esposito had not released the driver at the time he asked him to exit the 

vehicle.

3 Our dissenting colleague asserts that our conclusion that the stop was not over until Officer 

Esposito handed back the paperwork to the driver constitutes our own fact-finding. Not true. 

Instead, we exclusively rely upon the cited caselaw indicating that a stop is not over until the 

officer returns the documents and releases the driver. See Arizona, 555 US at 333; Bullock, 379 

US App DC at 348 n1; Lott, 954 F3d at 923-924; Brown, 392 Wis 2d at 470. We agree with the 

dissent that an officer cannot unreasonably extend the stop without running afoul of the Fourth 

Amendment (absent evidence of a new crime), but Officer Esposito did no such thing. He was 

simply returning to the car to hand the documents to the driver when he saw the continued 

nervousness and asked him out of the car, where he then saw defendant make a furtive gesture. 

This raised an officer safety concern, and as Mimms recognized, “[e]stablishing a face-to-face 

confrontation diminishes the possibility, otherwise substantial, that the driver can make 

unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of 

an assault.” Mimms, 434 US at 110.

4 But see United States v Edmonds, 345 US App SC 131, 137; 240 F3d 55 (2001) (suspect reached 

under driver’s seat and held that “this Court recognizes that ‘furtive’ gestures in response to the 

presence of the police can serve as the basis of an officer’s reasonable suspicion”) and Washington, 

385 US App DC at 148 (“It is well settled that an individual’s furtive movements may be grounds 

for reasonable suspicion and fear, justifying a Terry stop and search”).
-7-

of the traffic stop turning into a new investigation.5 Instead, a legitimate and objective concern 

was presented by a driver who continued to be nervous and fidgety upon the officer’s return to the

vehicle. Because the stop was not complete, Officer Esposito could order the driver out. Ordering 

the driver out at this point did not change the course of the stop, nor did it extend it beyond the 

nonconstitutional concern of asking a driver to exit the vehicle. Mimms, 434 US at 111. And, as 

the driver exited, defendant made a furtive gesture towards the floor. Under Mimms, the officer 

was free to ask both persons out of the vehicle. After that happened, there is no reasonable 

argument that the smell of marijuana and defendant’s admission to possessing same without a 

lawful ability to do so, MCL 333.7403(2)(d), provided probable cause to arrest defendant and 

engage in a search incident to that arrest.6 

For these reasons, we reverse the trial court order suppressing the evidence, and remand 

for further proceedings. We do not retain jurisdiction.

/s/ Michael J. Kelly

/s/ Christopher M. Murray 

 

5

It would not, for example, violate the Fourth Amendment for an officer to ask the driver to exit 

the vehicle to hand back the paperwork and any ticket or warning. This holds true because, until 

a traffic stop is over, an officer is operating in a situation fraught with unknown or hidden dangers. 

Mimms, 434 US at 110-111; Rodriguez, 575 US at 356 (“Traffic stops are ‘especially fraught with 

danger to police officers,’ so an officer may need to take certain negligibly burdensome 

precautions in order to complete his mission safely.” (emphasis added) (citations omitted)).

6 We decline to resolve whether the trial court had jurisdiction to return the civil forfeiture funds 

because the issue is not properly before this Court. First, the question was not contained in the 

questions presented. This Court has rejected consideration of issues not contained in the questions 

presented. See People v Albers, 258 Mich App 578, 584; 672 NW2d 336 (2003) (declining to 

consider an argument not in the question presented). Second, it does not appear the prosecution 

presented any evidence or argued that the trial court lacked jurisdiction. The issue is not properly 

preserved.