People v. Oliver
People v. Oliver
Opinion of the Court
These consolidated cases arise from the same bank robbery and ensuing police stop of a car in the city of Jackson. In each case, the defendant argues that incriminating evidence resulting from the stop of the car should have been suppressed on the basis of the Fourth Amendment exclusionary rule. We
I. FACTS AND PROCEDURAL HISTORY
Shortly before noon on December 1, 1994, an armed robbery was committed at a Republic Bank branch in Jackson. It was reported that two black males were the perpetrators and that they left the bank on foot. Pivotal to the issue at hand is the conduct of Jackson County Deputy Sheriff Roger Elder that led to his stopping of the motor vehicle containing both the defendants and two other passengers. Deputy Elder had been a sheriffs deputy for over sixteen years at the time of the suppression hearing in Oliver. Notably, the great bulk of Deputy Elder’s service with the sheriff’s department was with the road patrol division. Before that, he was a township police officer for about two and a half to three years. In the course of his career as a police officer, Deputy Elder was directly involved in investigating about twenty bank robberies.
Deputy Elder testified that while he was in his patrol car shortly before noon on the date of the robbery he (along with other police officers in the area) heard a general dispatch that an armed robbery had just occurred at the Republic Bank at the comer of North and Wisner Streets in Jackson. This dispatch advised that the suspects were two black males last seen heading northbound on foot from the bank. When he heard the dispatch, Deputy Elder, who was north of the bank, headed south to the general area of
[bjecause it’s my experience in the years I’ve been a police officer, that there is almost always a getaway car in a bank robbery, and if there’s a getaway car, there’s at least one more person with it.[1 ]
In the course of driving toward the area of the armed robbery, Deputy Elder stopped at a New York Carpet World store where he encountered two store employees standing outside smoking cigarettes. This store was located north of the Republic Bank. Deputy Elder asked them if they had seen any black males running in the area, and they replied that they had been outside for about ten minutes and had not seen anyone except children across the street at a school.
He next went to the Westbay Apartments complex because he thought that the apartment complex would have been an excellent place for someone on foot to run and a good place to hide a getaway vehicle. The Westbay Apartments were located on the corner of North and Brown Streets, which was the first major intersection along North Street to the west of the Republic Bank, and this area was secluded. The Westbay Apartments complex was within a quarter mile of the Republic Bank.
When Deputy Elder was turning into an entrance to the Westbay Apartments complex, he saw a green
After this, apparently concluding that these individuals were possibly implicated in the robbery, Deputy Elder requested backup over his police radio because he had spotted a “possible suspect vehicle.” Deputy Elder, driving his patrol car, then followed the Mercedes as it proceeded west on North Street, then south on Brown Street, then east on Ganson Street, and finally south on Wisner Street. In driving this route, the Mercedes went through the intersection of Wisner and Ganson Streets. It would have been a more direct route to that intersection from the Westbay Apart
Eventually, when another sheriff’s deputy patted down Casual Banks, one of the passengers in the Mercedes, he found a large amount of money, including a bundle of money with a bank wrapper on it, and a Michigan identification for defendant Oliver. Later at the police station, a wad of money was found on defendant Oliver, who was a passenger in the Mercedes. Defendant Taylor was the driver and owner of the Mercedes. A search of the trunk of the Mercedes at the police station located a bag containing money and a .32 caliber automatic pistol. Also, defendant Taylor eventually made statements to the police that were later used against him.
Notably, at each suppression hearing, the trial court credited Deputy Elder’s testimony about the basic facts surrounding the traffic stop. Defendants do not challenge that determination, but rather accept the basic facts related by Deputy Elder, while arguing that he nevertheless did not have legal justification consistent with the Fourth Amendment to effect the traffic stop.
In each of these consolidated cases, the circuit court denied the respective defendant’s motions to suppress the incriminating evidence discussed above. The circuit court held, contrary to the defense position, that the traffic stop was supported by reasonable suspicion.
In Oliver, the Court of Appeals declined to address whether there was reasonable suspicion to effect the traffic stop on the basis of its conclusion that defendant Oliver, as a passenger in the car, did not have “standing to challenge” admission of the evidence at issue under the Fourth Amendment exclusionary rule.
n. analysis
A trial court’s factual findings at a suppression hearing will not be reversed unless they are clearly erroneous. However, as in the present case, the application of constitutional standards regarding searches
In LoCicero, supra at 501-502, this Court summarized the requirements for the police to make a valid investigatory stop based on reasonable suspicion consistently with constitutional protections:
The brief detention of a person following an investigatory stop is considered a reasonable seizure if the officer has a “reasonably articulable suspicion” that the person is engaging in criminal activity. The reasonableness of an officer’s suspicion is determined case by case on the basis of the totality of all the facts and circumstances. “[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unpar-ticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”
Although this Court has indicated that fewer facts are needed to establish reasonable suspicion when a person is in a moving vehicle than in a house, some minimum threshold of reasonable suspicion must be established to justify an investigatory stop whether a person is in a vehicle or on the street. [Citations omitted.]
Further, in determining whether the totality of the circumstances provide reasonable suspicion to support an investigatory stop, those circumstances must be viewed “as understood and interpreted by law enforcement officers, not legal scholars . . . .” People v Nelson, 443 Mich 626, 632; 505 NW2d 266 (1993). Also, “[c]ommon sense and everyday life experiences predominate over uncompromising standards.” Id. at 635-636.
The facts of Terry are instructive. In that case, plain clothes police detective Martin McFadden was assigned to downtown Cleveland. He observed two men walking a street, each of them repeatedly stopping to look in the same store window. Then, they were joined by a third man who talked with them briefly. Officer McFadden “testified that after observing [the two men’s] elaborately casual and oft-repeated reconnaissance of the store window on Huron Road, he suspected the two men of ‘casing a job, a stick-up,’ and that he considered it his duty as a police officer to investigate further.” Terry, supra at 6. Officer McFadden also explained that he feared the men might have a gun. Officer McFadden stopped the three men and asked their names. When the men merely “mumbled something” in response, Officer McFadden grabbed one of them and patted down the outside of his clothing, finding a gun. Eventually, he conducted a similar search of another of the men and found a gun on him as well.
The following discussion in Terry illustrates how factors that in isolation appear innocent may, in combination, provide a police officer with reasonable suspicion to justify an investigative stop:
*194 “[Officer McFadden] had observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation. There is nothing unusual in two men standing together on a street comer, perhaps waiting for someone. Nor is there anything suspicious about people in such circumstances strolling up and down the street, singly or in pairs. Store windows, moreover, are made to be looked in. But the story is quite different where, as here, two men hover about a street comer for an extended period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything; where these men pace alternately along an identical route, pausing to stare in the same store window roughly 24 times; where each completion of this route is followed immediately by a conference between the two men on the comer; where they are joined in one of these conferences by a third man who leaves swiftly; and where the two men finally follow the third and rejoin him a couple of blocks away. It would have been poor police work indeed for an officer of 30 years’ experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further.” [Id. at 22-23.]
Similarly, in itself, there is certainly nothing suspicious about four men occupying a car that is leaving an apartment complex. However, there were other factors in this case that provided Deputy Elder with reasonable suspicion to stop the car. First, as Deputy Elder explained in his testimony at both suppression hearings, he deduced that the two direct perpetrators of the bank robbery would most likely have the assistance of a getaway driver. Also, it was reported that the bank was robbed by two black males. Thus, the fact that the car had at least three occupants and at
However, there were other factors that provided a particularized basis for Deputy Elder to reasonably suspect that occupants of the Mercedes in which defendants were present had been involved in the bank robbery. The car was spotted by Deputy Elder in the Westbay Apartments complex within fifteen minutes of the report of the bank robbery. The complex was located to the west of the bank along North Street and within a quarter mile of the bank. Deputy Elder had first essentially eliminated the direction north of the bank on the basis of two men outside the carpet store (which was north of the bank) telling
[i]n analyzing the totality of the circumstances, the law enforcement officers are permitted, if not required, to consider “the modes or patterns of operation of certain kinds of lawbreakers. From [this] data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person.” [Nelson, supra at 636, quoting United States v Cortez, 449 US 411, 418; 101 S Ct 690; 66 L Ed 2d 621 (1981).]
On top of this, the occupants of the Mercedes drew further suspicion on themselves by their atypical conduct in each declining to look in the direction of Deputy Elder’s passing marked patrol car. As the deputy explained, in his experience as a police officer, this was highly unusual. There is no basis to conclude that this observation was inaccurate, and, accord
For conduct to support a finding of a reasonable suspicion, it need be, as we are instructed by the United States Supreme Court, merely evasive. Indeed, the United States Supreme Court has quite recently stated that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Illinois v Wardlow, 528 US 119, 124; 120 S Ct 673; 145 L Ed 2d 570 (2000). In Wardlow, the defendant was standing next to a building holding an opaque bag in an area of Chicago known for heavy narcotics trafficking. When a four-car caravan of police cars
In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. [Id. at 124-125.1
[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. [Quoting Scott v United States, 436 US 128, 138; 98 S Ct 1717; 56 L Ed 2d 168 (1978).]
Accordingly, objective facts known to the police officers who effected the traffic stop should be considered in determining whether the stop was justified by reasonable suspicion regardless of whether the officers subjectively relied on those facts.
We conclude that, under the totality of the circumstances, Deputy Elder’s investigatory stop of the car at issue was supported by reasonable suspicion that occupants of that car may have been involved in the robbery of the Republic Bank. The reasons for that conclusion include: (1) the deputy encountered the car near the crime scene, given that the apartment complex was within a quarter mile of the bank; (2) the time was short, with at most fifteen minutes elapsing from the time of the report of the robbery to
It is always possible, as the dissent does, to hypothesize innocent explanations for the circumstances preceding the traffic stop. That possibility alone cannot thwart the proper efforts of law enforcement to protect onr communities. “Terry accepts the risk that officers may stop innocent people.” Wardlow, supra at 126.
[T]he absence of apparent innocent behavior has never been a requirement for the suspicion required to make an investigatory stop. United States v Sokolow, 490 US 1, 9; 109 S Ct 1581; 104 L Ed 2d 1 (1989). The question is not whether the conduct is innocent or guilty. Very often what appears to be innocence is in fact guilt, and what is indeed entirely innocent may in some circumstances provide the basis for the suspicion required to make an investigatory stop. Thus, the focus is on the “ ‘degree of suspicion that attaches to particular types of noncriminal acts.’ ” Id. at 10.
Indeed, the facts of Nelson are instructive because they also involve defendants of whom the police were reasonably suspicious because of the location of occupants in a car near a location where criminal activity was known to have occurred. In Nelson, a police informant bought a quantity of cocaine from a house that was under police surveillance. After about thirty minutes, a vehicle with three occupants (unconnected with the police informant) arrived at the house and remained for only four minutes. A detective with twenty-three years of experience testified that this behavior “was characteristic of a ‘crack-house’ buy.” Id. at 629. Shortly after leaving the house, the car in Nelson was stopped to investigate the possible drug transaction. This Court, showing deference to the experience of the police detective, held that the stop was supported by reasonable suspicion, noting that the behavior in that case “was indicative of drug trafficking.” Id. at 637-638. This Court in Nelson noted — and rejected — the argument of one of the defendant’s counsel in the trial court that there was no reasonable suspicion to support the traffic
In sum, the police in the present case stopped a car that contained at least three people in a situation where the police were looking for two bank robbers and expecting to find a getaway driver as well. Because the car had at least two black male occupants, its occupants were consistent with the description of the bank robbers. After Deputy Elder eliminated the direction north of the bank, the car was found leaving a secluded area close to the bank (indeed, within a quarter mile) that was a logical hiding place.
m. conclusion
We conclude that, under the totality of the circumstances, the police had the necessaiy reasonable suspicion to justify the traffic stop underlying these consolidated cases. Accordingly, we affirm the judgment of the Court of Appeals in each case.
Deputy Elder likewise testified at the suppression hearing in Taylor that he was looking for at least three suspects:
Well, it’s been my experience in the past that there is usually someone nearby, in a robbery attempt, with a getaway vehicle, so I would look for at least three people.
Deputy Elder similarly testified at the suppression hearing in Taylor that no occupant of the Mercedes looked over at his patrol car. Deputy Elder explained that he found this significant because in his experience:
Inevitably, when a patrol car drives by somebody, they [sic] always look over at you. Somebody in the vehicle will look at the patrol car.
In short, the panel in Oliver concluded that defendant Oliver could not challenge the search of Banks in which incriminating evidence was first found and that, accordingly, he could not challenge the location of other incriminating evidence as a result of the ensuing events. The parties in each case have argued the issue of the scope of the respective defendants’ “standing to challenge,” or in other words the extent to which they may avail themselves of the Fourth Amendment exclusionary rule if there were a violation of the Fourth Amendment. However, in light of our conclusion that the traffic stop was supported by reasonable suspicion (and, thus, did not violate the Fourth Amendment), we need not address these “standing to challenge” issues.
The car was occupied by four black males, but the important point is that it had at least three occupants and at least two of those were black males. If, for example, the car would have had two black male and two white male occupants, we do not see any way that would alter the reasonable suspicion analysis.
We note that there are certainly many ways in which it would be inappropriate for the police to use race as a factor in performing their duties. However, no reasonable person would contend that the police should disregard race where it has been reported by eyewitnesses that a crime has been committed by a person of a particular race or skin color. Simply put, it would have made no sense in the case at hand for the police to have pursued non-black individuals as having been the individuals who actually robbed the bank. As the United States Court of Appeals for the Sixth Circuit observed in United States v Waldron, 206 F3d 597, 604 (CA 6, 2000), “[c]ommon sense dictates that, when determining whom to approach as a suspect of criminal wrongdoing, a police officer may legitimately consider race as a factor if descriptions of the perpetrator known to the officer include race.”
Thus, we certainly agree with the dissent that Deputy Elder would not have been “justified in stopping every grouping of black males in the vicinity . . . .” Post at 213. However, as we set forth in this opinion, there were a number of factors that, in combination, provided particularized suspicion for the traffic stop at issue.
At the suppression hearing in Oliver, Deputy Elder explained that a getaway vehicle was more often “in a hidden area somewhere close by” the site of a robbery than in front of the building. In Taylor, Deputy Elder testified at the suppression hearing that his “experience tells me that they wouldn’t have put” the getaway car in the parking lot of a Wendy’s restaurant or laundromat (which were apparently among the businesses near the bank) as opposed to a more secluded place.
The police cars were involved in an effort to investigate drug transactions in the area
We note that defendants have cited some pre-Wardlow decisions by panels of the United States Circuit Courts of Appeals indicating that avoidance of eye contact is not properly considered as a factor in support of a finding of reasonable suspicion. However, we regard these
The dissent states that “it is impossible to say that the ‘route’ they [the occupants of the car] chose was ‘circuitous,’ when they had not yet traveled to a specified destination when stopped. At most, we can conclude that they chose to drive a longer distance than necessary between two points.” Post at 221. We do not perceive the distinction that the dissent would draw in this regard. It seems plain to us that a route would be “circuitous” precisely because it involved driving longer than necessary.
As the dissent indicates, there was testimony from Deputy Elder that the car that was stopped was being driven in a manner that seemed overly cautious because of the driver’s strict compliance with traffic laws. Post at 209. However, we place no reliance whatsoever on this strict compliance with the traffic laws in concluding that there was reasonable suspicion to support the present traffic stop. Indeed, we agree with the dissent that it would seem anomalous to consider the mere fact of strict compliance with the traffic laws as being a factor in support of a finding of reasonable suspicion of criminal activity. Of course, we do not mean to suggest that an act in compliance with the law cannot be a factor in support of reasonable suspicion.
Indeed, the United States Supreme Court pointed out in Wardlow that “the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent.” Id. at 126.
While not expressly stated, the dissent seems to suggest that one of the reasons provided by Deputy Elder for investigating the Westbay Apartments complex may have been that “he knew blacks lived there.” See post at 212-213. However, Deputy Elder never indicated that he went to the Westbay complex because “he knew from personal experience that black individuals lived there.” Post at 213. Instead, his comments in this regard were isolated responses to specific questions concerning what he had observed while he had been at the complex on a previous occasion looking for an apartment with Ms wife. Accordingly, Deputy Elder’s testimony does not reflect that he decided to go to the Westbay Apartments because of the number of African-Americans that may have lived there, but merely that he happened to know from an unrelated event that African-Americans lived there.
In any event, we, of course, agree with the dissent that there would be nothing reasonably suspicious about African-Americans merely being at the apartment complex. Rather, as we have addressed, it is the particular
We note that defendant Taylor makes arguments in his brief on appeal regarding issues other than the validity of the stop of the Mercedes and the scope of his standing to challenge the evidence obtained as a result of that stop. These issues are beyond the scope of defendant Taylor’s application for leave to appeal that was previously granted by this Court. Accordingly, we decline to review those issues.
Dissenting Opinion
(dissenting). The primary issue in this case is whether reasonable suspicion existed to stop and search a vehicle and its four black occupants. I would hold that (1) the officer effectuating the stop failed to articulate a particularized and objective basis that would lead a reasonable person to suspect the occupants of the vehicle of criminal activity, and (2)
i
The issue in this case implicates the Search and Seizure Clause of the Fourth Amendment of the United States Constitution,
Our United States Supreme Court has spoken on the requisite test to be applied in cases involving an investigatory stop of criminal defendants. The Court has held that “[a]n automobile stop is thus subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances.” Whren at 810. In United States v Cortez, 449 US 411, 418; 101 S Ct 690; 66 L Ed 2d 621 (1981), the United States Supreme Court stated that the totality of the circumstances inquiry, in the event of a Terry stop, should take into account the whole picture. On the basis of that whole picture, the detaining officers must have a particularized and objective basis for suspecting criminal activ
When the seizure of a defendant is unreasonable because it does not comport with Terry, evidence flowing from that seizure may 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); Shabaz, supra. Pursuant to Wong Sun, “the fruits of the officers’ illegal action are not to be admitted as evidence unless an intervening independent act of free will purge the primary taint of the unlawful invasion.” Shabaz at 66.
h
In order to determine whether the stop in this case passes constitutional muster, we are required to consider the underlying facts as well as the deductions predicated upon the facts and to make a determination of whether the detaining officer had a reasonable, articulable, and particularized basis for detaining the defendants. The majority does a fair job of detailing the objective facts underlying this case and recapping Deputy Elder’s testimony. However, the majority occasionally commingles the facts with Deputy Elder’s deductions and with its own deductions, and omits a few facts that I find key to the case. This
Deputy Elder’s testimony in this case revealed the following facts common to both Oliver and Taylor. (1) Deputy Elder overheard a dispatch
From these objective facts, Deputy Elder testified that his experience as a police officer led him to deduce the following: (1) that the Westbay Apartments complex would be an excellent place for someone to run on foot or to hide a getaway vehicle because it was close and secluded, (2) that if there were a getaway vehicle, it would likely have at least three occupants because an additional person usually drives the getaway vehicle, (3) that it was very unusual for people not to look at an officer or patrol car driving by, and (4) that by driving the speed limit, using turn signals, and making complete stops, the driver of the car seemed to be overcautious. The majority adds one additional deduction-that the defendants were acting suspiciously by driving a “circuitous” route while being tailed by Deputy Elder.
According to the majority, reasonable suspicion is the sum total of all the circumstances presented by this case. I disagree. An analysis of the underlying facts and deductions reveals that Deputy Elder’s suspicions were generalized, rather than particularized, articulable, and reasonable. Deputy Elder failed to demonstrate that these particular defendants were acting in a fashion that would support a suspicion that they had been or were about to be engaged in criminal wrongdoing. As such, the stop lacked reasonableness and was unjustified. See Shabaz at 59.
This case boils down to a situation in which our defendants fell within the universe of possible suspects because they were of the race, gender, and minimal number described in the dispatch and because they were in the vicinity of the robbery shortly after the time that it had occurred. It is important to remember that the original description Deputy Elder heard was that two black men (not four), fled north (not west), on foot (not in a car). While Deputy Elder’s testimony provided reasons to justify his belief that he should look for a broader class of suspects than the dispatch described, it is crucial to recognize that many of the factors cited by Deputy Elder and relied upon by the majority would justify a stop of any grouping of two or more black males who happened to be traveling within the vicinity of the robbery at the time of Deputy Elder’s search. The law does not permit random stops of automobiles. Rather, officers may make a stop only when particularized
As a preliminary matter, it should also be recognized that the majority had to deduce that the Westbay Apartments complex was a reasonable place for Deputy Elder to look for suspects as a precursor to the conclusion that he had the requisite reasonable suspicion. Though Deputy Elder testified that he had headed to the Westbay Apartments complex after ruling out the area north of the bank, and also stated that a getaway car would probably be located in a secluded area, his search nonetheless began north of the bank and he made inquiries of individuals standing in a public parking lot. Thus, it is not entirely clear that the Westbay Apartments complex was an area any more suspicious than anywhere else near the robbery, or that Deputy Elder would have been any less suspicious of black males in a crowded park
Even assuming that it is appropriate to rely on the deduction that the Westbay Apartments complex was a reasonable place to hide a getaway car, almost all the factors noted in Deputy Elder’s testimony reveal only that he believed that he was in a location where the suspects might reasonably be when he stopped the defendants: he had ruled out the area near the New York Carpet World, he was within a quarter mile of the bank, he thought a getaway car might be hidden there, he thought it was within walking distance of the bank, and he knew blacks lived there. None of these factors were tied to our defendants. Similarly, Deputy Elder also offered a few factors that tend to show that the defendants were not precluded from the list of suspects: they were black, they were male, and there were at least two of them. At most, these collective observations by Deputy Elder narrowed the list of possible suspects. None of these factors would tie our specific defendants to the crime. While Deputy Elder may have been justified in stopping only black males in the vicinity, nothing in his testimony indi
Even if special weight is given to the fact that Deputy Elder believed the apartment complex would be a good place to hide a getaway vehicle and that at least three people would have been involved in the crime, the prosecution was still required to show that Deputy Elder believed that these particular defendants had been or were about to be engaged in criminal activity. Instead, a review of the factors leading to Deputy Elder’s suspicions of these particular defendants, as opposed to his suspicion of groups of black men in general, amount to nothing more than a hunch that they in fact may have been the robbers. For Fourth Amendment purposes, a hunch is an insufficient basis for initiating a stop. See Terry at 27.
In Oliver, Deputy Elder testified that he was familiar with the Westbay Apartments, that he knew from personal experience that black individuals lived there, and that it would not be unusual for black individuals to be coming out of the Westbay Apartments complex. These factors undercut the reasonableness of Deputy Elder’s suspicions that any particular black men or group of black men at the apartment complex were the bank robbers.
The final factor, that the defendants did not look at the patrol car when leaving the apartment complex, is the only other factor enunciated by Deputy Elder that
First, I disagree that the law somehow decisively supports the proposition that failure to look at a police officer constitutes a specific factor. The primary case relied upon by the majority is distinguishable. The majority cites Illinois v Wardlow, 528 US 119, 124; 120 S Ct 673; 145 L Ed 2d 570 (2000), for the proposition that, “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Ante at 197. However, Wardlow involved a defendant who fled at the sight of police officers. Failure to react to police officers and reacting by fleeing are very different, even opposite, behaviors. Wardlow is in no way controlling. Thus, unlike the majority, see Ante at 198-199, n 9, I believe that pre-Wardlow decisions are of great value, and are more persuasive than the limited authority offered by the majority.
In sum, the factors cited by Deputy Elder in support of his decision to stop the defendants do not amount to reasonable suspicion. In this regard, I agree with the majority that the fact that four men are leaving an apartment complex is not suspicious.
IV
None of the factors cited by Deputy Elder as suspicious would justify the stop in this case in and of itself. Thus, the only way that particularized suspicion can be found on the facts offered by Deputy Elder is to conclude that the collection of unsuspicious behaviors offered by Deputy Elder somehow acted in tandem to create particularized reasonable suspicion. I would conclude that, in this case, the sum of zero suspicion and zero suspicion is zero suspicion.
v
It is clear that reasonable suspicion has not been proven on the basis of the factors relied upon by Deputy Elder. The factors were not suspicious, either individually or collectively. However, the majority asserts that this Court should consider all the factors available to the police in determining whether the stop was justified, regardless of whether the officers subjectively relied upon those facts. Citing People v Arterberry, 431 Mich 381, 384; 429 NW2d 574 (1988). In particular, the majority finds significance in the fact that the defendants drove a “circuitous” route while being followed. I disagree with the majority that
Objectively viewed, I would not consider the defendant’s behavior to be particularly suspicious. Nothing indicates that these particular defendants had or were about to be engaged in cfiminal wrongdoing, as is required for a Fourth Amendment stop to be valid. Shabaz at 59. Rather, the officer acted upon an inchoate or unparticularized hunch. I would, therefore, hold that Deputy Elder’s actions were unreasonable under the circumstances, and that the stop was constitutionally invalid. See Whren at 810; Terry at 27. As
The unlawful invasion in this case was an illegal stop of a vehicle occupied by four men. The subsequent searches and seizures of the occupants produced the “fruits” sought to be suppressed. Wong Sun explained that, in determining whether evidence should be excluded as fruit of the poisonous tree, the question is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has come by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. at 488. In this case, the evidence obtained appears to have come about directly by exploitation of the illegal stop.
The trial court’s decision to admit the evidence flowing from the stop was made without consideration for the exclusionary rule because the decision was based on an erroneous conclusion that the stop was reasonable. The Court of Appeals affirmance similarly found the exclusionary rule to be inapplicable.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated ....
In Oliver, Deputy Elder testified that he received a dispatch that was broadcast to all police agencies. In Taylor, he testified that he did not receive the dispatch directly, but heard some radio traffic.
It is unclear at what point the officer radioed for back up. In Taylor, he testified it was at the point he turned around and began to follow the defendants. In Oliver, he indicated it was while he was already following them.
In Oliver, Deputy Elder additionally testified about the fact that he had seen no black males either in vehicles or on foot before encountering the defendants.
As we stated in Site v Dep’t of State Police, 443 Mich 744, 747; 506 NW2d 209 (1993), “there is no support in the constitutional history of Michigan for the proposition that the police may engage in warrantless and suspicionless seizures of automobiles for the purpose of enforcing criminal law . . .
Similarly, as we warned in People v Roache, 237 Mich 215, 224-225; 211 NW 742 (1927):
While we may take judicial notice of the fact that rum runners and bandits ride in automobiles, and use them to commit crimes and effect their escape, may we not also take judicial notice of the fact that where there is one bandit or rum runner passing over a public highway, there are thousands of respectable, law-abiding citizens who are doing likewise? The protection afforded by the constitution to such persons must be regarded as paramount to any right to be given a police officer to enable him to verify his ungrounded suspicion that a law is being violated.
The granting, if such were possible, to overzealous officers, of powers, the performance of which would invade constitutional rights of the citizen, would do more to retard the enforcement of the law than to promote it.
As a matter of logic, searching for a black person in an area where there is a concentration of black people makes it less likely that any particular black individual is the one unknown individual you are searching for than if you were to see a black individual in an area where the black population is less concentrated.
With regard to the fact that Deputy Elder knew blacks lived at the Westbay Apartments, the majority writes,
*214 Deputy Elder never indicated that he went to the Westbay complex because “he knew from personal experience that black individuals lived there.” Post at 213. Instead, [Deputy Elder’s] comments in this regard were isolated responses to specific questions concerning what he had observed while he had been at the complex on a previous occasion looking for an apartment with his wife. [Ante at 204, n 13.]
I note that this opinion nowhere states that Deputy Elder went to the Westbay Apartments because he believed that he would find blacks there. The opinion simply points out that Deputy Elder himself testified that he knew that he was in an area where it was not unusual to see blacks leaving the apartment complex. Thus, his testimony is indicative of the fact that there was nothing inherently suspicious about the fact that our defendants were leaving the Westbay Apartments, and that Deputy Elder knew there was nothing suspicious about black individuals exiting the Westbay Apartments.
It is entirely irrelevant whether Deputy Elder’s testimony came to light in response to questions posed by defense counsel or whether he offered the information voluntarily. The fact remains that his testimony sheds light on whether his suspicions were reasonable and particularized.
See United States v Dela Cruz-Tapia, 162 F3d 1275, 1280 (CA 10, 1998) (the lack of eye contact is so innocent or susceptible to varying interpretations as to be innocuous and does not afford a reasonable suspicion for a stop); United States v Garcia-Camacho, 53 F3d 244, 246-247 (CA 9, 1995) (tíre fact that occupants of a vehicle stared straight ahead when passing a marked police car cannot weigh in the balance of whether there existed a reasonable suspicion for a stop); United States v Halls, 40 F3d 275, 276 (CA 8, 1994) (merely avoiding eye contact with state troopers while driving a vehicle fails to give rise to a reasonable inference of illegal activity); United States v Pavelski, 789 F2d 485, 489 (CA 7, 1986)
The majority places great reliance on Nelson, stating that “the facts of Nelson are instructive because they also involve defendants of whom the police were reasonably suspicious because of the location of occupants in a car near a location where criminal activity was known to have occurred.” Ante at 203. Nelson involved factors that were more particularized than the factors at issue in the present case. In Nelson, the police were on surveillance at a particular location where criminal activity had previously occurred and was suspected to occur again. The exact type of
the detective watching the house testified “that on the basis of his twenty-three years experience, the defendant’s behavior was characteristic of a ‘crack-house’ buy: ‘a short visit, in/out back in the car and down the road.’ It was described as a ‘carbon copy’ of what had occurred two weeks earlier.” The Court concluded that this knowledge, coupled with the other information the police had regarding the house, formed the basis for reasonable suspicion justifying further inquiry.
Contrast these factors with what occurred in our case: the police knew that a crime occurred somewhere in the area, but they were not watching for the crime to be repeated; the police knew that suspects would likely be in the general area, but they did not know where; and the police did not observe behavior that amounted to a carbon copy of behavior they had previously seen while observing robbers.
[I]n itself, there is certainly nothing suspicious about four men occupying a car that is leaving an apartment complex. [Ante at 194]
The majority states:
[T]he fact that the car had at least three occupants and at least two black males indicated that its occupants were consistent with the description of the suspected perpetrators. Of course, that in itself would not provide the particularized suspicion necessary for a valid investigatory stop. [Ante at 194-195.]
During oral argument before this Court, even the attorney for the people recognized that a Fourth Amendment problem could arise when an officer simply goes to an area near a crime scene where a high concentration of people fitting the description might be found, and then relies on something as minimal as the avoidance of eye contact to support a stop. The following discourse occurred:
Court: So let’s say the robbery were reported to have been committed by a senior citizen with gray hair. I presume if Elder drove to a nearby retirement center and waited for the first person coming out that had gray hair in the car and looked straight ahead, he could stop him.
Attorney: Boy, I’d have trouble with that one because in the first place, senior citizens with gray hair, statistically there are a lot more of them than ....
Court: Than black males?
Attorney: In the Jackson area, oh yes. If the facts of this had occurred in East Detroit, I’d be in really big trouble. I personally would not find reasonable suspicion in your case ....
The people’s attorney then went on to explain that the inquiry entails looking at the totality of the circumstances, and that a limiting description that cuts out over half the population would add support for a finding of reasonable suspicion. What the attorney failed to recognize is that Deputy Elder himself admitted that he was not in an area where the description was limited. Instead, he was in an area where it was not unusual to see black males.
[N]one of this is to suggest that the mere fact that a car passes by a patrol car without any of its occupants looking at the patrol car would justify a traffic stop .... [Ante at 199, n 9.]
Though the mEyority attempts to assert otherwise, the simple fact remains that nothing in the mEyority opinion shows that our particular defendants were any more suspicious than any other black men who would have been leaving the Westbay Apartments together.
The Court of Appeals affirmed on grounds different than that offered by the trial court. However, the Court of Appeals conclusion that the defendant was lawfully arrested ignored the illegality of the initial stop. Thus, like the trial court, the Court of Appeals erred at the outset.
Reference
- Full Case Name
- People v. Oliver; People v. Taylor
- Cited By
- 68 cases
- Status
- Published