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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 15, 2016

v No. 329057 Berrien Circuit Court EULALIO RAMOS, JR., LC No. 2013-002012-FH

Defendant-Appellant.

Before: W ILDER , P.J., and M URPHY and O’B RIEN , JJ.

P ER C URIAM

. Defendant, Eulalio Ramos, Jr., was convicted of possession wit h intent to deliver 45 kilograms or more of marijuana, MCL 333.7401(2)(d)( i ), and sentenced to 180 days’ imprisonment and five years’ probation. He appeals as of right his June 28, 2015 judgment of sentence. We affirm.

This case arises out of a traffic stop that occurred in Berrie n County. At approximately 10:30 a.m. on May 17, 2014, Michigan State Police Trooper James Gillespie pulled over defendant after observing him co mmit several traffic violations . Gillespie approached the vehicle, asked defendant for his license, registration, and pro of of insurance, and asked defendant about the purpose of his trip. Defendant provided the document ation and informed Gillespie that “he was going to Grand Rapids” “to see his aunt and nephew but later “changed his story” to his “aunt and cousin, and then started to giggle a little bit, in w hat [Gillespie] took to him making light of the fact that he had stumbled in conversation about wh at he was truly doing.” According to Gillespie, “He appeared to be lying to [him] about the purpo se for his trip.” During the stop, Gillespie noticed “a small child laying on the back seat” “with out a car seat or safety belt on.” Gillespie expressed concern for the child’s safety, and defenda nt first replied that the child’s seat was “in the back” but later “changed that statement, stating, n o, he meant its back home.” Gillespie then returned to his patrol vehicle to review defenda nt’s documentation.

At an evidentiary hearing, Gilles pie described the remainder o f the traffic stop, in pertinent part, as follows:

I re-approach this time on the driver side and asked Mr. Ramos to step out of the vehicle. At that time, his child, his 3-year old child was on his lap and was awake. And, he determined to hold onto his son and brought him back with him, and we spoke at the b ack of his vehicle.-2- * * *

I had had him step out of the vehicle, to the back of his vehi cle, where I could visually . . . attempt to det ermine if he’s still okay to drive. I wa s concerned about his driving. So, when we s poke at the back of his vehicl e and I was in the process of talking to him about the stop and giving him a verba l warning for these items, I was still evaluating his ability to drive. I didn’t s mell alcohol on him. I didn’t see him wobble. In fact, he held his son okay . . . dur ing that time.

* * *

During that conversation at the back of his car, that lasted m aybe one or two minutes, I handed him back h is paperwork, his documents, an d while speaking with him, I realized in my mind that I did not think h e was intoxicated and that I did think he was okay to drive.

At that point, Gillespie testifie d, he returned defendant’s doc umentation, issued a verbal warning, and concluded the traffic stop. Shortly therea fter, however, Gillespie asked defendant whether he would be willing to answer additional questions. Defendant agreed. After defendant denied that “the re was anything illegal going on,” Gillespie asked defendant if he could search the vehicle, and defendant affirmatively agreed that he could. Gillespie procee ded to search defendant’s vehicle and found seven “20 to 25 pound packages” o f marijuana in “red and black duffle bags in the” trunk. Defendant was arrest ed and charged with possession with intent to d eliver 45 kilograms or more of marijuana, MCL 333.7401(2)(d)( i ).

After being charged, defendant moved to suppress “[t]he statem ents and evidence obtained during the stop,” argui ng that they “must be suppresse d pursuant to the United States’ and Michigan’s’ [sic] Constitutions, because neither prong of t he Terry [ v Ohio , 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968),] standards were met . . . .” First, defendant argued that the f irst prong of the Terry standards was not satisfied because “Trooper Gillespie’s reason s for pulling Mr. Ramos over are trivial at b est.” Second, defendant argued that the second prong of the Terry standards was not satisfied based on “the lack of any indicatio n that Trooper Gillespie observed anything that any officer could find to be reasonable or articu lable suspicion that a crime has been or is being committed.” According to defendant, “there wa s no break in the questioning” and no way that defendant “could have known that he was free to go at any point.” The trial court denied defendant’s motion, and defendant was subsequently convicted and sentenced as described above. This appeal followed.

On appeal, defendant challenges the trial court’s opinion and order denying his motion to suppress. “A trial court’s findings of fact on a motion to sup press are reviewed for clear error, while the ultimate decision on the motion is reviewed de novo.” People v Hrlic , 277 Mich App 260, 262-263; 744 NW2d 221 (2007). “In analyzing the propriety of the detention associated with a traffic stop,” courts “appl y the standard set forth in Terry v Ohio , 392 US 1; 88 S Ct 1868; 20 L Ed2d 889 (1968).” People v Williams , 472 Mich 308, 314; 696 NW2d 636 (2005). “[T]he reasonableness of a search or seizure depends on ‘whether the o fficer’s action was justified at its-3- inception, and whether it was reas onably related i n scope to th e circumstances which justified the interference in the first place.’ ” Id ., quoting Terry , 392 US at 20.

On appeal, defendant first argues that Gillespie did not have an articulable and reasonable suspicion for the initial traffic stop, i.e., that Gillespie’s action in pulling him over was not justified at its inception. Williams , 472 Mich at 314. However, “a police officer may stop and detain a motor vehicle on the ba sis of an articulable and reaso nable suspicion that the vehicle or one of its occupants is violating the law[.]” People v Dillon , 296 Mich App 506, 508; 822 NW2d 611 (2012). Here, the record supports the trial court’s f inding that Gillespie had an articulable and reasonable suspicion to stop defendant’s vehicl e. Gillespie testified that he observed defendant’s vehicle cro ss the fog line and divider lin es several times. Video footage from his patrol vehicle supported this testimony. The trial co urt found this testimony credible, and this Court defers to the trial court’s determination in thi s regard. People v Davis , 241 Mich App 697, 700; 617 NW2d 381 (2000). See also People v Christie (On Remand) , 206 Mich App 304, 309; 520 NW2d 647 ( 1994) (holding that t he police officer “had reasonable ca use to suspect ongoing criminal activity, i.e., that [the] defendant may have been intoxicated” when the “[d]efendant’s vehicle was seen s werving in the lane and drivin g on the lane markers”). Therefore, Gillespie had articulable and reasonable suspicion t o stop defendant’s vehicle. The fact that defendant finds the “r easons” for the stop “trivial” has no impact on our analysis in this regard.

Second, defendant argues that, pursuant to the United States S upreme Court’s decision in Rodriquez v United States , ___ US ___; 135 S Ct 1609; 191 L Ed 2d 492 (2015), Gillespie’ s detention of defendant after r eturning his documentation was no t reasonably related to the underlying reason for the stop. Thu s, he claims, any statement s made or evidence found after returning his documentation should have been supressed. Howeve r, in this case, unlike in Rodriguez , defendant was not detained without his consent after Gillespi e returned his documentation and informed him that he would not receive a tick et. Id . at 1613 (stating that the officer “did not consider [the de fendant] free to leave” after completion of the traffic stop because the officer detained the defendant after defendant refu sed to consent to a dog sniff). Here, defendant gave Gillespie consent to ask additional questi ons and search his vehicle. At the evidentiary hearing, Gillespie testified that defendant had the opportunity to leave after his documentation was returned to him and that defendant did not ha ve to answer any additional questions. Given defendant’s consent, his reliance on Rodriquez is misplaced.

To the extent defendant also cl aims that he was not free to le ave at that time, the record supports the trial court’s conclusion that defendant was no lon ger “seized” after Gillespie returned defendant’s documentati on. The trial court explained its decision as follows:

This Court finds that the traffi c stop ended at the point when , after already having returned Defendant’s documentation, Trooper Gillespie in formed Defendant that he was not giving him a ticket and asked Defenda nt if he would mind answering a few more questions. The fact that Trooper Gil lespie began his request for consent to additional questions so quickly after in forming Defendant that he was not going to write him a ticket does make this a cl ose call. However, the totality of the evidence leads to the conclusion that a rea sonable person would have realized the detention was over and felt free to leave. T his was a one-on-one-4- interaction between Trooper Gillespie and Defendant. Trooper G illespie did not block Defendant’s path back to hi s car or use any other showing of force while talking to Defendant. Moreover, neither Trooper Gillespie’s ch oice of words nor tone of voice was overly forceful or authoritative; in fact, itwas extraordinarily congenial and polite.

Most importantly, although Tr ooper Gillespie did not explicitl y inform Defendant that he was free to leave, he did impliedly inform hi m of his right to refuse the request to answer more questions. Trooper Gillespie qualified his initial request by stating “if you don’t mind” and then sought clarification of Defendant’s answer by asking “is that yes or no?” Upon hearing that, a reasonable person would have concluded that “no” was an accepta ble answer and would have felt free to t erminate the encounter.

We agree with the trial court in this regard. “A ‘seizure’ wi thin the meaning of the Fourth Amendment occurs only if, in view of all the circumstanc es, a reasonable person would have believed that he was not free to leave.” People v Jenkins , 472 Mich 26, 32; 691 NW2d 759 (2005). Here, after Gillespie returned defendant’s documentati on and gave him a verbal warning, Gillespie stated that he had some further questions he would like to ask defendant if defendant did not mind. Defendant said “okay,” and, after Gill espie asked whether that was a yes or no, defendant answered “yes.” Although the request for defendant to answer additional questions occurred shortly after Gillespie returned defendant’s documentation, “in view of all the circumstances, a reasonable person would have believed that he” was free to leave. In addition, nothing in the record suggests “t hat intimidating circumstances compelled defendant to cooperate.” People v Shankle , 227 Mich App 690, 697; 577 NW2d 471 (1998). Defendant had the opportunity to decline answer ing more questions and termina te the encounter but chose not
to. Jenkins , 472 Mich at 32-33. Therefore, the trial court properly concl uded that defendant was no longer seized after Gillespie returned defendant’s documenta tion and advised him that he would not receive a ticket.

Additionally, the trial court properly concluded that defendan t’s consent to search his vehicle was voluntary. Consent to search is an exception to th e Fourth Amendment’s warrant and probable cause requirements. Schneckloth v Bustamonte , 412 US 218, 219; 93 S Ct 2041; 36 L Ed 2d 854. However, for consent to be valid, it must be voluntary. Id . at 222; see also People v Borchard-Ruhland , 460 Mich 278, 294; 597 NW2d 1 (1999). Here, defendant consen ted to the search of his vehicle. The record contains no evidence that Gi llespie threatened or coerced defendant in any way. See Williams , 472 Mich at 318 (stating that “[a]n investigatory stop . . . is not so inherently coercive that it renders involuntary consent given during the stop”). “While most citizens will respond to a police request, the fact that p eople do so, and do so without being told they are free not to respond, hardly eliminates the consen sual nature of the response.” Immigration & Naturalization Service v Delgado , 466 US 210, 216; 104 S Ct 1758; 80 L Ed 2d 247 (1984); see also Jenkins , 472 Mich at 33.

Based on the foregoing, the trial court did not err in denying defendant’s motion to suppress. The trial court properl y concluded that Gillespie ha d articulable and reasonable suspicion to stop defendant’s veh icle, that defendant was no lo nger “seized” pursuant to the Fourth Amendment once Gillespie returned defendant’s documentat ion and advised him that he-5- would not be writing a ticket, and that defendant voluntarily c onsented to answering Gillespie’s additional questions and to t he search of his vehicle.

Affirmed.

/s/ Kurtis T. Wilder /s/ William B. Murphy /s/ Colleen A. O’Brien