Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Just ice Justices
Maura D . Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 12, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 112341
JOEY DUANE OLIVER,
Defendant-Appellant.
____________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 115064
ANTHONY DUANE TAYLOR,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
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
conclude that the stop of the car was supported by reasonable
suspicion and, thus, did not violate the Fourth Amendment.
Accordingly, we agree with the refusal of the lower courts to
suppress the evidence at issue.
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
sheriff’s 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 2½ 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
2
with other police officers in the area) heard a general
dispatch that an armed robbery had just occurred at the
Republic Bank at the corner 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 the bank to
look for suspects. Deputy Elder explained at the suppression
hearing in Oliver that he was not looking for just two
suspects,
[b]ecause 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
1
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.
3
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 Mercedes with four
black male occupants heading out of the driveway. Deputy
Elder testified at the suppression hearing in Oliver that
“[a]s I was passing by them [the occupants of the Mercedes],
I turned and looked over at them, and all four subjects looked
directly ahead. They would not, any of them, look over at
me.” Deputy Elder said that he found this “very unusual”
because, on the basis of his nineteen years of experience as
a police officer, “[w]ell basically, because people always
look at the cops. When you drive by, they always look over
4
and see who’s in the car or—they just always look at you.”2
Deputy Elder testified that he saw the Mercedes within ten or
fifteen minutes of the dispatch regarding the bank robbery and
that he passed within six to eight feet of the Mercedes when
they passed by each other at the entrance to the apartment
complex.
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 Apartments for the Mercedes
to have simply gone east on North Street and then turned south
on Wisner Street. Notably, this more direct route would have
2
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.
5
taken the Mercedes by the location of the Republic Bank that
was robbed in this case. When backup patrol cars arrived,
Deputy Elder stopped the Mercedes on Wisner Street.
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
6
incriminating evidence discussed above. The circuit court
held, contrary to the defense position, that the traffic stop
was supported by reasonable suspicion.
Thereafter, defendant Oliver entered a conditional guilty
plea to conspiracy to commit armed robbery, MCL 750.157a,
armed robbery, MCL 750.529, and possession of a firearm during
the commission of a felony, MCL 750.227b. The condition was
that defendant Oliver be able to appeal the trial court’s
ruling at the suppression hearing in his case. At a jury
trial, defendant Taylor was found guilty of the same crimes to
which defendant Oliver conditionally pleaded guilty.
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.3 In Taylor, a different panel of the Court
3
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,
(continued...)
7
of Appeals agreed with the trial court’s conclusion that the
stop of the car was a valid traffic stop supported by
reasonable suspicion.
II. 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 and seizures to
essentially uncontested facts is not entitled to this level of
deference. People v LoCicero (After Remand), 453 Mich 496,
500-501; 556 NW2d 498 (1996).
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
unparticularized suspicion or ‘hunch,’ but to the
specific reasonable inferences which he is entitled
3
(...continued)
thus, did not violate the Fourth Amendment), we need not
address these “standing to challenge” issues.
8
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.
In Terry v Ohio, 392 US 1, 30-31; 88 S Ct 1868; 20 L Ed
2d 889 (1968), the United States Supreme Court held that in
certain circumstances a police officer may “stop” and briefly
detain a person consistently with the Fourth Amendment on the
basis of reasonable suspicion that criminal activity may be
afoot. Notably, “[t]he type of intrusion authorized by
[Terry] has been extended to permit investigative stops under
various circumstances . . . .” Nelson, at 631.
The facts of Terry are instructive. In that case, plain
clothes police detective Martin McFadden was assigned to
9
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:
“[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 corner, perhaps waiting for someone. Nor is
there anything suspicious about people in such
circumstances strolling up and down the street,
10
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 corner 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 corner; 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
least two black males4 indicated that its occupants were
4
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
(continued...)
11
consistent with the description of the suspected
perpetrators.5 Of course, that in itself would not provide
the particularized suspicion necessary for a valid
investigatory stop. See LoCicero, supra at 505.6
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
4
(...continued)
would have had two black male and two white male occupants, we
do not see any way that would alter the reasonable suspicion
analysis.
5
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.”
6
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 . . . .” Slip op,
p 11. 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.
12
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 him that they had not seen anyone go by in
that direction. He testified that he went to the Westbay
Apartments complex because that would have been an excellent
place to hide a getaway vehicle as the apartment complex
provided a secluded area to hide a car in contrast to the
parking lots of businesses near the bank.7 In this regard,
the fact that the car was leaving the apartment complex was
consistent with it being a getaway vehicle that was attempting
to leave the general vicinity of the crime. Thus, the
suspicion of Deputy Elder reasonably focused on the Westbay
Apartments. These deductions by Deputy Elder are particularly
entitled to deference because
[i]n analyzing the totality of the circumstances,
the law enforcement officers are permitted, if not
7
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.
13
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, accordingly, we defer to his substantial
experience as a law enforcement officer. LoCicero, supra at
501-502.
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
14
trafficking. When a four-car caravan of police cars8 entered
the area, the defendant looked in the direction of the
officers and fled, eventually running through a gangway and an
alley. Ultimately, police officers stopped the defendant and
conducted a patdown search for weapons, discovering a gun in
the bag. The United States Supreme Court held that there was
reasonable suspicion to support this investigatory stop in
light of the defendant’s presence in an area of heavy
narcotics trafficking, coupled with his unprovoked flight when
he noticed the police. In making this determination, the
Wardlow Court stated:
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.]
Further, in United States v Orozco, 191 F3d 578, 582 (CA 5,
1999), the Fifth Circuit United States Court of Appeals
approved consideration of the “overall behavior of the vehicle
driver,” including “the avoidance of eye contact” as one
factor that might be considered in determining whether there
was reasonable suspicion to support a traffic stop. Likewise,
8
The police cars were involved in an effort to
investigate drug transactions in the area.
15
we see no reason that the overall behavior of all occupants of
a car in seeming to avoid looking in the direction of a marked
police car cannot be considered as one factor in support of a
finding of reasonable suspicion. Accordingly, we believe that
Deputy Elder was entitled to rely on his perception that it
was unusual that the occupants of the Mercedes seemed to avoid
looking in his direction. As in Wardlow, we do not have, nor
have we been offered, the benefit of any empirical studies
rebutting Deputy Elder’s experience-based conclusion regarding
how people ordinarily react to marked police cars. Deputy
Elder’s observation that it was suspicious for all four
occupants of a car not to look at his passing police car does
not strike us as unreasonable. Indeed, it may well comport
with “commonsense.” Accordingly, we consider Deputy Elder’s
suspicion aroused by the occupants of the car not looking at
his patrol car to be one factor that is properly considered,
together with other factors such as the secluded nature of the
apartment complex and that the apartments were located within
a quarter mile of the bank, as supporting a finding of
reasonable suspicion in this case.9
9
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 pre-Wardlow
(continued...)
16
In addition to the foregoing, the route followed by the
Mercedes before the traffic stop provides another factor in
support of the existence of reasonable suspicion. The
Mercedes took a circuitous route to the intersection of Ganson
and Wisner Streets before the traffic stop was actually
effected.10 This is particularly suspicious because it
involved avoiding driving by the bank that had been robbed.
The most direct route to that intersection from the Westbay
9
(...continued)
decisions to be of little value in light of the recognition in
Wardlow that evasive conduct can be a factor supporting (or
even providing the primary basis for) an investigatory stop.
Moreover, we note that there are federal appellate decisions
that consider an apparent avoidance of eye contact as one
factor in support of a finding of reasonable suspicion. See,
e.g., United States v Brown, 188 F3d 860, 864-865 (CA 7, 1999)
(considering the defendant’s “unusually nervous demeanor,
including his failure to make eye contact” as one of “several
distinct articulable bases” for reasonable suspicion); United
States v Robinson, 119 F3d 663, 667 (CA 8, 1997) (concluding
that “the fact that [the defendant] appeared nervous and the
fact that he would not make eye contact” provided “[f]urther
justification” for a finding of reasonable suspicion). Of
course, none 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, but
merely that such apparent avoidance of eye contact can be one
factor that, together with others, may support a stop.
10
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.” Slip op, p 21. 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.
17
Apartments would have been east on North Street and then south
on Wisner Street to the intersection. This would have taken
the car past the bank at the intersection of North and Wisner
Streets. Instead, the car took a longer route by proceeding
west on North Street, then south on Brown Street, and finally
east on Ganson Street before reaching the intersection of
Ganson and Wisner Streets.
We recognize that the route followed by the Mercedes was
not mentioned in Deputy Elder’s testimony and evidently was
not subjectively relied on by the police in effecting the
traffic stop. Nevertheless, the location of the bank robbery
and the route followed by the Mercedes were obviously facts
known to the police before the traffic stop occurred. Thus,
these facts are appropriately considered in determining
whether there was reasonable suspicion to support the traffic
stop because, as this Court unanimously recognized in People
v Arterberry, 431 Mich 381, 384; 429 NW2d 574 (1988):
[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
18
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 the traffic stop;
(3) the car was occupied by individuals who comported with the
limited description that the officer had at his disposal; (4)
Deputy Elder had tentatively eliminated the direction north of
the bank as an escape route on the basis of the information he
received from the carpet store employees; (5) on the basis of
his familiarity with the area and experience with crimes of
this nature, Deputy Elder formed the reasonable and well
articulated hypothesis that the robbers had fled to the
secluded Westbay Apartments; (6) the deputy also reasonably
hypothesized on the basis of his experience that the robbers
would use a getaway car to try to escape from the area; (7)
Deputy Elder also reasonably inferred on the basis of his
19
experience that a driver would probably be at the getaway car
waiting for the actual robbers; (8) the behavior of each of
the car’s four occupants in seeming to avoid looking in the
direction of the deputy’s marked police car was atypical; (9)
the car was leaving the apartment complex, which is consistent
with it being a getaway car whose occupants were attempting to
leave the area; (10) the car followed a circuitous route that
avoided driving by the site of the bank robbery.11
The viewpoint of the dissent may best be summed up in its
statement that “in this case, the sum of zero suspicion and
zero suspicion is zero suspicion.” Slip op, p 19. Whatever
the obvious merits of this proposition, we respectfully
disagree that it bears any relevance to this case. The
factors that we have discussed above as supporting a finding
of reasonable suspicion were not each of “zero suspicion” in
themselves. Rather, as we have acknowledged, while the degree
11
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. Slip op, p 6. 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.
20
of suspicion from each of the factors in isolation may have
fallen short of providing reasonable particularized suspicion
to support the present traffic stop, that does not mean that
these factors properly considered in the aggregate would not
provide reasonable suspicion to support the stop under the
totality of the circumstances. The validity of such a
cumulative analysis, as we have discussed, is well established
in our law.
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 our
communities. “Terry accepts the risk that officers may stop
innocent people.” Wardlow, supra at 126.12 Indeed, the
possibility that innocent people will more than infrequently
be briefly detained during valid investigatory stops is
foreshadowed by guiding United States Supreme Court precedent,
given that the reasonable suspicion needed for such stops
“requires a showing considerably less than preponderance of
the evidence.” Id. at 123. As this Court explained in 1993
12
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.
21
in Nelson, supra at 632:
[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
22
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 stop
because there were innocent explanations for the conduct such
as dropping off a birthday card or stopping to say hello.
This Court pointedly stated that “[t]he question is not the
number of scenarios that the imagination can conjure, but the
degree of suspicion conferred on the seemingly legal conduct.”
Id. at 635. Accordingly, the existence of reasonable
suspicion in the present case is not negated by the ability to
imagine possible innocent explanations for the presence of the
Mercedes at the apartment complex and the actions of the car’s
occupants.
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
23
quarter mile) that was a logical hiding place.13 The occupants
of the car drew further suspicion on themselves by appearing
to a trained law enforcement officer to be evasive by
declining to look in the direction of his marked police car as
it passed close by the car. Finally, the car followed a
circuitous route that avoided the site of the bank robbery
before the traffic stop. While one or more of these factors
in isolation may not have constituted reasonable suspicion to
stop the car, under the totality of the circumstances, there
was reasonable suspicion to justify the traffic stop in this
case.
13
While not expressly stated, the dissent seems to
suggest that one of the reasons provided by Deputy Elder for
investigating the Westbay Apartment complex may have been that
“he knew blacks lived there.” See post at 10-12. 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 11. 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
his 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 circumstances
surrounding the occupants of the car that was stopped in this
case that provided reasonable suspicion for the present
traffic stop.
24
III. CONCLUSION
We conclude that, under the totality of the
circumstances, the police had the necessary reasonable
suspicion to justify the traffic stop underlying these
consolidated cases. Accordingly, we affirm the judgment of
the Court of Appeals in each case.14
CORRIGAN , C.J., and WEAVER , YOUNG , and MARKMAN , JJ., concurred
with TAYLOR , J.
14
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.
25
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 112341
JOEY DUANE OLIVER,
Defendant-Appellant.
_______________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 115064
ANTHONY DUANE TAYLOR,
Defendant-Appellant.
_______________________________
CAVANAGH, J. (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) evidence derived from the illegal stop is subject to
analysis under the exclusionary rule.
I
The issue in this case implicates the Search and Seizure
Clause of the Fourth Amendment of the United States
Constitution,1 which protects individuals against unreasonable
searches and seizures conducted by governmental actors. Whren
v United States, 517 US 806, 809-810; 116 S Ct 1769; 135 L Ed
2d 89 (1996). When a police officer detains, even
temporarily, the occupants of a vehicle, they have been
“seized” within the meaning of the Fourth Amendment. Delaware
v Prouse, 440 US 648, 683; 99 S Ct 1391; 59 L Ed 2d 660
(1979). Thus, the question becomes whether the seizure of the
defendants was constitutionally reasonable.
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,
1
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures shall not be
violated . . . .
2
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
activity by the particular person stopped. In other words, to
justify the seizure, the officer must act on more than an
“inchoate and unparticularized suspicion or hunch.” Terry v
Ohio, 392 US 1, 27; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
Instead, the officer must have at least “a particularized
suspicion, based on an objective observation, that the person
stopped has been, is, or is about to be engaged in criminal
wrongdoing.” People v Shabaz, 424 Mich 42, 59; 378 NW2d 451
(1985).
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.
3
II
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 opinion offers a
disentangled version of the underlying events in order to
separate the circumstances giving rise to Deputy Elder’s
suspicions from the conclusions he drew on the basis of those
factors. I find the distinction to be crucial, especially in
light of the majority’s conclusions that an officer’s
subjective deductions must be given special deference, and
that factors not articulated by the officer may factor into a
determination of whether a stop was objectively reasonable.
Given the tests offered by the majority, I believe that the
Court must distinguish which parts of Deputy Elder’s testimony
amount to facts and which parts compose the officer’s
articulated particularized reasonable suspicion. In addition,
4
the Court should recognize which factors were extrinsic to the
officer’s articulated basis for effectuating the stop.
Deputy Elder’s testimony in this case revealed the
following facts common to both Oliver and Taylor: (1) Deputy
Elder overheard a dispatch2 that an armed robbery had just
occurred at the Republic Bank and that two black male suspects
had been last seen heading north on foot; (2) Deputy Elder
spoke to two men outside a New York Carpet World, which was
located north of the bank, who indicated that they had seen no
one but some children across the street during the preceding
ten minutes; (3) Deputy Elder then decided to go to the
Westbay Apartments, which were located approximately one
quarter mile west of the bank; (4) Deputy Elder came upon four
black men in a car as they were exiting the Westbay Apartment
complex, approximately ten to fifteen minutes after hearing
the dispatch; (5) Deputy Elder had previously observed that
blacks lived at the Westbay Apartment complex; (6) according
to Deputy Elder, the car’s occupants did not look in the
direction of his patrol car when he passed within six to eight
feet of them; (7) Deputy Elder doubled back, began following
2
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.
5
the car, and radioed for back-up3; (8) while being followed by
Deputy Elder, the driver of the car drove cautiously and
obeyed all traffic laws; (9) while being followed by Deputy
Elder, the car drove west on one street, then turned south,
then turned east, and then turned south again before being
stopped.4
From these objective facts, Deputy Elder testified that
his experience as a police officer led him to deduce the
following: (1) that the Westbay Apartment 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
3
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.
4
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.
6
“circuitous” route while being tailed by Deputy Elder.
III
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
7
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 facts lead
them to reasonably believe that the occupants have
transgressed or will transgress some law.5
As a preliminary matter, it should also be recognized
that the majority had to deduce that the Westbay Apartment
complex was a reasonable place for Deputy Elder to look for
5
As we stated in Sitz 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 over
zealous 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.
8
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 Apartment 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 Apartment
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 parking lot.
Further, Jackson is a mid-sized city with a population over
37,000; it seems reasonable to infer that there could be
scores of places to hide a getaway vehicle. Additionally, ten
to fifteen minutes had passed before Deputy Elder arrived at
the Westbay Apartments. Given that the apartment complex was
located only a block away from the bank, the amount of time
that passed between when Deputy Elder received the dispatch
and the time he encountered the defendants was well beyond the
necessary time to escape. Thus, the passage of time made it
less likely that there was a connection between the robbery
and the presence of four black men.
Even assuming that it is appropriate to rely on the
deduction that the Westbay Apartment complex was a reasonable
9
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 indicates that he was
justified in stopping every grouping of black males in the
vicinity, or these black males in particular.
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
10
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 Apartment 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.6 This is especially true in
6
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,
Deputy Elder never indicated that he went to
the Westbay complex because “he knew from personal
experience that black individuals lived there.”
Post at 11. 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
(continued...)
11
light of the fact that the officer had absolutely no
description of the suspects’ size, age, or clothing.
Beyond the fact that the defendants were a group of black
men traveling together in a car near the location of the
robbery, Deputy Elder offered only two reasons for stopping
these defendants: they over-cautiously followed all traffic
laws, and they did not look at him when he drove by them. The
majority wisely has chosen not to place emphasis on the fact
that the defendants were obeying all traffic laws while being
followed by a police officer. On cross-examination, Deputy
Elder conceded that it is not unusual for persons followed by
a marked police car to drive cautiously. The trial judge also
found that the way the car was driven was not unusual, as an
average citizen would drive similarly.
6
(...continued)
looking for an apartment with his wife. [Slip op at
24-25.]
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.
12
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 potentially tends
to separate these particular defendants from the general
populace of black men. With regard to this observation, the
majority defers to Deputy Elder’s experience as a law
enforcement officer, and concludes that courts may consider
“evasive” behavior as a factor in determining whether
reasonable suspicion exists. I believe that the majority
places too much weight on this solitary factor, and I disagree
with the majority’s analysis in several regards.
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.” Slip op at 14. 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 slip op at
16, n 8, I believe that pre-Wardlow decisions are of great
13
value, and are more persuasive than the limited authority
offered by the majority.7
Second, while I agree that courts may consider an
officer’s years of experience when determining whether his
actions were reasonable, the majority overstates the degree of
deference that must be given to an experienced police
officer’s deductions. The majority relies in large part on
People v Nelson, 443 Mich 626; 505 NW2d 266 (1993). Though
Nelson did recognize that a certain degree of deference should
be given to officers who draw inferences based on experiences
with crimes occurring under similar circumstances or committed
by similarly situated defendants, see id. at 636, an officer’s
7
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)(the
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 fact that four men in a car failed to make
eye contact with an officer cannot justify an investigatory
stop); United States v Pacheco, 617 F2d 84, 87 (CA 5, 1980)(in
assessing reasonable suspicion for stopping a vehicle, “the
avoidance of eye contact can have no weight whatsoever”);
United States v Lamas, 608 F2d 547, 549-550 (CA 5,
1979)(“testimony that the occupants of a car avoided eye
contact with [the officer] as they passed” cannot weigh in the
balance whatsoever “because of the precarious position
travelers on our nation’s highways would be placed in if
avoiding eye contact with an officer could be considered a
suspicious reaction”).
14
bald assertion that a particular situation looks like a
criminal transaction to the officer is not enough to justify
a Fourth Amendment intrusion. People v LoCicero (After
Remand), 453 Mich 496, 506; 556 NW2d 498 (1996). Where an
officer institutes an investigatory stop that is based on a
mere hunch rather than reasonably articulated and
particularized facts, deference must be given to the
constitution in lieu of the officer’s years of experience.8
8
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.” Slip op at 22. 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
activity the police were watching for in fact occurred before
the time that the police stopped the defendants. In LoCicero
at 503, this Court noted Nelson’s observation that
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.
15
Even if Deputy Elder’s conclusion that it is unusual for
people to avoid looking at police is given a great deal of
weight as the majority suggests, his observation is
insufficient in and of itself to create reasonable suspicion
in this case. The majority correctly points out that it does
not 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, but merely that such apparent
avoidance of eye contact can be one factor that, together with
others, may support a stop.” Slip op at 17, n 8.
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.9 Similarly, the majority correctly
concludes that the fact that the defendants fit within the
description of possible suspects did not create particularized
reasonable suspicion.10 Additionally, I find nothing
9
[I]n itself, there is certainly nothing
suspicious about four men occupying a car that is
leaving an apartment complex. [Slip op at 11.]
10
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
(continued...)
16
particularly suspicious about the fact that the defendants
were leaving Westbay Apartments at the time Deputy Elder was
patrolling the area, especially in light of Deputy Elder’s own
testimony that it was not unusual for black men to be leaving
the complex.11 Similarly, I find nothing suspicious about the
10
(...continued)
course, that in itself would not provide the
particularized suspicion necessary for a valid
investigatory stop. [Slip op at 11-12.]
11
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
(continued...)
17
fact that the defendants were obeying all traffic laws.
Again, I would point out that even Deputy Elder’s testimony
indicated that it is not unusual for people to follow traffic
laws when followed by a marked police car. Once these clearly
nonsuspicious singular factors are subtracted from the list of
factors offered by Deputy Elder, all we are left with is the
fact that the defendants did not look at Deputy Elder’s patrol
car. I agree with the majority that taken alone, the failure
to look at a passing patrol car would not justify a traffic
stop.12 For these reasons, I would hold that Deputy Elder’s
decision to stop the defendants was not predicated upon
reasonable, articulable, and particularized suspicion.
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
11
(...continued)
limited. Instead, he was in an area where it was not unusual
to see black males.
12
[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 . . . . [Slip op at 17, n
8.]
18
suspicion. I would conclude that, in this case, the sum of
zero suspicion and zero suspicion is zero suspicion.13 In
reaching an opposite conclusion, the majority turns to the
facts of Terry, the original “stop and frisk” case. According
to the majority, “Terry illustrates how factors that in
isolation appear innocent may, in combination, provide a
police officer with reasonable suspicion to justify an
investigative stop . . . .” Slip op at 10. However, what the
majority fails to recognize is that in Terry, the police
officer observed particular individuals engaging in a series
of behaviors that the officer believed to be characteristic of
defendants preparing to commit a robbery. In the present
case, Deputy Elder’s first glance of the defendants was at the
moment he observed them pulling out of the parking lot at the
Westbay Apartments. While he may have had a reason for
heading toward the apartment complex, any deductions the
officer made before encountering our defendants pertained to
suspects in general and added nothing to the determination of
whether these particular defendants had been or were about to
be engaged in criminal wrongdoing as required by the Fourth
Amendment. Thus, I believe the majority makes a fundamental
13
Though the majority attempts to assert otherwise, the
simple fact remains that nothing in the majority opinion shows
that our particular defendants were any more suspicious than
any other black men who would have been leaving the Westbay
Apartments together.
19
error.
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 a
significant level of suspicion is objectively raised by the
fact that a car full of persons being tailed by a police
officer who doubled back to follow them choose not to drive
the most direct route between two points along the path to an
unknown destination. First of all, the officer’s suspicions
were apparently aroused before he decided to follow the
defendants, as indicated by his decision to double back and
follow them. Moreover, it is impossible to say that the
“route” they 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
20
necessary between two points. Moreover, it is entirely
plausible that an innocent defendant would change course,
hoping that the police officer would continue in another
direction. Further, it is possible that a driver with a car
full of passengers might be distracted in conversation, and
travel in a direction he might not otherwise. If we are to
look at the objective circumstances of this case, without
regard to the officer’s subjective state of mind, then we must
consider not only factors indicative of guilt, but also other
possible innocent explanations for the defendants’ behavior.
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 criminal 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 such, the fruits of the illegal stop are subject to an
exclusionary rule analysis.
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
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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.14 Given the illegality of the stop, the
exclusionary rule would be directly implicated. I would,
therefore, reverse and remand for a determination of whether
the “fruit” of the illegal stop came about by any legitimate,
distinguishable means that would purge the taint of this
unlawful seizure.
KELLY , J., concurred with CAVANAGH , J.
14
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.
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