People v. Oliver

184 184 464 Mich v PEOPLE OLIVER PEOPLE v TAYLOR 112341, Argued 13, (Calendar Docket Nos. 115064. December Nos. 7- 8). 12, Decided June 2001. Joey pleaded guilty Court, D. Oliver in the Jackson Circuit Edward J. Grant, J., conspiracy robbery, robbery, of to armed armed commit possession during felony. and of a firearm commission of He plea retaining right appeal his conditioned on to the denial of a pretrial validity regarding stop. motion of a The traffic Court of Appeals, P.J., JJ., and and remanded in an McDonald Sawyer, Neff, unpublished resentencing order to allow the defendant to move for (Docket 184741). resentencing, Appeals, No. After the Court P.J., JJ., and Michael and affirmed in an Kelly Markey, Widtbeck, unpublished opinion per (Docket 184741). Supreme curiam No. The granted appeal object standing Court leave to the issues of to a suppression argument, search and After evidence. oral the Court briefing. ordered the case resubmitted with further Mich 879 (2000). Taylor reargued. The case was consolidated with and The appeals. defendant Taylor Anthony by jury D. convicted in the Jackson Circuit conspiracy aiding robbery, abetting Court of to commit armed and robbery, possession during armed firearm of a commission of felony, carrying weapon. court, and a concealed The Edward J. Grant, J., pretrial regarding validity had denied a motion of a stop. Appeals, P.J., The traffic Court of and McDonald and Griffin, JJ., opinion unpublished per (Docket affirmed in an curiam White, 190480). Supreme No. Court consolidated with the case Oliver. appeals. The defendant opinion by joined by In an Justice Taylor, Chief Justice Corrigan, Supreme and Justices and Court held: Young, Weaver, Markman, totality circumstances, Under the had the neces- sary suspicion justify stop. traffic suspicion 1. The reasonableness of an officer’s is determined totality case case the basis of the of all the facts and circum- determining reasonably, stances. In whether an officer acted due weight given, unparticularized suspi- must be not inchoate hunches, specific cions or but to the reasonable inferences that the experience. light Rea- facts in draw from the is entitled to officer judgments and be based on common-sense must sonable interpreted by as understood inferences about human behavior certainty officers, legal scholars. Scientific not law enforcement reasonably judges enforcement from or law be demanded cannot none exists. officers where supported stop case, under the total- the car was 2. In the of this by ity that its occu- the reasonable of the circumstances nearby robbery pants of a bank. might involved in the have been The time from the near the crime scene. car was encountered The robbery stop was report short. The car of the car was of the to the description occupied by comporting with the limited individuals tentatively of eliminated the route north had available. The officer information, escape on the basis of witness the bank as an route hypothesis and and had formed a reasonаble well-articulated apartment complex would and had fled to the secluded the robbers escape try getaway area on the basis of from the use a car to professional experience. familiarity The officer with the area and occupants possibly could be a of the additional inferred that one atypically looking occupants getaway avoided The each driver. leaving apartment was the officer’s car. The car the direction of the car, complex, being getaway a and it followed with it consistent robbery. driving the site of the circuitous route that avoided Affirmed. joined by dissenting, stated that Justice Justice Cavanagh, Kelly, stop. initiating the Because basis a hunch is an insufficient unparticu- stop effectuating acted on an inchoate or the officer unreasonably circumstances, and hunch, under the

larized he acted constitutionally stop invalid. the objective particularized and officer failed to articulate The suspect person the basis that would lead a reasonable activity. which of the factors about None of the vehicle of criminal defendants, as and none that he cited to the he testified were tied themselves, justify stop suspicious, the in this case. would in and of suspects possible fell within the universe of These defendants race, they gender, and minimal number the because of vicinity dispatch of were in the and because described the shortly robbery it time that had occurred. after the years experience when an officer’s of While consider courts reasonable, majority determining actions were whether his exper- given degree to an of deference that must overstates the that a An bald assertion deductions. officer’s ienced officer’s officer particular transaction to the like a criminal situation looks justify Where an enough intrusion. a Fourth Amendment is not 464 Mich 184 Opinion of the Court investigatory stop institutes an that is officer based on mere reasonably particularized facts, hunch rather than articulated given to deference must be the constitution lieu of officer’s years experience. illegal stop subject exclusionary fruits The of the to an are rule analysis. determining whether evidence should be excluded as poisonous tree, question whether, granting fruit estab- primary illegality, objection lishment evidence to which by exploitation illegality is made has come of that or instead sufficiently distinguishable primary purged means to be of the case, appears In this taint. the evidence obtained to have come directly by exploitation illegal stop. about The unlawful inva- occupied by illegal sion was an of a vehicle four men. subsequent occupants produced searches seizures of the sought suppressed. “fruits” to be M. Granholm, Attorney General, Thomas Jennifer Casey, L. General, Solicitor G. John Pros- McBain, ecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, people. for the Appellatе Douglas

State (by Defender W.Baker and Joseph C. Booker) defendant-appellant for Oliver.

Laurel Stuart-Fink for defendant-appellant Taylor. Curiae: Amicus Brown,

Elwood D. President, John O’Hair, Pros- Attorney, ecuting Timothy and A. Chief, Baughman, Research Training Appeals, and Jeffrey Camin- sky, Attorneys for Prosecuting Association of Michigan.

Taylor, J. These consolidated cases arise from the robbery same bank ensuing stop of car city of case, Jackson. each the defendant argues that incriminating evidence from the resulting stop of car suppressed should have been on the basis of Fourth exclusionary Amendment rule. We Opinion the Court supported stop of the car was that the conclude thus, did not violate the and, agree Accordingly, with the we Fourth Amendment. suppress the evidence of the lower courts refusal at issue.

I. AND PROCEDURAL HISTORY FACTS Shortly 1, 1994, December before noon on Republic robbery Bank at a was committed armed reported that two black in Jackson. It was branch perpetrators and that left the were the males the con- the issue at hand is bank on foot. Pivotal to County Deputy Roger Elder Jackson Sheriff duct of stopping motor vehicle contain- to his of the that led ing passengers. and two other both the defendants deputy Deputy over six- a sheriffs Elder had been years suppression hearing in teen at the time Deputy Notably, great Elder’s ser- bulk of Oliver. department road was with the vice with the sheriff’s patrol township police that, he was a division. Before years. In the for about two and a half to three officer police officer, Elder of his career as a course twenty directly investigating about involved bank robberies. in his that while he was Elder testified shortly

patrol rob- noon on the date of the before area) bery (along in the officers with other robbery dispatch general armed had that an heard Republic just at the comer of Bank occurred at dispatch in Jackson. This North and Wisner Streets suspects last were two black males that the advised heading from the bank. on foot northbound seen Deputy dispatch, who was Elder, When he heard the general area of south to the bank, of the headed north 464 Mich Opinion Court suspects. Deputy explained the bank to look for Elder suppression hearing at the in Oliver he that was not just looking suspects, for two my [bjecause experience years it’s in the a I’ve been always officer, getaway that there is a in almost a bank robbery, car, if getaway and there’s a at there’s least one it.[1] person with more driving In the course toward the area of the robbery, Deputy stopped armed a New Elder at York Carpet World store he where encountered two store employees standing smoking cigarettes. outside This Republic store was north located Bank. they any Elder asked running if them had seen black males they replied area, in the that had been outside for about minutes ten and had not seen anyone except children across the street at a school. Westbay Apartments complex

He next went thought apartment complex because he place would have been an excellent for someone on good place getaway foot to run to hide a vehi- Westbay Apartments cle. The located the cor- ner of North and Streets, Brown which was the first major along intersection North Street to the west of Republic Bank, and this area was secluded. The Westbay Apartments complex quarter within Republic mile of the Bank. turning

When Elder was into an entrance to Westbay Apartments complex, green saw 1 Deputy suppression hearing Taylor Elder likewise testified at suspects: looking that he was for at least three Well, my experience past usually it’s been there nearby, robbery attempt, getaway vehicle,

someone with a so I people. would look least three Opinion of Court occupants heading out male with four black Mercedes suppres- driveway. Deputy testified at the Elder by passing hearing “[a]s I was in Oliver that sion and Mercedes], I turned [the them subjects all four looked them, looked over any directly They not, them, look would ahead. Deputy said that he found this me.” Elder over at “very on the basis of his nineteen because, unusual” years experience basi- officer, “[w]ell as a always cops. people cally, at the When look because always you by, they look over and see who’s drive always you.”2 Deputy they just look at or— within or testified that he saw the Mercedes ten Elder dispatch regarding the bank fifteen minutes of the robbery passed eight he within six to feet of and that they passed Mercedes when each other at complex. apartment entrance to the apparently concluding that these individ- this, After Deputy possibly implicated robbery, in the uals were requested backup Elder over his radio because suspect Deputy spotted “possible had vehicle.” he patrol driving Elder, car, his then followed the Merce- proceeded Street, des as it west on North then south Street, Street, on Brown then east on Ganson finally driving route, south on Wisner Street. In this through Wisner the Mercedes went the intersection of It would have been a more direct and Ganson Streets. Westbay Apart- from the route to that intersection similarly suppression Taylor Deputy hearing Elder testified at the patrol occupant that no of the Mercedes looked over at his car. explained significant experience: this because in his Elder found by somebody, Inevitably, patrol when a car drives [sic] always you. Somebody in the vehicle will look at the look over at

patrol car. 464 Mich 184 Opinion of the Court simply gone ments for the Mercedes to have east on and then south on North Street turned Wisner Street. Notably, this more direct route would have taken the Republic Mercedes the location of the Bank that backup patrol was robbed this case. When cars stopped arrived, Elder Mercedes on Wis- ner Street.

Eventually, deputy patted when sheriff’s another passengers down Banks, Casual one of the in the large money, Mercedes, he found a amount of includ- money wrapper ing a bundle of with a bank it, and Michigan a identification for defendant Oliver. Lаter police money at the station, a wad of was found on passenger Oliver, defendant who was a in the Merce- Taylor des. Defendant was the driver and owner of the A Mercedes. search of the trunk of the Mercedes bag money containing at the station a located pistol. .32 caliber automatic Also, defendant Taylor eventually made statements to the against were later used him.

Notably, suppression hearing, at each the trial court testimony credited about the basic surrounding stop. facts the traffic Defendants do not challenge accept that determination, but rather by arguing basic facts related Elder, while justification legal that he nevertheless did not have consistent with the Fourth Amendment to effect the stop. traffic

In each of these consolidated cases, circuit respective court denied the defendant’s motions to suppress incriminating evidence discussed above. ‍​​‌​‌​​​‌​​​​​​‌‌​‌​​​​‌​‌‌‌‌‌‌‌‌​​‌​‌‌‌​​​​​​‌​‍contrary posi- The circuit court held, to the defense stop supported by tion, that the traffic reason- suspicion. able Opinion Court

Thereafter, defendant Oliver entered a conditional guilty plea conspiracy to commit armed robbery, 750.157a, robbeiy, pos- MCL armed MCL 750.529, session of a firearm during commission of fel- MCL ony, 750.227b. The condition was that defendant appeal Oliver be able to the trial court’s ruling suppression in his case. At a hearing jury trial, defen- Taylor dant guilty was found of the same crimes to conditionally pleaded which defendant Oliver guilty. Oliver, Appeals the Court of declined to address whether there was reasonable to effect the stop traffic on the basis of its conclusion that defen- Oliver, dant as a in the passenger car, did not have “standing to admission of challenge” the evidence at issue under the Fourth Amendment exclusionary panel rule.3 In Taylor, different of the Court of Appeals agreed with the trial court’s conclusion that stop supported the car was valid traffic suspicion. analysis

n. A suppression trial court’s factual at a findings hearing will not clearly be reversed unless are present erroneous. as in the However, case, appli- cation of constitutional standards searches regarding short, panel in Oliver concluded that defendant Oliver could challenge incriminating not in search of Banks which evidence was that, accordingly, challenge first found and he could not the location of incriminating ensuing parties other evidence as a result of the events. The argued scope respective in each case have the issue of the defen “standing challenge,” dants’ to or in other words the extent to which exclusionary avail themselves of the Fourth Amendment if rule there However, light were a violation of the Fourth Amendment. of our con supported by suspicion (and, clusion that the traffic reasonable thus, Amendment), did not violate the Fourth we need not address these “standing challenge” issues. 464 Mich 184

Opinion of the Court and seizures essentially uncontested facts is not entitled to this level of deference. v LoCicero (After Remand), 453 Mich 496, 500-501; 556 NW2d 498 (1996).

In LoCicero, supra at 501-502, this Court summa- requirements rized the for the to make a valid investigatory stop based on reasonable suspicion con- sistently with protections: constitutional person

The brief following detention of a investigatory an stop is considered a reasonable seizure if the officer has a “reasonably suspicion” person articulable engag- that the is ing activity. in criminal The reasonableness of an officer’s suspicion is determined case case on the basis of the totality of all the facts and determining circumstances. “[I]n reasonably whether the officer acted circumstances, such weight given, due must be unpar- not to his inchoate and suspicion ‘hunch,’ specific ticularized or but to the reason- able inferences which he is entitled to draw from the facts light experience.” of his

Although this Court has indicated that fewer facts are suspicion needed to establish person reasonable when a moving in a house, vehicle than in a some minimum thresh- suspicion old of reasonable justify must be established to investigatory stop person whether a is in a vehicle or on the street. [Citations omitted.] Further, in determining whether the totality of the provide circumstances sup- port an investigatory stop, those circumstances must be viewed “as understood and interpreted by law en- forcement officers, not legal scholars . . . .” People v Nelson, 443 Mich 626, 632; 505 NW2d 266 (1993). Also, everyday sense and life experiences “[c]ommon predominate over uncompromising standards.” Id. at 635-636. 193

Opinion of the Court Terry 1, 30-31; v US 88 S Ct 20 L Ohio, 1868; 392 Supreme (1968), Ed 2d 889 the United States Court police held that in certain a circumstances officer may “stop” briefly person consistently detain a with the Fourth Amendment on the basis of reason- activity may able that criminal afoot. Notably, type by [Terry] “[t]he of intrusion authorized permit investigative stops has been extended to under various circumstances . . . .” Nelson at 631. Terry

The facts of are instructive. In that case, plain clothes detective Martin McFadden was assigned to downtown Cleveland. He observed two walking repeatedly stop- men a street, each of them ping to look in the same store Then, window. joined by a third man who talked with them briefly. Officer McFadden “testified that after observ- ing elaborately [the men’s] two casual and oft- repeated reconnaissance of the store window on suspected ‘casing Road, Huron he the two men of a job, stick-up,’ duty and that he considered it his aas investigate Terry, supra officer to further.” explained 6. Officer McFadden also that he feared the might gun. stopped men have a Officer McFadden three men and asked their names. When the men merely something” response, “mumbled Officer grabbed patted McFadden one them and down the clothing, finding gun. Eventually, outside of his conducted a similar search of another of the men and gun found a on him as well. following Terry discussion illustrates how appear may,

factors that in isolation innocent in com- provide police bination, officer with reasonable sus- picion justify investigative stop: Mich Opinion of the Court Terry, Chilton, had observed

“[Officer McFadden] go through acts, Katz perhaps series of each of them inno- itself, together cent in but which taken warranted further investigation. nothing There is standing unusual two men together comer, perhaps on a waiting street for someone. anything suspicious Nor is there people about in such cir- strolling up street, cumstances singly and down the or in pairs. windows, moreover, Store are made to be looked in. story quite where, But the here, different as two men period hover about a street time, comer for an extended apparent at the end of they which it becomes are not waiting anyone anything; or pace where these men alter- nately along route, pausing identical to stare in the same roughly times; store window completion where each immediately by this route is followed a conference between comer; joined the two men on the where are in one of these conferences a third man swiftly; who leaves finally where the two men rejoin follow the third and him a couple away. of blocks poor police It would have been work years’ indeed for an experience officer of 30 in the thievery detection of from neighborhood stores this same to have investigate failed to this behavior further.” [Id. 22-23.]

Similarly, in itself, certainly there is nothing suspi- cious about four men occupying a car that is leaving an apartment complex. However, there were other factors in this case provided Deputy Elder with the car. First, as explained Elder in his testimony at both suppression hearings, he deduced that the two perpetrators direct of the bank robbery likely would most have the assis- tance of a getaway driver. Also, it was reported that the bank was robbed two black males. Thus, the fact that the car had at least three occupants and at Opinion of the Court

least two black males4 indicated that its were consistent with the description suspected perpetrators.5 Of course, that in itself pro- would not particularized vide the suspicion necessary for a valid investigatory stop. See LoCicero, supra at 505.6

However, there were provided other factors that particularized basis for Deputy reasonably Elder to suspect that occupants of the Mercedes in which defendants present had been involved in the bank robbery. The spotted by car was Deputy Elder in Westbay Apartments complex within fifteen min- utes of report robbery. bank complex was located to the west of the bank along North Street and quarter within a mile of the bank. Deputy Elder had essentially first eliminated the direction north of the bank on the basis of two men outside the carpet store (which was north of the bank) telling 4 occupied by males, important point car was four black but the occupants that it had at least three and at least two of those were black If, example, males. for the car would have had two black male and two occupants, any way white male we do not see that would alter the reason suspicion analysis. able 5 certainly many ways We note that there are inap in which it would be propriate police performing to use race as a factor in their duties. However, person no police would contend that the should dis regard reported by eyewitnesses race where it has been that a crime has by person particular been Simply committed a put, of race or skin color. it would have made no sense in the case at hand for the to have pursued having non-black actually individuals as been the individuals who robbed Appeals the bank. As the United States Court of for the Sixth Cir Waldron, cuit 597, 6, observed in (CA 2000), United States v 206 F3d 604 that, determining approach sense dictates “[c]ommon when whom to as a suspect wrongdoing, police may legitimately of criminal officer consider descriptions perpetrator race as a factor if of the known to the officer include race.” 6 Thus, certainly agree we with the dissent that Elder would not “justified stopping every have been grouping of black males in the vicinity However, . . . .” opinion, Post at 213. as we set forth in this there that, combination, provided particularized were a number of factors suspicion for the traffic at issue. 464 Mich

Opinion of the Court anyone go had in that direc- him that not seen Westbay Apart- went to the tion. He testified that he complex because that would hаve been an ments apart- place getaway vehicle as the excellent hide complex provided area hide a car ment a secluded parking in contrast to the lots of businesses near leaving regard, fact that the was bank.7 this ‍​​‌​‌​​​‌​​​​​​‌‌​‌​​​​‌​‌‌‌‌‌‌‌‌​​‌​‌‌‌​​​​​​‌​‍apartment complex being was consistent with it attempting gen- getaway vehicle that was to leave the vicinity suspicion Dep- Thus, eral of the crime. reasonably Westbay uty Apart- Elder focused on by Deputy particu- ments. These deductions Elder are larly entitled to deference because totality analyzing circumstances, the law [i]n permitted, required, if not

enforcement officers are to con- patterns operation “the modes or sider of certain kinds data, of lawbreakers. From a trained officer draws [this] inferences and makes deductions —inferences and deduc- person.” [Nelson, might tions that well elude an untrained supra Cortez, 636, quoting United States v 411, 449 US 418; 690; (1981).] 101 S Ct 66 L 2d 621 Ed top this, On of the Mercedes drew atypical further on themselves their con- declining Dep- duct in each to look in the direction of uty passing patrol deputy marked car. As the explained, experience in his officer, as a this highly unusual. There is no basis to conclude this inaccurate, observation was and, accord- suppression Oliver, Deputy explained hearing At the Elder that a getaway by” vehicle was more often “in a hidden area somewhere close robbery building. Taylor, the site of a than in front of the In Elder suppression “experience hеaring testified at the that his tells me that Wendy’s put” getaway parking wouldn’t have car in the lot of a restau apparently (which among rant or laundromat the businesses near opposed place. bank) as to a more secluded Opinion of the Court experience ingly, we defer to his substantial as a law supra LoCicero, officer. at 501-502. enforcement support finding For conduct to of a reasonable suspicion, be, it need as we are instructed Supreme merely Court, Indeed, United States evasive. recently Supreme quite the United States Court has pertinent “nervous, stated that evasive behavior is a suspicion.” determining factor in reasonable Illinois v Wardlow, 119, 124; 673; 528 US 120 S Ct 145 L Ed 2d (2000). standing Wardlow, In the defendant was opaque building holding bag next to a an in an area of heavy Chicago trafficking. known for narcotics When a four-car caravan area, cars8 entered the the defendant looked in the direction of the officers eventually running through gangway fled, and alley. Ultimately, police stopped officers the defen- patdown weapons, dant and conducted search for discovering gun bag. in the The United States Supreme suspi- Court held that there was reasonable support investigatory light cion to this of presence heavy defendant’s in an area of narcotics coupled unprovoked trafficking, flight with his when police. making In determination, noticed the this stated; the Wardlow Court reviewing propriety conduct, of an officer’s courts empirical dealing do not have available studies with infer- suspicious behavior, ences drawn from and we cannot rea- sonably certainty judges demand scientific from lawor Thus, enforcement officers where none exists. the determi- nation of must based on common- judgments sense inferences about human behavior. [Id. at 124-125.1 investigate drug in an transac cars were involved effort to

tions the area 184 198 464 Mich Opinion of the Court Further, Orozco, 578, in United States v 191 F3d 1999), (CA 5, the Fifth Circuit United States Court of approved Appeals consideration of the “overall behav- including “the avoidance of driver,” ior of the vehicle eye might as one that be considered in contact” factor determining was reasonable whether there support stop. Likewise, a traffic we see no reason occupants that the overall behavior of all of a seeming looking to avoid in the direction of a marked police sup- car cannot be considered as one factor in suspicion. port finding Accordingly, of a of reasonable Deputy rely that we believe Elder was entitled to perception occupants his it was unusual that the looking Mercedes seemed to avoid in his direc- Wardlow, have, tion. As in we do not nor have we any empirical offered, been the benefit of studies Deputy experience-based rebutting conclusion people ordinarily regarding how react to marked cars. Elder’s observation that it was suspicious occupants for all four of a car not to look passing at his car dоes not strike us as unrea- comport Indeed, sonable. it well with “common- Accordingly, sense.” we consider Elder’s sus- picion by aroused of the car not look- patrol ing properly at his car to be one factor that is together considered, with other factors such as the apartment complex secluded nature of the and that apartments quarter were located within a mile of supporting finding suspi- bank, as of reasonable cion in this case.9 pre-Wardlow by We note that defendants have cited some decisions

panels Appeals indicating of the United States Circuit Courts of eye properly sup avoidance of contact is not considered as a factor port finding suspicion. However, regard aof of reasonable we these Opinion of the Court

In addition to the the route followed foregoing, stop provides before the another the Mercedes traffic support suspi- factor in existence took a cion. The Mercedes circuitous route intersection of Ganson and Streets Wisner before the actually particularly traffic effected.10 This is suspicious because it avoiding driving involved bank that had been robbed. The most direct route to Westbay Apartments that intersection from would have been east on North and Street then south on Wisner Street to the This intersection. would have the past taken car the bank the at intersection of and Instead, North Wisner Streets. the car took a by route longer proceeding Street, west on North then Street, finally south on Brown east on Ganson reaching Street before of intersection Ganson and Wisner Streets. pre-Wardlow light recognition of decisions to be little in of the in value provid- supporting (or Wardlow that evasive conduct can abe factor even ing primary stop. for) investigatory Moreover, basis we note that appellate apparent federal there are decisions that consider an avoidance eye support finding suspi- of as in contact one factor of a of reasonable See, e.g., 860, 7, Brown, (CA 1999) cion. (considering United v States 188 F3d 864-865 “unusually demeanor, including the defendant’s nervous his eye make as failure to contact” one of distinct articulable “several bases” suspicion); Robinson, 663, for reasonable United States v 119 F3d 667 1997) (CA 8, (concluding appeared that “the fact that ner- defendant] [the eye provided “[fjurther the fact that would vous and not make contact”

justification” finding suspicion). course, of Of reasonable none of suggest passes by patrol this is that mere fact car that a car with- any occupants looking justify patrol out its of would a traffic merely apparent stop, eye but such avoidance contact can be one that, together others, may stop. support factor with 10 say they impossible dissent “it states that that the ‘route’ ‘circuitous,’ they yet chose was when not [the had car] specified most, stopped. traveled to destination At can when we con longer necessary clude that chose to drive a than distance between points.” perceive Post at 221. We do two not distinction that the dis plain regard. in sent would draw this It seems to us that a would route precisely driving longer necessary. because it than “circuitous” involved 464 Mich

Opinion the Court by recognize the Merce- the route followed We testimony in mentioned des was not by subjectively evidently relied on was not stop. police effecting Nevertheless, the traffic robbery and the route followed of the bank location obviously by known to the facts the Mercedes stop Thus, these the traffic occurred. before determining appropriately considered facts are support suspicion to was reasonable whether there unanimously stop as this Court because, the traffic People Arterberry, recognized 384; 381, v 431 Mich (1988): 429 NW2d 574 not have the state of mind fact that the officer does [T]he provide hypothecated

which is the reasons which justification legal invalidate for the officer’s action does not long circumstances, as the viewed the action taken as v Scott United objectively, justify [Quoting that action. States, 128, 138; 1717; S Ct 56 L Ed 2d 168 436 US (1978).]

Accordingly, objective to the facts known stop be con- officers who effected the traffic should justified determining whether the sidered in suspicion regardless whether the subjectively officers relied on those facts. totality that,

We under the of the circum- conclude Deputy investigatory of the car stances, supported by suspicion reasonable that at issue was occupants in of that car have been involved the robbery Republic for that of the Bank. The reasons deputy (1) include: the encountered the conclusion apartment given scene, car near the crime complex that the quarter (2) bank; within a mile of the was short, the time was with at most fifteen minutes report robbery elapsing the to from the time of the of Opinion the Court of stop; occupied (3) the traffic the was individu- car comported description als who with the limited disposal; (4) Deputy had at the officer his Elder had tentatively eliminated the direction north bank escape as an route of on the basis the information he carpet employees; (5) the received from store the familiarity experience basis of his with the area and of nature, with crimes this formed Elder hypothesis reasonable and well-articulated that the Westbay Apartments; fled robbers had to the secluded (6) deputy reasonably hypothesized also on the experience basis of his that the robbers would use a try getaway escape (7) Dep- to area; car to from the uty reasonably Elder also inferred on basis of his experience probably get- that a at driver would away waiting (8) car robbers; for the actual occupants behavior of each of the four car’s seem- ing looking deputy’s to avoid in the direction of the atypical; (9) marked was the car was leav- ing apartment complex, which is consistent with getaway being it car whose attempting (10) area; leave the the car followed a driving circuitous route that avoided the site of the robbery.11 bank testimony indicates, As the dissent there was from Elder that stopped being overly

the car that was driven a manner that seemed compliance of with traffic laws. Post cautious because the driver’s strict place However, compliance 209. we no reliance whatsoever on this strict concluding suspicion with laws in the traffic that there was reasonable support present Indeed, stop. agree traffic we with dissent that it compliance would seem anomalous to consider the mere fact of strict being support finding with as the traffic laws factor activity. course, suggest of criminal we Of do not mean compliance support an act in with the law cannot be a factor in reason suspicion. able 464 Mich

Opinion of the Court may viewpoint best be summed of the dissent The up of zero case, “in the sum suspicion.” statement that this its suspicion suspicion Post is zero and zero proposi- of this the obvious merits at 219. Whatever any respectfully disagree rele- that it bears tion, we have dis- The that we vance to this case. factors supporting finding of reasonable cussed above as suspicion” suspicion in them- were not each of “zero acknowledged, while the as we have Rather, selves. degree suspicion in isola- from each of the factors may providing fallen short of tion particularized have

suspicion support present trаffic properly stop, not mean that these factors that does provide aggregate rea- in the would not considered suspicion support under the total- sonable ity validity of such cumu- of the circumstances. analysis, estab- discussed, as we have is well lative lished our law. always hypoth- possible, does, as the dissent

It is explanations the circumstances esize innocent stop. possibility preceding That alone can- the traffic proper efforts of law enforcement to not thwart the accepts protect “Terry the risk that onr communities. supra may stop people.” Wardlow, officers innocent people possibility Indeed, that innocent 126.12 briefly infrequently during detained will more than stops guiding investigatory valid is foreshadowed Supreme precedent, given States Court United stops for such the reasonable needed “requires considerably preponder- showing less than 12Indeed, Supreme pointed States Court out Wardlow the United accepts that risk in with more drastic “the Fourth Amendment connection probable police action; persons cause to believe arrested and detained on at 126. turn out to be innocent.” Id. have committed a crime Oliver v Opinion the Court evidence.” at 123. As anee of the Id. this Court ex- supra plained in Nelson, in 1993 at 632: apparent absence of innocent behavior has never [T]he suspicion requirement required been a for make an the to stop. Sokolow, 1, investigatory 9; v US United States 490 1581; question (1989). 104 L 109 S Ct Ed 2d 1 is not guilty. Very whether the conduct is or innocent often what appears guilt, be innocence fact to is in and what indeed entirely provide innocent in some circumstances the suspicion required investigatory basis for the to make an “ stop. Thus, ‘degree suspicion the focus is of on the that ” particular types to noncriminal Id. at attaches of acts.’ 10. Indeed, the facts of are instructive Nelson because police also involve of whom defendants the were suspicious reasonably because of the location of occupants in a car near a location where criminal activity was known Nelson, to have occurred. In police quantity bought informant of cocaine from a police was house that under After surveillance. about thirty occupants (uncon- minutes, a vehicle with three police informant) nected the with arrived at the only house and remained for four A minutes. detec- twenty-three years experience tive with testified that this behavior “was characteristic of ‘crack- Shortly buy.” leaving ‍​​‌​‌​​​‌​​​​​​‌‌​‌​​​​‌​‌‌‌‌‌‌‌‌​​‌​‌‌‌​​​​​​‌​‍house’ Id. at 629. after stopped investigate house, car in Nelson was to possible drug showing Court, This transaction. experience police deference to the detective, stop supported suspi- held that the reasonable noting that the in that cion, behavior case “was indic- drug trafficking.” ative of at 637-638.This Id. Court rejected argument of Nelson noted—and one of —the the trial defendant’s counsel in court there suspicion support the wаs no reasonable traffic Mich Opinion of the Court explanations because there were innocent birthday dropping off a card or the conduct such as say pointedly stopping hello. This Court stated that question that the “[t]he is not the number of scenarios suspicion imagination conjure, degree of can but the seemingly legal Id. at 635. conferred on conduct.” Accordingly, the existence ability present negated imag- case is not possible explanations presence ine innocent for the apartment complex the Mercedes at the and the occupants. actions of the car’s present stopped in the sum, case people in a contained least three situation looking where the for two bank robbers expecting getaway to find a as well. driver Because the car had at least two black male occu- pants, occupants descrip- its were consistent with the tion of the After bank robbers. Elder elimi- nated the north of the bank, direction the car was leaving found a secluded area close to the bank quarter (indeed, mile) logical within a a was hid- place.13 occupants ing The of the car drew further expressly stated, suggest While not the dissent seems to one of provided by Deputy Westbay Apart investigating the reasons Elder for complex may post ments have been that knew “he blacks lived there.” See However, Deputy at 212-213. Elder never indicated that he went to the Westbay complex personal exрerience because “he knew from that black Instead, regard individuals lived there.” Post at 213. his comments in this responses specific questions concerning were isolated to what he had complex previous observed while he had been at the on a occasion look ing apartment Accordingly, Deputy testimony for an with Ms wife. Westbay Apartments go does not reflect that he decided to to the because may merely there, of the number of African-Americans that have lived but happened that he to know from an unrelated event that African-Ameri cans lived there. any event, we, course, agree with the dissent that there would be reasonably suspicious merely nothing being about African-Americans apartment complex. Rather, addressed, particular as we have it is the Dissenting Opinion by Cavanagh, J. suspicion by appearing on themselves to a trained by declining law enforcement officer to be evasive to look passed the direction of his marked car as it Finally, close the car. the car followed a circuitous route that avoided the site of the bank rob- bery stop. before the traffic While one or more of these factors in isolation not have constituted suspicion stop reasonable car, under the total- ity suspi- of the circumstances, there was reasonable justify stop cion to the traffic in this case.

m. conclusion totality We conclude that, under the of the circum- necessaiy stances, the had the reasonаble sus- picion justify stop underlying the traffic these con- Accordingly, judgment solidated cases. we affirm the Appeals of the Court of in each case.14 C.J., and and Corrigan, Weaver, Young, Markman, JJ., concurred with J. Taylor, primary (dissenting). issue in this Cavanagh, stop case is whether existed to occupants. and search a vehicle and its four black I (1) effectuating would hold that the officer particularized objective failed to articulate a basis person suspect that would lead a reasonable occupants activity, (2) of the vehicle of criminal surrounding stopped circumstances of the car that provided present stop. this case that for the traffic Taylor arguments We note that defendant makes in his brief on appeal regarding validity stop issues other than the of the of the Mercedes scope standing challenge and the of his the evidence obtained as a stop. beyond scope Tay result of that These issues are of defendant application appeal previously granted by lor’s for leave to that was this Accordingly, Court. we decline to review those issues. 464 Mich 184 Dissenting Opinion by Cavanagh, J. stop subject illegal evidence derived from the analysis exclusionary under the rule.

i implicates The issue in this case the Search and Seizure Clause of the Fourth Amendment of the protects Constitution,1 United States which individu- against als unreasonable searches and seizures con- by governmental ducted actors. Whren v United States, 806, 517 US 809-810;116 S Ct 135 L Ed 1769; (1996). 2d 89 aWhen officer detаins, even tem- porarily, vehicle, of a have been meaning “seized” within the of the Fourth Amend- Prouse, ment. Delaware v 648, 683; 440 US 99 S Ct (1979). question 1391; 59 L Ed 2d 660 Thus, the becomes whether the seizure of the defendants was constitutionally reasonable. Supreme spoken

Our United States Court has requisite applied involving test to be in cases investigatory stop of criminal defendants. The Court subject has held “[a]n automobile is thus imperative the constitutional that it not be ‘unreason- able’ under the circumstances.” Whren at 810. In United States v Cortez, 411, 449 US 418; 101 S Ct 690; (1981), Supreme L 66 Ed 2d 621 the United States totality Court stated that the of the circumstances inquiry, Terry stop, in the event of a should take into picture. account the whole On the basis of that whole picture, detaining particular- officers must have a objective suspecting ized and basis for criminal activ- right people persons, houses, to be secure in their papers, effects, against unreasonable searches and seizures shall not be violated .... People v Oliver 207 Dissenting Opinion by Cavanagh, J. ity by particular person stopped. In words, the other justify seizure, the the to officer must act more unparticularized suspicion than an “inchoate and or Terry Ohio, 27; hunch.” v 392 US S L 1, 1868; 88 Ct 20 (1968). Ed 2d 889 Instead, the officer must have at particularized suspicion, objec- least “a based on an person stopped tive the observation, been, is, has engaged wrongdoing.” or is about be in criminal 424 Shabaz, 59; v Mich 378 NW2d 451 42, (1985). the of

When seizure defendant unreasonable comport Terry, it because does not with evidence may flowing supрressed from that seizure as fruit poisonous Wong of the tree. v States, Sun United (1963); 407; US 83 S Ct 9 L 471; Ed 2d 441 Shabaz, supra. Wong Pursuant “the of Sun, fruits illegal officers’ action are not to be admitted as evi- intervening independent dence unless an act free primary purge will taint of the unlawful invasion.” Shabaz at 66.

h In order to determine whether the in this case passes required constitutional are muster, we to con- underlying sider facts as as well the deductions predicated upon facts and to make a determina- detaining tion of whether officer had a reason- particularized able, articulable, and basis detain- ing job majority the defendants. The does a fair objective detailing underlying facts this case and recapping testimony. Elder’s However, the majority occasionally commingles Dep- with facts uty Elder’s deductions with its own deductions, key a few omits facts that I find to the case. This 464 Mich Cavanagh, Opinion by

Dissenting underly- disentangled opinion version of the offers separate giv- ing the circumstances events in order suspicions ing from the conclu- rise to basis those factors. I find on the sions drew especially light crucial, distinction to be subjective majority’s officer’s that an conclusions given special deference, and that deductions must be into a not the officer factor factors articulated objectively rea- whether a was determination of majority, I the sonable. Given the tests offered parts distinguish believe that the Court must which testimony Deputy to facts and which amount particularized compose pаrts the officer’s articulated suspicion. In addition, the Court should recognize which factors were extrinsic to the officer’s stop. effectuating articulated basis for the testimony Deputy Elder’s in this case revealed the following Taylor. facts common to both Oliver and Deputy dispatch2 (1) Elder overheard a that an armed robbery just Republic occurred at the Bank and had suspects that two black male heading had been last seen spoke (2) Deputy foot; north on Elder to two Carpet World, men York was outside a New which they located bank, north of the who indicated that had some seen no one but children across the street during preceding Deputy (3) ten minutes; Elder Westbay Apartments, go then decided to which approximately quarter were located one mile west upon Deputy (4) bank; Elder came four black exiting Westbay Apart- in a men car as complex, approximately ments ten to fifteen minutes 2 Oliver, Deputy dispatch In testified Elder that he received police agencies. Taylor, broadcast to all he testified that he did not dispatch directly, receive the but heard some radio traffic. v Oliver Dissenting Opinion by Cavanagh, dispatch; Deputy hearing (5) pre- after Elder had viously Westbay observed blacks lived at the Apartments complex; (6) according Deputy Elder, occupants did the car’s not look the direction of patrol passed eight his car when he within six to feet Deputy (7) began them; back, Elder doubled fol- lowing back-up3; (8) car, and radioed for whilе by Deputy being Elder, followed the driver of the car cautiously obeyed (9) drove all laws; traffic while being followed Elder, car drove west street, one then south, turned then east, turned again being stopped.4 and then turned south before objective From facts, these Elder testified experience that his as a officer led him to following: (1) Westbay Apart- deduce that the complex place ments would be an excellent for some- getaway one run on foot or to hide vehicle (2) it secluded, because was close and that if there getaway likely vehicle, were a it would have at least person usually three because an additional getaway very (3) vehicle, drives the that it was unu- people patrol sual for not to look at an or officer by, by driving (4) speed driving and that limit, using complete signals, making stops, turn driver of seemed to be overcautious. The majority adds one additional deduction-that by acting suspiciously driving defendants were by being Deputy “circuitous” route while tailed Elder. point up. Taylor, It what is unclear at the officer radioed for back In point began he it testified was he turned around and to follow the Oliver, already following In defendants. he indicated it was while he was them. 4 Oliver, Deputy additionally Elder testified about that fact encountering had seen no black males either in or foot vehicles before the defendants. 464 Mich

Dissenting Cavanagh, Opinion

m suspicion majority, According to the presented circumstances of all the sum total underlying analysis disagree. of the An I case. this Deрuty sus- Elder’s that reveals and deductions facts particularized, generalized, picions than rather were Deputy Elder failed reasonable. articulable, and particular defendants these that demonstrate support acting that would fashion engaged they about to or were had been wrongdoing. lacked reason- such, the As criminal unjustified. at 59. See Shabaz ableness and in which our to a situation down This case boils possible sus- the universe of fell within defendants they gender, pects min- race, were of the because dispatch and because in the described imal number shortly robbery vicinity after of the were in the important to It is it had occurred. the time that Deputy description original Elder that the remember four), (not north fled black men was that two heard car). (not (not west), While in a on foot justify testimony provided his reasons to class of sus- look for a broader that he should belief dispatch pects crucial to rec- described, it is than the by Deputy many ognize Elder factors cited justify stop majority upon by would and relied hap- any grouping who black males of two or more vicinity traveling pened of the rob- within the to be bery The law Elder’s search. time of at the stops permit Rather, random of automobiles. does not particularized stop only when make a officers 211 v Oliver by Dissenting Opinion Cavanagh, J. reasonably lead to facts them believe that the occu- pants transgressed have or will some transgress law.5 preliminary matter,

As a it should also be recog- majority nized that had to deduce that Westbay Apartments complex was a place reasonable Elder to look for a suspects precursor as to the requisite conclusion that he had the suspicion. Though Deputy Elder testified that had Westbay Apartments complex headed after rul- ing bank, out area north of the and also stated that a getaway probably would be in located a area, secluded his began search nonetheless north of the bank and he of inquiries made individuals stand- ing public parking Thus, lot. it is not entirely Westbay clear that Apartments complex was an any area more suspicious anywhere than else near or robbery, Elder would have been any suspicious less of black males park- crowded 5 Dep’t Police, 744, 747; As we Site stated in v State 443 Mich 506 of support (1993), history NW2d 209 “there is no in the constitutional of Michigan proposition police may engage for the that the in warrantless suspicionless purpose enforcing seizures automobiles for the criminal law . . . Similarly, People Roache, 215, 224-225; v as we warned in 237 Mich 211 (1927): NW 742 may judicial While we take notice of the fact that rum runners automobiles, bandits ride and use them to commit crimes escape, judicial and effect their we not also take notice of the passing

fact that there one or where bandit rum runner over a public highway, respectable, law-abiding there are thousands of cit- doing protection izens who are likewise? The afforded the con- persons regarded paramount any stitution to such must as right given verify to be officer to enable him his ungrounded being law is violated. granting, possible, officers, if such were to overzealous powers, performance of which would invade constitutional rights citizen, more would do to retard the enforcement of promote the law than to it. Mich

Dissenting Opinion Cavanagh, city ing with a a is mid-sized Further, lot. Jackson population to infer it seems reasonable 37,000; over places getaway a of to hide could be scores that there Additionally, ten to fifteen minutes had vehicle. passed Westbay Deputy the Elder arrived at before complex apartment Apartments. was Given that the only away bank, from the the amount a block located Deputy passed Elder of that between when time dispatch and the he encountered the time received beyond necessary time to well the the defendants was likely escape. passage less Thus, the of time made it robbery was a between the that there connection presence men. of black the four appropriate rely assuming Even it is that complex Westbay Apartments was deduction that place getaway a almost all car, a to hide testimony Deputy reveal the factors noted in Elder’s only he that he was in a location where that believed reasonably stopped suspects might ‍​​‌​‌​​​‌​​​​​​‌‌​‌​​​​‌​‌‌‌‌‌‌‌‌​​‌​‌‌‌​​​​​​‌​‍be he when ruled out near the defendants: he had the area Carpet quarter World, he was within a mile New York thought getaway might bank, of he be hid- thought walking was within there, den it distance blacks None bank, and he knew livеd there. Similarly, factors to our these were tied defendants. Deputy Elder also a few that tend to offered factors precluded that the were from show defendants not suspects: they black, male, were the list most, at and there were least two of them. At these by Deputy narrowed collective observations Elder possible suspects. None of these factors would list of specific While tie our defendants to the crime. only justified stopping in Elder have been black testimony vicinity, nothing males in the his indi- Dissenting Opinion by Cavanagh, justified stopping every grouping cates that he vicinity, of black males or these black males in particular. special weight given Dep- if

Even to the fact that uty apartment complex Elder believed the would be good place getaway to hide vehicle and least people crime, three would have been involved in the prosecution required Dep- was still to show that uty particular Elder believed these defendants engaged had been or were about in criminal activity. leading Instead, a review of the factors suspicions particular of these defen- opposed groups as dants, to his of black general, nothing men in amount to more than hunch they that in fact have been the robbers. For purposes, Fourth Amendment a hunch is an insuffi- initiating stop. Terry cient basis for See at 27. Deputy In Oliver, Elder testified that was famil- Westbay Apartments, iar with the that he knew from personal experience that black individuals there, lived and that it would not be unusual for black individuals coming Westbay Apartments to out of the com- plex. These factors undercut the reasonableness of Deputy suspicions any particular that black group apartment complex men or black atmen especially light were the bank robbers.6 This is true in absolutely descrip- of the fact that the officer had no logic, person searching As a matter of for a black an area where people likely any par there is a concentration of black it makes less you searching ticular black individual is the one unknown individual are you for than if were to see a black in an individual area where the black population is less concentrated. regard Deputy With to the fact Elder knew blacks lived at the Westbay Apartments, majority writes, 464 Mich Opinion Dissenting Cavanagh, J. Beyond the size, clothing. or age, suspects’ tion of men black group were defendants fact that the near the location in a car traveling together reasons for only two Elder offered Deputy robbery, over-cautiously fol- these defendants: stopping him look at they did not laws, and traffic lowed all has cho- majority wisely The by them. when he drove the defen- the fact that emphasis on place sen not to being while fol- traffic laws all obeying were dants cross-examination, Dep- On officer. by police lowed persons not unusual for that it is uty Elder conceded cautiously. police car to drive by marked followed way car was found that The trial also judge citizen would unusual, аverage as an not driven was similarly. drive did not look at the defendants factor, that

The final complex, is apartment leaving the patrol car when by Deputy Elder that factor enunciated only other Westbay Deputy com- that he went to the never indicated Elder personal experience indi- plex that black knew from because “he Instead, [Deputy com- Elder’s] at 213. lived there.” Post viduals specific questions responses regard isolated ments this com- he had been at the concerning had observed while what he apartment looking his wife. plex previous for an with on a occasion 204, n 13.] [Ante opinion Elder went to the states that nowhere I note that this find there. Westbay Apartments believed that he would blacks because he that he opinion simply points Elder himself testified out that leav- not unusual to see blacks an area where it was knew that he was in Thus, testimony complex. of the fact apartment is indicative ing his the inherently suspicious fact that our defen- nothing about the that there was Westbay Apartments, Deputy Elder knew leaving and that dants were the Westbay exiting suspicious nothing black individuals about there was Apartments. testimony light entirely came to Elder’s whether It is irrelevant by posed he offered response questions counsel or whether defense to testimony voluntarily. sheds that his The fact remains information the light particularized. suspicions and were reasonable whether his 215 Oliver v by Dissenting Opinion Cavanagh, particular these defen- separate tends to potentiаlly With populace of black men. general dants from the majority Dep- observation, to this defers to regard officer, as a law enforcement uty experience “evasive” that courts consider and concludes reason- whether determining behavior as a factor majority I that suspicion exists. believe able I solitary factor, on this places weight too much analysis in several majority’s with the disagree regards. decisively I the law somehow

First, disagree failure to look at proposition supports specific pri- factor. The police officer constitutes by majority is mary upon distinguisha- case relied Wardlow, 528 US majority cites Illinois v ble. L Ed 2d 570 119, 124; 673; (2000), 120 S Ct 145 perti- evasive behavior is a proposition that, “nervous, suspicion.” determining nent factor a defendant However, Ante at 197. Wardlow involved officers. Failure to police who fled at the sight are reacting fleeing react officers is very even behaviors. Wardlow different, opposite, Thus, majority, unlike the see way controlling. in no deci- 198-199, 9, pre-Wardlow Ante at n I believe that than value, persuasive are of and are more great sions majority.7 authority limited offered 7 Cruz-Tapia, 1275, 10, (CA See United States v Dela 162 F3d 1280 eye susceptible varying 1998) (the or lack of contact so innocent suspi interpretations and does not afford a reasonable as to be innocuous Garcia-Camacho, 244, United v stop); 246-247 States for a 53 F3d cion straight (CA 9, 1995) (tíre of a vehicle stared ahead fact that passing weigh in the balance оf whether when a marked car cannot Halls, States v stop); United a reasonable for a there existed troop 8, eye 275, (CA (merely avoiding 1994) contact with state F3d driving give rise to a reasonable inference ers while vehicle fails Pavelski, 485, 7, 1986) (CA v illegal activity); United States 789 F2d 216 464 Mich 184 Dissenting Opinion by Cavanagh, J. while I

Second, agree that courts consider an years experience officer’s of when determining reasonable, majority his whether actions were degree overstates the of deference that must be given experienced police to an officer’s deductions. The majority part People relies in v large Nelson, 443 626; Mich 505 NW2d 266 (1993). Though Nelson did that a certain of recognize degree deference should given be to officers who draw inferences based on experiences with occurring crimes under similar cir by similarly cumstances or committed situated defen dants, see id. at an 636, officer’s bald assertion that a particular situation looks like a criminal transaction to the officer justify is not a enough Fourth Amendment People intrusion. v (After LoCicero Remand), 496, 453 Mich 506; 556 NW2d 498 (1996). an Where officer institutes an investigatory stop that is based on a reasonably mere hunch rather than particularized articulated facts, deference must to the given constitution lieu of the officer’s ce.8 years experien (the eye fact that four men in a car failed to make contact with an officer justify investigatory stop); Pacheco, 84, cannot United States v 617 F2d 5, (CA 1980) (in assessing suspicion stopping vehicle, for eye weight whatsoever”); “the avoidance contact can have no United Lamas, 547, (CA 5, 1979) (“testimony v States 608 F2d 549-550 that the occupants eye they passed” of a car avoided contact with as [the officer] weigh precarious posi- cannot in the balance whatsoever “because of the highways placed eye tion travelers on our avoiding nation’s would be in if suspicious reaction”). contact with an officer could be considered majority places great Nelson, stating reliance on that “the facts of Nelson are instructive because also involve defendants of whom the police reasonably suspicious because of the location of activity a car near a location where criminal was known to have particular occurred.” Ante at 203. Nelson involved factors that were more present Nelson, ized than the factors at issue in the case. In particular activity were on surveillance at a location where criminal had previously suspected again. type occurred and was to occur The exact Dissenting Opinion by Cavanagh, if Deputy

Even Elder’s conclusion that it is unusual people looking given great avoid weight majority deal of as the his suggests, observa- tion is insufficient in and of itself to create reasonable majority correctly points this case. The that it does “the suggest out not mere that a fact passes by patrol any car without of its occu- pants looking patrol justify at the car would a traffic stop, merely eye such apparent but that of avoidance can be that, together others, contact one factor with stop.” Ante at support 199, n 9. sum, by Deputy In the cited in sup- factors Elder of his port to the defendants do not decision suspicion. amount regard, this I with majority the that agree the fact that men are four an apartment not leaving complex suspicious.9 is Sim- majority correctly the ilarly, concludes that the fact activity police watching the were for fact occurred before time that the stopped police 503, the the defendants. In at LoCicero this Court noted observation Nelson’s that watching

the detective the house testified “that on the of his basis twenty-three years experience, the defendant’s behavior char- was buy: visit, acteristic of a ‘a ‘crack-house’ short in/out the back copy’ car and down the road.’ It was described as ‘carbon of what had occurred two weeks earlier.” The Court concluded that this knowledge, coupled police with the other information the had regarding house, jus- the the basis formed for reasonable tifying inquiry. further police these Contrast factors with what in our case: occurred knew area, they watching that a crime occurred somewhere in the but were not repeated; suspects likely for the crime be that knew would general area, they where; be in the did but not know and the did copy not observe behavior that amounted to a of carbon behavior previously observing had seen while robbers. 9 itself, certainly suspicious nothing there is about four [I]n men occupying apartment complex. leaving a car that an at [Ante Mich 184 Dissenting Opinion Cavanagh, J. description possi within the that the defendants fit particularized reasonable suspects ble did not create particularly find suspicion.10 Additionally, nothing I the defendants were suspicious about the fact Westbay Apartments at the time Elder leaving especially patrolling area, light testimony Elder’s own it was not unusual for complex. I leaving Similarly, black men to be suspicious find about the fact that nothing the defen- 10 majority The states: occupants fact that the had at least three and at least [T]he black males

two indicated that its were consistent with description suspected perpetrators. course, Of that in provide particularized suspicion necessary itself would not stop. investigatory a valid [Ante 194-195.] 11During argument Court, attorney oral before this even the for the people recognized problem that a Fourth Amendment could arise when simply goes high officer to an area near a crime scene where a concentra- people description fitting might found, tion of and then relies on something eye support stop. as minimal as the avoidance contact following discourse occurred: say robbery reported Court: So let’s to have been com- presume gray mitted a senior citizen with hair. I if Elder drove nearby person ato retirement center and waited for the first com- ing gray straight ahead, out that had hair in the and looked car stop could him. Attorney: Boy, I’d have trouble with that one because in the first

place, hair, statistically gray senior citizens with there are a lot of them more than .... Court: Than black males? Attorney: yes. area, In the Jackson oh If the facts of this had really Detroit, big personally occurred East I’d be in trouble. I suspicion your would not find reasonable case .... people’s attorney explain inquiry The looking then went on to that the entails totality circumstances, limiting description at the and that a population support finding that cuts out over half the would add for a suspicion. attorney recognize Deputy reasonable What the failed to is that description Elder himself admitted that he was not in an area where the Instead, was limited. he was in an area where it was not unusual to see black males. Dissenting Opinion by Cavanagh, obeying Again, dants were all traffic laws. I would point Deputy testimony out that even indi- Elder’s people cated that it is not unusual for to follow traffic laws when followed a marked car. Once clearly nonsuspicious singular these factors are sub- by Deputy tracted from list of offered the factors all Elder, we are left with is fact that the the defen- patrol dants did not look at Elder’s car. I majority agree with alone, the that taken the failure passing patrol justify to look at a car not would traf- stop.12 fic For reasons, these I hold that would stop predi- decision the defendants was not upon particularized cated reasonable, articulable, suspicion.

IV by Deputy suspi- None of the factors cited Elder as justify stop cious would the in this case in and of only way particularized suspicion Thus, itself. the by Deputy can be found facts offered Elder is unsuspicious to conclude collection of behav- by Deputy iors offered Elder somehow acted in tan- particularized suspicion. dem to create I would that, case, conclude in this the sum of zero suspicion suspicion.13 and zero is zero reaching majority opposite conclusion, turns to Terry, “stop original the facts of and frisk” case. suggest passes by of this is to that the mere fact that a car [N]one patrol any occupants looking patrol car without its at the justify 199, would .... n a traffic 9.] [Ante 13Though mEyority attempts otherwise, simple to assert fact mEyority opinion nothing particular remains that shows that our any suspicious any defendants more than other black men who leaving Westbay Apartments together. would have been Mich 184 464

Dissenting by Cavanagh, Opinion majority, “Terry According illustrates how fac- to the may, appear in combi- that in isolation innocent tors suspi- provide police officer with reasonable nation, stop justify investigative . . . Ante cion to majority recognize is However, what the fails to 193. particular Terry, the officer observed that in engaging in a series of behaviors that individuals characteristic of defendants officer believed to be robbery. present preparing case, In to commit a glance was at first of the defendants park- pulling them out of the the moment observed Westbay Apartments. ing at the While he have lot apartment heading a reason for toward the com- had plex, any officer made before encoun- deductions the suspects pertained general tering our defendants nothing to the determination of whether and added particular been or were about these defendants had required by wrongdoing engaged in as to be criminal majority Thus, I the Fourth Amendment. believe makes a fundamental error.

v It is clear that reasonable has not been proven upon by Dep- on the basis of the factors relied uty suspicious, Elder. The factors were not either individually collectively. majority However, or asserts that this Court should consider all the factors determining available to the whether the justified, regardless of whether the officers subjectively upon People Citing relied those facts. v Arterberry, (1988). NW2d 574 381, 384; 431 Mich particular, majority significance in the finds fact that the defendants drove “circuitous” route majority being disagree while followed. I with Dissenting Opinion by Cavanagh, significant objectively by level of is raised persons being by the fact that a car full of tailed police officer who doubled back to follow them choose not to drive the most direct route between points path along two to an unknown destination. suspicions apparently First of all, the officer’s aroused before he decided to follow the defendants, by as indicatеd his decision to double back and fol- impossible say low them. it Moreover, is that the they they “route” chose was “circuitous,” when had yet specified not traveled to a destination when stopped. At most, we can conclude that chose to ‍​​‌​‌​​​‌​​​​​​‌‌​‌​​​​‌​‌‌‌‌‌‌‌‌​​‌​‌‌‌​​​​​​‌​‍longer necessary drive distance than between two points. entirely plausible it Moreover, is that an inno- change hoping cent defendant course, would that the police officer would continue in another direction. possible Further, it is that a driver with a car full of passengers might be distracted conversation, and might travel in a direction he not otherwise. If we are objective to look at the circumstances of case, this regard subjective without to the officer’s state of only mind, then we must consider not factors indica- guilt, possible explana- tive of but also other innocent tions for the defendants’ behavior.

Objectivelyviewed, I would not consider the defen- particularly suspicious. Nothing dant’s behavior to be particular indicates that these defendants had or were engaged wrongdoing, about to be in cfiminal as is required stop for a Fourth Amendment to be valid. upon Shabaz at Rather, 59. the officer acted an incho- unparticularized ate or would, hunch. I therefore, hold that Elder’s actions were unreasonable stop under the circumstances, and that the was con- stitutionally Terry invalid. See 810; Whren at at 27. As 464 Mich by Dissenting Opinion Cavanagh, J. stop subject illegal an are fruits of the such, the analysis. exclusionary rule illegal in this case was unlawful invasion occupied four men. The subse- a vehicle occupants pro- quent of the and seizures searches suppressed. Wong sought Sun “fruits” to be duced the explained determining whether evidence that, poisonous tree, the excluded as fruit of the should be question granting establishment of the “whether, primary illegality, to which instant the evidence by exploitation objection is made come of that has sufficiently distinguisha- illegality or instead means primary purged taint.” Id. at 488. In ble to be appears case, the obtained to have this evidence directly by exploitation stop. illegal of the come about to admit the evidence The trial court’s decision stop flowing from was made without considera- exclusionary rule because the decision tion for the stop conclusion that the was based on erroneous Appeals The Court of affirmance sim- was reasonable. ilarly exclusionary inapplicable.14 to be found the rule stop, exclusionary illegality rule Given directly implicated. I would, therefore, would be remand for a determination of whether reverse and by any illegal legiti- came about the “fruit” of the purge distinguishable means that would mate, taint this unlawful seizure. J., Cavanagh, with

Kelly, concurred Appeals grounds The Court of affirmed on different than that offered However, Appeals trial court. the Court of conclusion that lawfully illegality stop. ignored the initial arrested defendant court, Appeals Thus, like the trial the Court of erred at the outset.

Case Details

Case Name: People v. Oliver

Court Name: Michigan Supreme Court

Date Published: Jun 12, 2001

Citation: 627 N.W.2d 297

Docket Number: Docket 112341, 115064

Court Abbreviation: Mich.