CA6: Hanging air freshener statute in Michigan unconstitutional, but stop valid under DeFillippo and Krull (withdrawn)

The Michigan statute that would criminalize air fresheners hanging from rear view mirrors was unconstitutionally vague. A stop on that statute was still valid, and the court does not suppress under DeFillippo and Krull. United States v. Davis, 2008 U.S. App. LEXIS 25757 (6th Cir. December 19, 2008):

While we have held the Michigan statute unconstitutional, that does not end the matter of whether Davis’s motion to suppress was improperly denied. The usual remedy when evidence is obtained through an unconstitutional search is exclusion; however, the good faith exception to the Exclusionary Rule applies to searches conducted in good faith reliance on a presumptively valid statute. Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); Michigan v. De Fillippo, 443 U.S. 31, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979). In Michigan v. DeFillippo, the Supreme Court held that the Exclusionary Rule did not apply to a seizure performed pursuant to a Detroit statute that was later declared to be void for vagueness. In doing so, it explained that the Exclusionary Rule was a remedy designed to deter unlawful police conduct, and that exclusion of evidence obtained through a good faith search based upon a presumptively valid statute would have no deterrent effect. 443 U.S. at 38 n.3.

This logic applies equally here. United States v. Cardenas-Alatorre, 485 F.3d 1111, 1116 (10th Cir. 2007) (holding that DeFillippo “compel[s]” admission of evidence even though the statute at issue was arguably vague). As explained above, MICH. COMP. LAWS § 257.709(1)(c) is unconstitutionally vague. But, as the Supreme Court explained in DeFillippo, absent unusual circumstances, Westland police are not expected to know this. Indeed, police are under a duty to enforce all laws that are not obviously unconstitutional. 443 U. S. at 38. The statute at issue here is not so obviously vague that officers could reasonably be charged with knowledge of its unconstitutionality. And, given the breadth of the language of this enactment, it is difficult to say their reliance upon it was not “objectively reasonable.” Krull, 480 U.S. at 349-50; cf. Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”).

Opinion ordered withdrawn December 31, 2008.