PEOPLE v NELSON
Docket No. 94714
Supreme Court of Michigan
September 8, 1993
443 MICH 626
Argued May 5, 1993 (Calendar No. 10).
In an opinion by Justice BRICKLEY, joined by Justices BOYLE, RILEY, GRIFFIN, and MALLETT, the Supreme Court held:
Under the facts of this case the law enforcement officers had a reasonable, articulable, and particular suspicion that the defendants had engaged in buying, attempting to buy, or delivering drugs, and, thus, were justified in stopping the vehicle in which the defendants were riding.
- There is no bright line rule to test whether the suspicion giving rise to an investigatory stop was reasonable, articulable, and particular. Common sense and everyday life experiences predominate over uncompromising standards. Therefore, deference should be given to an experienced law enforcement officer who states that certain behavior by particular individuals exhibits a “carbon copy” of behavior the officer would otherwise believe to be a drug purchase. In analyzing the totality of the circumstances, law enforcement officers are permitted, if not required, to consider the modes or patterns of operation of certain kinds of lawbreakers and to draw inferences and make deductions.
- Where a police officer observes unusual conduct that leads to a reasonable conclusion that in light of experience criminal activity may be afoot, the officer briefly may stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling the suspicions. In balancing the competing interests, namely, the nature and quality of the intrusion of the defendants’ Fourth Amendment rights with the government‘s interest in controlling the explosive existence of drugs, on the basis
of the facts of this case an investigatory stop was a minimal intrusion. - Because the police were justified in making the investigatory stop, they would have been justified in performing a protective patdown if they reasonably believed the defendants could have been armed and dangerous. Because the Court of Appeals found that the stop of the vehicle was unconstitutional, it was unnecessary for it to reach this issue and whether the patdown was within the parameters of Terry v Ohio, 392 US 1 (1968), requiring reversal and remand for further proceedings.
Reversed and remanded.
Chief Justice CAVANAGH, joined by Justice LEVIN, dissenting, stated that the departure from a known or suspected criminal location, without more, does not transform a person into a criminal, providing the basis for reasonable suspicion to temporarily stop and detain the person. Because, in this case, the record supports the trial court‘s conclusion that the police lacked an articulable, reasonable suspicion to believe that the defendants were involved in criminal activity, and because its decision to suppress the evidence was not clearly erroneous the judgment of the Court of Appeals should be affirmed.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Joe Filip, Prosecuting Attorney, and Margo C. Runkle, Chief Appellate Attorney, for the people.
Cleophas Culp, Jr., and Brian E. Thiede for the defendants.
Amici Curiae:
Bruce A. Barton for the Criminal Defense Attorneys of Michigan.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Patrick Shannon, President, Prosecuting Attorneys Association of Michigan, John D. O‘Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, for the Prosecuting Attorneys Association of Michigan.
I
On the evening of March 16, 1989, the Jackson police were told by a confidential, reliable informant1 that drugs were being sold at 515 Oak Street. Just two weeks earlier, after keeping the house under surveillance long enough to witness a number of in-and-out quick stops typical of drug transactions, all of which resulted in arrests for cocaine possession, a search warrant was issued for the house and resulted in cocaine and drug paraphernalia being found on the premises. One of the occupants of the house, Ms. Ivy Torry, told the officer performing the search, who was also in charge of the present case, that she indeed had been selling cocaine from the house.
On the basis of that information the police arranged for the informant to make a controlled purchase with marked bills. The police searched the informant and the informant‘s car, and gave the informant $60. The informant was unable to personally enter the house, but arranged for some-
The officer in charge proceeded to obtain a search warrant, while other officers maintained surveillance of the house. After approximately thirty minutes, the defendants were observed in an older model Camero driving up to the house. All three entered the house and remained there for only four minutes. One of the detectives watching the house testified that on the basis of his twenty-three years experience, the defendants’ behavior was characteristic of a “crack-house” buy: “a short visit, in/out, back in the car and down the road.” It was described as a “carbon copy” of what had occurred two weeks earlier.
A few moments after the defendants left the house, they were stopped by the police to investigate the possible drug transaction. There was conflicting testimony by the law enforcement officers at the scene regarding the exact order of the
The officer at the scene testified that he approached the passenger‘s side of the Camero as the detective approached the driver‘s side. The right front passenger was asked to step from the vehicle and was searched for weapons and contraband. The rear seat passenger, defendant Jones, was then asked to get out of the car and was patted down, revealing an open bottle of gin in his belt. The circuit court found that “[t]he occupants were ordered out of the car based upon the officers’ belief that people involved in drug trafficking quite frequently did have weapons, and thereafter, open intoxicants were found, arrests were made, and a search of the vehicle and of the persons revealed crack cocaine.” Later, upon booking, more cocaine was discovered in the socks of defendant Jones.
The defendants were charged with possession of less than twenty-five grams of cocaine.
We take the contrary view.7
II
The conduct of the police in this case implicates the Search and Seizure Clause of the Fourth Amendment of the United States Constitution.8 The type of intrusion authorized by Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), has been extended to permit investigative stops under various circumstances for what has been called “‘special law enforcement needs.‘” See People v Shabaz, 424 Mich 42, 58, n 6; 378 NW2d 451
III
The Court of Appeals in this case suggests that the defendants could have been at the house for any number of reasons, and that “presence, alone, is not sufficient to give rise to a particularized suspicion of criminal activity.” However, the absence of apparent innocent behavior has never been a requirement for the suspicion required to make an investigatory stop. United States v Sokolow, 490 US 1, 9; 109 S Ct 1581; 104 L Ed 2d 1 (1989). The question is not whether the conduct is innocent or guilty. Very often what appears to be innocence is in fact guilt, and what is indeed entirely innocent may in some circumstances provide the basis for the suspicion required to make an investigatory stop. Thus, the focus is on the “‘degree of suspicion that attaches to particular types of noncriminal acts.‘” Id. at 10.
Similarly, defendant Jones argues:
In this case, since the police were dealing with a home where all the activities of life were conducted and the occasional sale of controlled substances was only a part of the total activities, police could not have formed a reasonable suspicion that Defendant‘s presence was for the purpose of purchasing drugs.10
As stated above, the question is not one of a “classic” crack house, likelihood or unlikelihood, or an “occasional sale.” The question is the suspicion generated by a four-minute stop at 9:30 P.M. by a Camero containing three males at a house, not only suspected of, and under surveillance for, drug dealing, but which had a history of a prior successfully executed search warrant, a witnessed-controlled drug purchase, and reliable information that it continued to operate as a drug house.11
Defendants also argue that because the law
Defendant Nelson suggests that it is possible that the buyer did not get the cocaine from the house, but rather sold the unwitting informant what he had in his possession at the time, making entrance to the house only a pretext, and therefore, that the officers could not have formed the reasonable suspicion required to stop the defendants. In support of this contention, the defendant states that there is nothing in the record indicating whether the fifty dollars of marked money was ever found.
While we do not comment on the validity of the warrant partially based on the “uncontrolled” purchase, as far as distrusting the suspicion garnered from the transaction for purposes of stopping the defendants, we note that “[t]he process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Cortez at 418. See also Illinois v Gates, 462 US 213, 233; 103 S Ct 2317; 76 L Ed 2d 527 (1983).
On the basis of the foregoing information applicable to the house alone, a search warrant was issued by a neutral and detached magistrate. While acknowledging that the evidence regarding the house is not particularized with respect to the persons in the car, we note that the standard for a search warrant is probable cause, which requires more than reasonable suspicion. Sokolow at 7. Further, the law enforcement officers had an interest in ensuring that no contraband or marked money left the house while awaiting the arrival of the search warrant. See Michigan v Summers, 452 US 692, 704-705; 101 S Ct 2587; 69 L Ed 2d 340 (1981). Moreover, courts have held that an “uncontrolled” purchase may be used to satisfy the requirements of probable cause, and the fact that the purchase is uncontrolled does not make it totally unreliable. United States v Fluker, 543 F2d 709, 713-714 (CA 9, 1976); United States v Satterwhite, 980 F2d 317, 321, n 5 (CA 5, 1992).
Third, this statement by Ms. Torry alerted the officers to the fact that the supply, if indeed it was depleted, was going to be replenished shortly. The officers would have been watchful for some type of delivery—there is no reason why they should not have suspected the defendants to be making that delivery. Moreover, if the defendants did make the delivery, there is no suggestion that they would not have continued to possess some controlled substance after their departure. Finally, with a search warrant on the way, the police would be interested in ensuring that any contraband and the marked money remained in the house and did not escape via some accomplice or another drug transaction before the execution of the search warrant.
It is apparent that just as many illegal implications can be attributed to the conduct as legal ones, but as stated above, the question is not the number of scenarios that the imagination can conjure, but the degree of suspicion conferred on the seemingly legal conduct.12
There is no bright line rule to test whether the suspicion giving rise to an investigatory stop was reasonable, articulable, and particular. Common
A similar case was recently presented to the Minnesota Supreme Court. State v Dickerson, 481 NW2d 840, 843 (Minn, 1992), aff‘d on other grounds 508 US 366; 113 S Ct 2130; 124 L Ed 2d 334 (1993). In that case, two police officers observed the defendant leaving a house known for cocaine traffic, and the defendant, upon seeing the police officers, turned around and began walking in the other direction. On the basis of that information, the officers decided to stop the defendant to investigate further. The trial court held that the investigatory stop and protective patdown were justified under Terry, and the Court of Appeals and the Minnesota Supreme Court both agreed with that finding.
Simply being in a high crime area is certainly not enough evidence to meet the required level of suspicion, Shabaz at 60, but in Dickerson there
In the analysis of Dickerson, the United States Supreme Court stated the rule applicable to the present case as follows:
“[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot” the officer may briefly stop the suspicious person and make “reasonable inquiries” aimed at confirming or dispelling his suspicions. [124 L Ed 2d 344.]
In balancing the competing interests at stake, namely, the nature and quality of the intrusion of an individual‘s Fourth Amendment rights with the government‘s interest in controlling the explosive existence of drugs, we think that on the basis of the facts of this case an investigatory stop is a minimal intrusion. United States v Montoya de Hernandez, 473 US 531, 537; 105 S Ct 3304; 87 L Ed 2d 381 (1985). See also United States v Mendenhall, 446 US 544, 561; 100 S Ct 1870; 64 L Ed 2d 497 (1980), and United States v Place, 462 US 696, 704; 103 S Ct 2637; 77 L Ed 2d 110 (1983).14
The detective in this case articulated at the
The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Adams v Williams, 407 US 143, 145-146; 92 S Ct 1921; 32 L Ed 2d 612 (1972).]
IV
We hold that under the facts of this case the law enforcement officers had a reasonable, articulable, and particular suspicion that the defendants had engaged in buying, attempting to buy, or deliver-
and, when he saw what appeared to be two strange men watching him, he began to run. On the basis of those facts, we held that the police officers did not have the requisite particularized suspicion to stop the defendant. The only factors were carrying a paper bag and running from a plain-clothes officer in a high crime area. There was not the entry, short stay, and exit from a house known to be the site of drug sales and expecting a delivery of drugs, that we have in the present case.
Because the police were justified in making the investigatory stop, they would be justified in performing a protective patdown if they reasonably believed the defendants could be armed and dangerous, and, if such a finding is warranted, the remaining question is whether the patdown was within the parameters of Terry. Dickerson, 124 L Ed 2d 344. See 3 LaFave, Search and Seizure (2d ed), § 9.4(a), p 506. The defendants raised these issues before the Court of Appeals, and defendant Jones presents them to this Court; however, because of the finding of the Court of Appeals that the stop of the vehicle was unconstitutional, it was unnecessary for it to reach these questions.
Therefore, the case is reversed and remanded to the Court of Appeals for proceedings consistent with this opinion.
BOYLE, RILEY, GRIFFIN, and MALLETT, JJ., concurred with BRICKLEY, J.
CAVANAGH, C.J. (dissenting). In this case we are presented with the issue whether the trial court properly granted the defendants’ motion to suppress evidence. A trial court‘s ruling on a motion to suppress evidence is entitled to deference and is not to be disturbed unless clearly erroneous. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). Because the trial court‘s decision to suppress the evidence was not clearly erroneous, I would affirm the decision of the Court of Appeals.
In Terry v Ohio, 392 US 1, 30; 88 S Ct 1868; 20 L Ed 2d 889 (1968), the United States Supreme Court recognized the constitutionality of what has become known as a “Terry” stop. Under the rule announced, an officer may temporarily detain a person when the officer has an articulable, reasonable suspicion that the defendant is involved, or about to be involved, in criminal activity. The great debate over the circumstances that permit a finding of reasonable suspicion continues, despite the rule‘s twenty-five year history. While a concrete definition has yet to emerge, the basic guidelines, as announced in Terry, remain instructive:
[I]n making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulable hunches, a result this Court has consistently refused to sanction. And simple “good faith on the part of the arresting officer is not enough.” . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police. [Id. at 21-22. Citations omitted.]
The continued requirement for a valid “Terry” stop is that the police must possess an articulable, reasonable suspicion that criminal activity is afoot. See United States v Sutton, 794 F2d 1415, 1426 (CA 9, 1986). An “inchoate” or “unparticularized suspicion or hunch” is not sufficient to provide the
II
I would hold that the trial court properly concluded, under the totality of the circumstances, that the police lacked reasonable suspicion when they stopped the defendants.
A
Contrary to the state‘s assertion, the defendants’ visit to an alleged “crack house,”1 without addi-
In Shabaz, this Court held that the defendant‘s departure from an apartment complex, the scene of past criminal activity, coupled with the stuffing of a brown paper bag in his pants and his flight upon observing undercover officers watching him, did not provide a sufficient basis for a finding of reasonable suspicion. The Court stated that the defendant‘s attempt to conceal the brown paper bag, by itself, did not provide grounds for a stop. The Court reasoned that the bag could have contained one of a number of lawful items or contraband.
It is precisely because the officers could only speculate about the contents of the bag that they had no reasonable or articulable basis to conclude what its contents were.
Because the police could only guess about what defendant was seeking to hide, their speculation did not provide a particularized suspicion of possessory wrongdoing, but only a generalized one. [Shabaz at 61.]
Similarly, the police, in the case at bar, could only
We have held that one circumstance giving rise to reasonable suspicion is evasive conduct. As the court of appeals and the defendant correctly point out, merely being in a high-crime area will not justify a stop. But defendant‘s evasive conduct after eye contact with police, combined with his departure from a building with a history of drug activity, justified police in reasonably suspecting criminal activity. [Citations omitted.]
According to the arresting officers, the only overt act by the defendants providing the basis for their detention was the defendants’ brief visit to the residence. The defendants made no gestures indicative of criminal conduct or movements that could suggest an attempt to conceal contraband. Once in their vehicle the defendants did not drive erratically or otherwise fail to comply with the motor vehicle code. In short, the police knew nothing in particular about the defendants except that they briefly visited a residence suspected of drug activity. When reviewing the constitutionality of an alleged “Terry” stop, the observed acts, under the totality of the circumstances
must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. [Emphasis added.] Chief Justice Warren, speaking for the Court in Terry v Ohio, supra, said that “[t]his demand for specificity in the information upon which police action is predicated is the central teaching of this Court‘s Fourth Amendment jurisprudence.” [United States v Cortez, 449 US 411, 418; 101 S Ct 690; 66 L Ed 2d 621 (1981). Emphasis in original.]
The facts observed by the Jackson police failed to provide a specific basis for concluding that the defendants were engaged, or were about to engage, in criminal activity. Because the police could not form a reasonable suspicion, the defendants’ privacy interest under the Fourth Amendment outweighs the governmental interest at stake.
“If, upon our review of the record, we do not possess a definite and firm conviction that the trial court made a mistake, we must affirm.” Burrell at 449. A review of the record supports the trial court‘s conclusion that the police lacked reasonable suspicion, rendering the detainment of the defendants unconstitutional. Accordingly, I would affirm the determination to suppress the evidence.
LEVIN, J., concurred with CAVANAGH, C.J.