PEOPLE v SHABAZ
Docket No. 72567
Supreme Court of Michigan
Argued March 6, 1985. Decided December 4, 1985.
424 Mich 42
Docket No. 72567. Argued March 6, 1985 (Calendar No. 7).—Decided December 4, 1985.
Askia K. Shabaz was charged with carrying a concealed weapon. The Detroit Recorder‘s Court, Michael F. Sapala, J., granted the defendant‘s motion to suppress evidence of the weapon and dismissed the case. The Court of Appeals, D. F. WALSH, P.J., and BEASLEY and SULLIVAN, JJ., affirmed in an unpublished opinion per curiam (Docket No. 68266). The people appeal.
In an opinion by Justice RYAN, joined by Justices LEVIN, BRICKLEY, CAVANAGH, and RILEY, the Supreme Court held:
Suppression of evidence of the weapon was proper. The seizure of the defendant was unreasonable and, but for the illegal seizure, the weapon would not have been discovered. The circumstances surrounding the seizure of the defendant as they appeared to the police officers at the time of the seizure, considered in their totality, did not provide the requisite particularized suspicion of criminal activity based on objective observation sufficient to outweigh the defendant‘s privacy interests under the Fourth Amendment.
1. The Fourth Amendment does not provide a guarantee against all searches and seizures, but only against those that are unreasonable. The guarantee applies to all seizures of a person, including seizures involving only brief detention short of traditional arrest. A seizure of a person, to be valid, generally must involve probable cause to arrest. However, a valid investigatory stop may be made by the police with less than probable cause. Such a stop must be reasonable, i.e., it must be justified at its inception and must be reasonably related in
2. The approach of a person by the police in a public place to inquire whether the person is willing to answer questions, the actual questioning of the person, or the introduction in a criminal prosecution of the person‘s voluntary answers to such questions is not violative of the Fourth Amendment guarantee. Nor would an encounter with a properly identified officer, without more, amount to a seizure requiring some level of objective justification. The person approached, however, need not respond to the officer‘s questions or may decline to answer the questions, and may not be detained even momentarily without reasonable, objective grounds for doing so.
3. No full search of a person who is merely suspected of criminal activity or of the person‘s effects may be made without probable cause to arrest. Nor may the police seek to verify suspicions by means that approach the conditions of arrest. Probable cause to arrest requires facts and circumstances within an officer‘s knowledge that are sufficient to warrant a prudent person or one of reasonable caution to believe that the person suspected has committed, is committing, or is about to commit an offense. The fact that a person may seek to conceal the object of personal business, even in public, does not provide probable cause to arrest. The police may not conclude, merely because an object or a transaction is not openly displayed, that it is necessarily illegal.
4. In this case, the police did not properly identify themselves and approach the defendant for the purpose of questioning him. When he attempted to go on his way, he was pursued and seized by the officers. At the time the officers saw the defendant and began to chase him, they did not have probable cause to arrest him. The facts that the defendant was observed at night in a high-crime neighborhood leaving a building in which the officers previously had made arrests for concealed-weapons violations and narcotics offenses and that, after looking in the direction of the officers’ unmarked police vehicle, he attempted to conceal a paper bag under his vest afforded the officers no authority to confront the defendant or to require him to submit to an investigatory stop and interrogation because, on the basis of what they had observed, they had no articulable or particu-
5. The divestment by the defendant of a paper bag containing a revolver after being pursued by the police was not clearly abandonment. Whether or not abandonment was intended, it would not dissipate the taint flowing from the unreasonable conduct of the police. The pursuit of the defendant by the officers was an effective seizure. A seizure occurs when a reasonable person would believe that he is not free to leave.
Affirmed.
Justice BOYLE, joined by Chief Justice WILLIAMS, dissenting, stated that in this case there was no intrusion of protected interests sufficient to amount to a stop. While the reasonable belief of a person actually stopped by the police is relevant to whether a seizure has occurred, the threshold issue, whether a stop occurred, is one of law. On the record in this case, the pursuit of the defendant by the officers as a matter of law, was not a detention for investigation. Not even a forcible stop occurred before the defendant discarded the bag. Even if the pursuit was a stop, it is clear on the basis of the totality of the circumstances that the seizure was justified by a reasonable suspicion, founded on objective facts, that the defendant was involved in criminal activity. Because any seizure of the defendant was based on reasonable suspicion, the seizure of the bag was justified.
OPINION OF THE COURT
1. SEARCHES AND SEIZURES — ARREST — PROBABLE CAUSE.
No full search of a person who is merely suspected of criminal activity or of the person‘s effects may be made without probable cause to arrest; nor may the police seek to verify suspicions by means that approach the conditions of arrest; the fact that a person may seek to conceal the object of personal business, even in public, does not provide probable cause to arrest, and the police may not conclude, merely because an object or a transaction is not openly displayed, that it is necessarily illegal (
2. SEARCHES AND SEIZURES — EFFECTIVE SEIZURE.
A seizure occurs when a reasonable person would believe that he
3. SEARCHES AND SEIZURES — ARREST — PROBABLE CAUSE.
Observation by police officers of a person at night, in a high-crime neighborhood, leaving a building in which the officers previously had made arrests for concealed-weapons violations and narcotics offenses, an attempt by the person to conceal a paper bag he was carrying, and his flight at the approach of the officers’ unmarked police vehicle did not supply a particularized, reasoned, articulable basis to conclude that the person was, had been, or was about to be engaged in criminal activity so as to justify a temporary seizure of the person (
DISSENTING OPINION BY BOYLE, J.
4. SEARCHES AND SEIZURES — DETENTION FOR INVESTIGATION.
While the reasonable belief of a person actually stopped by the police is relevant to whether a seizure has occurred, the threshold issue whether a stop occurred is one of law; a pursuit by police running after a person in an attempt to stop the person to ascertain whether a weapon was being concealed was not, as a matter of law, a detention for investigation (
5. SEARCHES AND SEIZURES — REASONABLE SUSPICION.
Any seizure of a person resulting from a pursuit by experienced police officers after observing the person in a high-crime area, late at night, leaving a building in which the officers previously had made narcotics and concealed-weapons arrests, while attempting to conceal a paper bag, and after the person began to run upon seeing the officers was based on reasonable suspicion and justified the seizure of the bag (
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O‘Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Andrea L. Solak, Assistant Prosecuting Attorney, for the people.
Gerald M. Lorence for the defendant.
REFERENCES FOR POINTS IN HEADNOTES [1, 3, 5] Am Jur 2d, Searches and Seizures §§ 37 et seq. See the annotations in the ALR3d/4th Quick Index under Search and Seizure. [2] Am Jur 2d, Searches and Seizures §§ 1 et seq. See the annotations in the ALR3d/4th Quick Index under Search and Seizure. [4] Am Jur 2d, Searches and Seizures § 103. See the annotations in the ALR3d/4th Quick Index under Search and Seizure.
I
The facts available to us are taken from the preliminary examination and the evidentiary hearing, from the testimony of Officer Kenneth Surma, who was the only witness at both hearings.
On July 22, 1982, at approximately 9:00 P.M., Detroit Police Officers Surma, Scotsky, and Hayes were on patrol in an unmarked police vehicle in the area of Clairmount and Woodward Avenues in the City of Detroit. The officers were in plain clothes, and Officer Scotsky was driving.
The vehicle was proceeding westbound on Clair-
Surma observed defendant carrying a small brown paper bag, and walking east on Clairmount toward Woodward Avenue. At the time he observed defendant leaving the building, Surma was in the police vehicle approximately fifty feet from the defendant, and the police car was moving toward defendant. Defendant looked in Surma‘s direction and began “stuffing a paper bag like under his vest,” or “in his pants.” The driver, Officer Scotsky, slowed the vehicle, and the defendant and the scout car passed each other. When the officers’ vehicle had nearly come to a complete stop, defendant “took off running.” Surma testified: “We started slowing down to take a better look at what he was doing. As we were coming to a stop, he immediately started to run.”
Officer Scotsky put the car in reverse and backed the vehicle to the corner of Woodward and Clairmount. When the car was approximately ten to fifteen feet from defendant, Surma got out of the car and chased the defendant south on Woodward while Officer Hayes “backed up” Surma. Surma chased defendant a distance of about three storefronts, and observed defendant enter a doorway at 9037 Woodward. During the chase, Surma did not observe anything in defendant‘s hands. By the time Surma reached the doorway the defendant had entered, defendant was coming out. Surma grabbed defendant and, as the defendant tried to push away, Surma “tossed him towards Officer Hayes,” and Hayes subdued the defendant. While chasing the defendant, Hayes had pulled his service revolver and, when defendant and Hayes
Officer Surma confiscated the weapon, unloaded it, and asked the defendant if he had a permit. After receiving a negative reply from the defendant, Surma placed defendant under arrest for unlawfully carrying a concealed weapon. During the chase, none of the officers had identified themselves as police officers or given any order or command to the defendant.
Surma testified, at the preliminary examination, that he thought the defendant was “hiding something,” and that “I believed it to be either weapon [sic] or narcotics,” and that was the reason Officer Scotsky stopped the car. At the time Surma observed the defendant leave the apartment building on Clairmount, Surma did not have “any reports of a felony having been committed with the description of Mr. Shabaz,” and Surma could not recall ever having seen the defendant before. When asked, “when you grabbed him, you didn‘t have any additional information or sighting that he had committed a felony or was about to commit a felony, had you?” Officer Surma replied, “No, I did not.” Surma also acknowledged that there is a supermarket very close to the apartment building and that people “normally bring things out of the supermarket in the same type of bag.” In his eleven years on the police force, Officer Surma had made five to six arrests for concealed-weapons offenses, and approximately ten narcotics arrests at the Clairmount address. Surma testified that, at the intersection of Clairmount and Woodward, one
II
Following Officer Surma‘s testimony at the preliminary examination, the prosecutor moved the court to bind the defendant over to the Recorder‘s Court as charged. In opposition, defense counsel argued that “[t]here was no probable cause for the initial focus by the police officers“; that defendant was near King Cole‘s grocery market; that any number of people in that apartment building would have paper bags; that there were any number of reasons “th[at] person would place the paper bag under his vest“; and that this is a “clear case of post hoc probable cause, rationalizing their subsequent actions after pursuing this person on a chimeral [sic] suspicion.”
The prosecutor responded:
[N]ot everybody who has a paper bag tried [sic] to stuff it in their pants and tries to run away from people when they look at them. The officers did have a reasonable suspicion to at least stop the defendant at this point, and he continued to flee. Before he was even stopped, he discarded the bag. There‘s no search and seizure. It‘s just a situation that would justify a stop by a police officer and a pat down, which they didn‘t even get to that point. I don‘t believe that there‘s a search and seizure issue here, your Honor.
Defendant countered that the question is not one of search and seizure, but of probable cause for an arrest, and that there was no probable cause for an arrest.
In binding the defendant over for trial, the
At the evidentiary hearing in Recorder‘s Court, the prosecutor argued that Surma‘s actions were not unreasonable. He noted that the neighborhood in question was a high-crime area, that defendant was not coming out of a supermarket with a bag of groceries, and that an officer of eleven years “on the street knows pretty much whether—and as he indicated he thought either narcotics or a gun, from his experience and from the Court‘s, I think knowledge of Clairmount and Woodward would be a very reasonable assumption.”
The defendant relied on his “brief and memo” and did not offer argument. After observing that Officer Surma was a “totally credible witness,” the court stated it was relying on People v Terrell, 77 Mich App 676; 259 NW2d 187 (1977),3 and granted defendant‘s motion to suppress the evidence and dismissed the case.
Our examination of the record convinces us that the trial court correctly held that insufficient facts and circumstances existed to provide the police officers with a reasonable belief that criminal activity may have been in progress. Like the factual setting in Terrell, supra, defendant‘s surreptitious gestures may have aroused the officers’ general suspicions, but absent specific knowledge on the part of the officers, defendant‘s actions were insufficient to warrant an investigatory intrusion. The officers’ pursuit and stop of the defendant was not justified at its inception and, thus, was an unlawful invasion of defendant‘s Fourth Amendment rights.
Of particular import to our holding are the following factors: (1) The officers were not investigating a recently committed crime in the area of Clairmount and Woodward Avenues; (2) defendant was unknown to the officers and was not the subject of an arrest warrant; (3) defendant did not resemble an individual suspected of committing a crime; (4) defendant did not have any contraband or weapons visibly on his person; (5) the officers were not in uniform and were travelling in an unmarked police car; and (6) during their pursuit of defendant, the officers did not identify themselves as policemen.
We granted leave to appeal, 418 Mich 950 (1984).
III
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . . [
US Const, Am IV .]4
The Fourth Amendment is not a guarantee against all searches and seizures, but only against those that are unreasonable. United States v Sharpe, 470 US 675; 105 S Ct 1568; 84 L Ed 2d 605 (1985). The Fourth Amendment applies to all seizures of a person, including seizures that involve only a brief detention, short of traditional arrest. United States v Brignoni-Ponce, 422 US 873, 878; 95 S Ct 2574; 45 L Ed 2d 607 (1975); Davis v Mississippi, 394 US 721; 89 S Ct 1394; 22 L Ed 2d 676 (1969). Prior to Terry v Ohio, supra, any restraint on the person amounting to a seizure for the purposes of the Fourth Amendment was invalid unless justified by probable cause. Dunaway v New York, 442 US 200, 207-209; 99 S Ct 2248; 60 L Ed 2d 824 (1979). Terry created a limited exception to the probable cause requirement.
Given the parties’ agreement that the lawfulness of the seizure of the revolver in question “is governed by the ‘stop and frisk’ doctrine enunciated . . . in Terry,” we begin our analysis with a review of that case.
In Terry, a police officer observed the defendant, along with two other men, engaging in furtive behavior that the Supreme Court described as an “elaborately casual and oft-repeated reconnaissance of [a] store window” in downtown Cleveland which the arresting officer later characterized at
Terry‘s motion to suppress the evidence was denied, and the denial was affirmed by the Supreme Court of the United States. The Court found that the police conduct constituted a seizure within the meaning of the Fourth Amendment. “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” 392 US 16. The Court stated:
We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a “technical arrest” or a “full-blown search.” [392 US 19.]
The constitutional inquiry under Terry is whether the seizure and subsequent search are reasonable.
We must decide whether at that point it was reasonable for [the police officer] to have interfered with petitioner‘s personal security as he did. And in determining whether the seizure and search were “unreasonable” our inquiry is a dual one—whether the police officer‘s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified interference in the first place. [392 US 19-20.]
The Court concluded that there was narrowly
We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled to the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may be properly introduced in evidence against the person from whom they were taken. [392 US 30-31.]
The Court, in Terry, specifically declined to deal with the question of an “investigative seizure upon less than probable cause for purposes of ‘“detention” and/or interrogation,‘” 392 US 19, n 16, but, in subsequent cases, the Court has developed standards applicable to investigatory stops by police. This development is reviewed and summarized in United States v Cortez, 449 US 411, 417-418; 101 S Ct 690; 66 L Ed 2d 621 (1981):
An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. Brown v Texas, 443 US 47, 51 [99 S Ct 2637; 61 L Ed 2d 357] (1979); Delaware v Prouse, 440 US 648, 661 [99 S Ct 1391; 59 L Ed 2d 660] (1979); United States v Brignoni-Ponce, [422 US 873, 884; 95 S Ct 2574; 45 L Ed 2d 607 (1975)]; Adams v Williams, 407 US 143, 146-149 [92 S Ct 1921; 32 L Ed 2d 612] (1972); Terry v Ohio, supra, at 16-19.
Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like “articulable reasons” and “founded suspicion” are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances—the whole picture—must be taken into account. Based upon that whole picture, the detaining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. See, e.g., Brown v Texas, supra, at 51; United States v Brignoni-Ponce, supra, at 884.
The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person.
The 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.
IV
In an apparent effort to bring some organization out of the kaleidoscope of Fourth Amendment search and seizure cases decided by the Supreme Court, particularly concerning various kinds of police-citizen encounters, Justice White, in a plurality opinion in Florida v Royer, 460 US 491; 103 S Ct 1319; 75 L Ed 2d 229 (1983), divided such encounters into three tiers.5
The first tier consists of an officer asking a person questions in a public place.
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. See Dunaway v New York, [442 US 200, 210, n 12; 99 S Ct 2248; 60 L Ed 2d 824] (1979); Terry v Ohio, 392 US at 31, 32-33 (Harlan, J., concurring), id., at 34 (White, J., concurring). Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. United States v Mendenhall, 446 US 544, 555 [100 S Ct 1870; 64 L Ed 2d 497] (1980) (opinion of Stewart, J.). The person approached, however, need not answer any questions put to him; indeed, he may decline to listen to the questions at all and may go on his way. Terry v Ohio, 392 US at 32-33 (Harlan, J., concurring), id., at 34 (White, J., concurring). He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. United States v Mendenhall, supra, at 556 (opinion of Stewart, J.). If there is no detention—no seizure within the meaning of the Fourth Amendment—then no constitutional rights have been infringed. [460 US 497-498.]
The second tier of contact is the Terry stop described above. As a limited exception to the general rule that all restraints of the person must be justified by probable cause, Terry provides that certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime.
Terry and its progeny, nevertheless, created only limited exceptions to the general rule that seizures of the person require probable cause to arrest. Detentions may be “investigative” yet violative of the Fourth Amendment absent probable cause. In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects. Nor may the police
The third tier of contact is the arrest of a person based on probable cause.
This Court repeatedly has explained that “probable cause” to justify an arrest means facts and circumstances within the officer‘s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. [Michigan v DeFillippo, 443 US 31, 37; 99 S Ct 2627; 61 L Ed 2d 343 (1979).]
V
Plainly, the police encounter with defendant in this case was not at either the first or third tier of the Royer analysis. The officers did not approach Shabaz merely for the purpose of questioning him, after first identifying themselves as police officers,
We turn, therefore, to analyze the police encounter with Shabaz in this case according to the principles announced in Terry and the United States Supreme Court cases applying Terry. While factually there can be many justifications for a so-called “Terry stop,” see footnote 6, the criteria for a constitutionally valid limited intrusion upon a citizen‘s liberty, short of probable cause for arrest, are that the police must have a particularized suspicion, based on an objective observation, that the person stopped has been, is, or is about to be engaged in criminal wrongdoing. Brown v Texas, supra. As the Supreme Court stated in United States v Cortez, supra, the “articulable reasons” or “founded suspicion” or “particularized suspicion” that criminal activity is afoot must derive from the police officer‘s assessment of the “whole picture“—the totality of circumstances with which he is confronted.
The “whole picture” with which the officers were confronted in this case, on the evening in question, can only be described by reference to individualized facts:
The defendant was observed on the street at night in a high-crime neighborhood; - He was seen leaving an apartment building wherein the observing officers had previously made a number of arrests for concealed-weapons violations and narcotics offenses;
- After looking in the direction of the unmarked police vehicle, the defendant was observed “stuffing a [small] paper bag like under his vest” or “in his pants“; and
- When the officers slowed their vehicle to a stop, defendant “took off running.”
Whether all of the foregoing factors, considered in their totality, provided the officers with an articulable or particularized suspicion based on objective manifestations that Shabaz was involved in criminal wrongdoing can only be determined by evaluating the individual circumstances and determining whether collectively they are greater than the sum of their parts, and build to form the requisite objective basis for the particularized suspicion that criminal wrongdoing is afoot that would justify a Terry stop.
While the crime rate in a neighborhood may be a valid consideration to be taken into account when assessing reasonable suspicion, United States v Davis, 147 US App DC 400, 403; 458 F2d 819 (1972); United States v White, 211 US App DC 72; 655 F2d 1302 (1981), that alone would not establish the grounds for an investigatory stop. Brown v Texas, supra. Defendant‘s presence in a high-crime neighborhood does nothing to distinguish him from any number of other pedestrians in the area. It provides no particular reasonable basis for suspicion as to the activity of the defendant. The same must be said for his emergence from an apartment building known to the police to be the site of previous criminal activity. It cannot reasonably be concluded that everyone seen carrying a small
Similarly, defendant‘s effort to conceal the paper bag in his vest, by itself, did not afford grounds for a stop. There was no evidence that the size or shape of the bag suggested that it contained a weapon. It may have contained money, liquor, food, jewelry, or any number of small items one might lawfully carry in a small bag and wish to conceal from view while walking down a darkened street in a high-crime area. It might, on the other hand, have contained unlawful contraband or an illegally concealed weapon. 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.
[T]he sole fact that individuals may seek to conceal the object of their business from potentially prying eyes, even on the public sidewalk, does not grant the police the power to arrest them. While it is true that persons engaged in illegal transactions will desire to conceal those transactions, the desire for privacy in one‘s affairs is common among law-abiding persons as well. Thus, the police cannot conclude that merely because an object or a transaction is not openly displayed, it is necessarily illegal. [United States v Green, 216 US App DC 329, 333; 670 F2d 1148 (1981).]
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.
What then was added to the picture when the defendant began to run that converted the naked and generalized suspicion of the police officers into articulable grounds to conclude that criminal activity was afoot?
Defendant‘s flight at the approach of police did not, by itself, in the circumstances of this case, support a reasonable suspicion. Although it is uncontroverted that flight may be a factor to be considered in ascertaining whether there is reasonable suspicion to warrant a Terry stop, United States v Sharpe, supra; United States v Brignoni-Ponce, supra, flight alone is not a reliable indicator of guilt without other circumstances to make its import less ambiguous. United States v Green, supra, 216 US App DC 333; People v Tebedo, 81 Mich App 535; 265 NW2d 406 (1978).
Certainly it is reasonable to conclude that the defendant‘s flight away from the vehicle carrying the police officers might reasonably have heightened the officer‘s general suspicion that the defendant must have had something to hide and wished to avoid contact with the occupants of the vehicle.
If it were otherwise, any citizen who refuses to answer a plain-clothes police officer‘s investigative questions during a “tier one” inquiry, and instead exercises his constitutional right to “go on his way“—at top speed—would, by the act of exercising his right to “move on,” invite a full-blown tier two Terry “stop and frisk” not because of the addition of any articulable or particularized suspicion of imminent criminal activity, but because he exercised his right to the freedom of movement the
That is what occurred here. The officers had no grounds to stop and frisk the defendant when they saw him walking on Clairmount Avenue. They then seized upon his “suspicious” act of running away from the unmarked car as providing the articulable suspicion that criminal activity was underway. What criminal activity? What, in defendant‘s flight, when considered with the antecedent circumstances, provided a particularized suspicion that he was engaged in the commission of a crime?
It was clear to the officers in Terry that when Terry and his friends conducted an “elaborately casual and oft-repeated reconnaissance of the store window on Huron Road,” by walking past it first in one direction then another and peering in the window, and “repeated this ritual alternately between five and six times,” each time conferring with a third person stationed a short distance away, the suspects were “casing a job, a stick-up.” That was the particularized and articulable suspicion of imminent criminal activity that justified
If, as the United States Court of Appeals said in Green, supra, flight alone is not a reliable indicator of guilt without other circumstances because flight alone is inherently ambiguous, the ambiguity of the defendant‘s flight in this case is even more evident. The officers were not in uniform, they were driving an unmarked car, they did not identify themselves as police8 and, upon first observing the defendant, they slowed their vehicle, fixed their attention on the defendant, and then pursued him. It is not unreasonable to expect that a citizen walking along the street in a high-crime area in the dark of night, who is being scrutinized and then “tailed” by three unknown persons in a “private” motor vehicle, would vacate the area at flank speed.
VI
Assessing collectively the individual factors with which the officers were confronted in dealing with the rapidly unfolding events on Clairmount Avenue, we are unable to conclude that they combined to create a totality of circumstances having any different constitutional quality or significance than did the constituent parts.
Each factor is capable of innocent interpretation, and we find the individual factors here do not build to form the requisite objective basis for the particularized suspicion required to justify a Terry stop. The police were not investigating a recently
We conclude that the circumstances, as they appeared to the police officers on the night in question, considered in their totality, did not provide the requisite particularized suspicion based on objective observation that criminal activity was afoot sufficient to outweigh the defendant‘s privacy interests under the
Because the seizure of the defendant was unreasonable, in not meeting the requirements of a Terry stop, any evidence derived from that seizure must be suppressed as fruit of the poisonous tree. Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963). We find that the weapon would not have been discovered, but for the illegal seizure of the defendant, thus its admission into evidence was properly excluded by the courts below.
VII
The prosecutor claims that in throwing the paper bag containing the revolver to the floor in the vestibule of the building when he was seized, defendant abandoned the gun, thus cutting off his standing to claim that the evidence was illegally seized.9 People v Kirchoff, 74 Mich App 641; 254 NW2d 793 (1977). We disagree. “Abandonment is
Regardless whether abandonment was intended, defendant‘s actions cannot be used to dissipate the taint flowing from the unreasonable police conduct. Where, as here, the police activity is coercive in nature, we find that it serves to nullify any claim of abandonment. Although defendant divested himself of the bag prior to the officer‘s actually taking physical hold of him, the pursuit itself by the officers was effectively the seizure of the defendant. A seizure occurs when a reasonable person would have believed that he was not free to leave. United States v Mendenhall, 446 US 544; 100 S Ct 1870; 64 L Ed 2d 497 (1980); Florida v Royer, supra; Terry v Ohio, supra. As soon as the officers began their pursuit, defendant‘s freedom was restricted. If he stopped running, he would not be free to leave. Events proved that. Defendant‘s divestment of the bag was in direct response to his unjustified seizure. Following Wong Sun v United States, supra, the fruits of the officers’ illegal action are not to be admitted as evidence unless an intervening independent act of free will purges the primary taint of the unlawful invasion. In light of the coercive effect of the seizure of the
The Recorder‘s Court properly suppressed the weapon as evidence.
Affirmed.
LEVIN, BRICKLEY, CAVANAGH, and RILEY, JJ., concurred with RYAN, J.
BOYLE, J. (dissenting). This case presents two issues. The first issue is whether the initial contact between the police and the citizen in this case constituted a “seizure” within the ambit of the protections afforded by the
I
The first issue has not yet been authoritatively
In the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection he must first have a right not to avoid him but to be in his presence.
Despite Justice Harlan‘s prescient observation, the opinions in Terry and the companion cases focused2 attention on the pat down of Mr. Terry, and the pocket searches of the defendants in the companion cases. As Professor LaFave has noted:
The failure of the majority to heed [Justice Harlan‘s] advice, it would seem, was unwise, for the Court thereby detoured around the threshold issue about stop and frisk, one on which courts, lawyers and police deserve guidance. [LaFave, Search and Seizure, § 9.3, p 64.]
Research has disclosed only two United States Supreme Court cases3 providing guidance for resolution of whether the conduct here constituted a stop.
We adhere to the view that a person is “seized” only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. [Id. at 553.]
Analyzing the facts, Justices Stewart and Rehnquist observed that the events took place in a public concourse, the agents wore no uniforms and displayed no weapons, they did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. “Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest.” Id. at 555.
In Immigration and Naturalization Service v Delgado, 466 US 210; 104 S Ct 1758; 80 L Ed 2d 247 (1984), an action for injunctive and declaratory relief was brought by employees and their union, seeking to prevent the Immigration and Naturali-
In reversing the Court of Appeals, the majority held that interrogation relating to one‘s identity or a request for identification does not by itself constitute a
Justices Brennan and Marshall, concurring in part and dissenting in part, believed that the employees were seized within the meaning of the
While neither Mendenhall nor Delgado dispose of the issue presented here, they do illustrate that
I would conclude that on this record there was not an intrusion on protected interests sufficient to constitute a stop. While the reasonable belief of an individual actually stopped by the police is relevant to whether a seizure has occurred, the threshold issue, whether there has been a “stop,” is one of law. I would find on this record that one individual running after another is, as a matter of law, not a detention for investigation. The defendant‘s flight prevented any request for an explanation of his behavior. On these facts, not even a “forcible stop,” Terry, supra (Harlan, J., concurring), triggering
II
Even if running after the defendant was a “stop,” it is clear that the seizure was justified by a reasonable suspicion, based on objective facts, that the defendant was involved in criminal activity.
Since Terry v Ohio, supra, the Court has determined the propriety of Terry-type activity by balancing the extent of the intrusion on the individual‘s rights against the right of the public to be free from criminal activity. Terry v Ohio, supra; Adams v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972); United States v Brignoni-Ponce, 422 US 873; 95 S Ct 2574; 45 L Ed 2d 607 (1975).
In his Mendenhall concurrence, Justice Powell,
There can be no debate that unlawful use of handguns constitutes a serious threat to public safety. According to figures compiled by the Federal Bureau of Investigation, firearms were responsible for sixty percent of the 18,692 murders and nonnegligent manslaughters committed nationwide in 1984. The FBI also reports that firearms were used in thirty-six percent of the 485,008 robberies committed in 1984. According to the Detroit Police Department, in the first six months of 1985, firearms were responsible for 157 homicides in Detroit alone.
Balanced against the public‘s right to be free from the employment of firearms for criminal use, is the limited nature of the intrusion on the defendant in this case.6 A pursuit in the attempt to stop to ascertain whether or not a weapon is being concealed is a minuscule intrusion when weighed against the havoc caused by weapons.
Applying the balancing test first articulated in
Moreover, since Terry, the Supreme Court has consistently held that the “reasonable suspicion” required for a valid investigative stop must be judged by the totality of the circumstances at the time of the incident. As the majority observes, this totality has been specifically held to include the experience and heightened perceptions of the police officers involved, United States v Cortez, supra.
It is true that flight alone cannot give rise to probable cause, since, were it otherwise, anyone who does not desire to talk to the police and who either walks or runs away from them would always be subject to legal arrest. LaFave, Search and Seizure, § 3.6, p 669.
It is also true that concealment itself may be insufficient to justify a stop. Id. The majority has not, however, set forth authority justifying the conclusion that, in combination, the observation by experienced police officers of concealment and flight may not provide a reasonable suspicion that criminal activity is occurring. Indeed, the case cited by the majority, United States v Green, 216 US App DC 329; 670 F2d 1148 (1981), not only does not support the conclusion of the majority that the officers had only a generalized suspicion, it is actually a holding that the officers’ observation of activity typical of a narcotics transaction, the concealment of a brown paper bag and the flight and evasion by defendant when approached by an unmarked police car, constituted probable cause for arrest. Id. at 332.
The majority has discredited the inference which reasonable police officers might draw and has bifurcated the circumstances to conclude that the sum of the circumstances is not “greater than the sum of their parts.” Ante, p 60.
The purported justification for their conclusion is that each circumstance may have been innocent. This analysis obscures the significance of the officers’ experience and renders the totality of circumstances test meaningless. As the United States Court of Appeals for the Ninth Circuit noted in United States v Holland, 510 F2d 453, 455 (CA 9, 1975):
Clearly, the officers were not required to rule out all possibility of innocent behavior before initiating a brief stop . . . . The test is founded suspicion . . . . Even if it was equally probable that the vehicle or its occupants were innocent of any wrongdoing, police officers must be permitted to act before their reasonable belief is verified by escape or fruition of the harm it was their duty to prevent.
See also United States v Viegas, 639 F2d 42 (CA 1, 1981), and United States v Black, 675 F2d 129 (CA 7, 1982).
The defendant in this case was seen by two
I would reverse and remand to the trial court.
WILLIAMS, C.J., concurred with BOYLE, J.