People v. Lambert

Sawyer, J.

(concurring). While I agree with the majority’s conclusion, I disagree with the path they take in reaching that conclusion. Specifically, I believe the Terry1 stop was proper.

This case presents an intriguing question concerning the authority of the police to stop a person in an automobile, not because they suspect the person of being involved in a crime, but in order to determine if that person has any information which may assist them in a criminal investigation. While this question is interesting, it is not necessary to resolve it in this case because I believe that, even if the police lacked that authority, the initial stop of defendant in the case at bar by the deputies was proper. Accordingly, I will assume, without deciding, that the police lack the authority to pull over a motor vehicle for the purpose of determining if the occupants of that vehicle have information relevant to a criminal investigation. Thus, under this assumption, the initial decision by the deputies to stop defendant’s van to determine if the occupants of the van had information relative to the breaking and entering, such as *621seeing another vehicle on the road, would be improper.

While, under this assumption, the deputies’ initial decision to stop defendant’s van was improper, thus normally leading to the conclusion that the seizure of the evidence was tainted, I believe that defendant’s subsequent actions created a reasonable suspicion to permit the deputies to make a Terry stop. While the deputies may have had a constitutionally malignant motive in deciding to turn their vehicle around and follow defendant, their initial actions had not yet transgressed defendant’s constitutional rights. That is, regardless of their motivation, the deputies were lawfully and constitutionally permitted to stop their cruiser and turn it around and begin to drive in the opposite direction on a public road. It is important to note that the deputies had not yet at this point turned on their overhead lights to signal defendant to stop. Before the officers took any action to direct defendant to stop his van, defendant accelerated away from the police vehicle and the deputies gave chase before activating their overhead lights, thus indicating to defendant to stop his vehicle.

The events leading up to the stopping of defendant’s vehicle were described by Deputy Kowalkowski at the suppression hearing as follows:

Q. What did you do when you encountered this van?
A. Well, the van was going south on Madison Road as we were going north from the scene. I told Deputy Cermak that we hadn’t seen anything so let’s stop that van, see if the driver has seen any vehicles in the area.
Q. Were you in Manistee County at the time you first saw this van?
A. Yes, sir.
Q. Did you attempt to stop it?
*622A. We turned around..He had gone past us to the south. We turned around and we were in the process of catching up to the van. We were accelerating quite rapidly and we were not catching up to the van. He was still in Manistee County, that stretch of road is. I would have to get a map out but I would guess we were a mile and a half frpm the county line or two miles at that point because we were north of the Nine Mile Bridge then.
Q. What did this van do as you attempted to catch up to it.
A. Well, it accelerated. I was driving the car and I was trying to catch up and I saw I wasn’t catching up to him and I turned and asked Doug if he was — if he believed that the van was accelerating and he said yes.
Q. Continue, please.
A. Well, Deputy Cermak believed the van was accelerating, too. He told me that. Madison Road ends at — well, it doesn’t end at the county line but where the Manistee County line ends or where I believe it ends the county line road crosses that intersection and goes east. The van we were pursuing turned east onto the county line road. If it has a name, I don’t know what it is. That is a dirt road that is unimproved and it has several big curves in it. We turned the corner behind the van and caught up to it about a quarter of a mile down the road. We activated our overhead lights to get him to stop a quarter of a mile to a half mile to get him to stop and he pulled over, not immediately, but he continued on down the road a little ways and then he pulled over.

I believe that defendant’s actions in attempting to evade the deputies, for no apparent objective reason, gave the deputies reasonable suspicion to pull defendant over. That is, even if the deputies’ original decision to stop the van to determine if its occupants had any information concerning the crime was improper, defendant’s subsequent eva*623sive actions prior to the deputies’ being able to effectuate the plan transformed what originally might have been an illegal stop into a legal stop. Simply put, defendant’s actions created an intervening probable cause (or reasonable suspicion) to elevate the stopping of defendant to constitutionally permitted status.2

What remains to be analyzed, however, is the question of the permissibility of a Terry stop based solely upon defendant’s evasive action after encountering a sheriff’s cruiser. The leading case in this area, upon which defendant places a great deal of reliance, is People v Shabaz, 424 Mich 42; 378 NW2d 451 (1985), cert gtd 475 US 1094 (1986), dismissed as moot 478 US 1017 (1986). In Shabaz, supra at 62, the Michigan Supreme Court concluded that the defendant’s flight, by itself, in the circumstances of that case, did not support reasonable suspicion:

Defendant’s flight at the approach of police did not, by itself, in the circumstances of this case, support a reasonable suspicion. Although it is uncontroverted that flight may be a factor to be considered in ascertaining whether there is reasonable suspicion to warrant a Terry stop, United States v Sharpe [470 US 675; 105 S Ct 1568; 84 L Ed 2d 605 (1985)]; United States v Brignoni-Ponce [422 US 873; 95 S Ct 2574; 45 L Ed 2d 607 (1975)], flight alone is not a reliable indicator of guilt without other circumstances to make its import less ambiguous. United States v Green [216 US *624App DC 329, 333; 670 F2d 1148 (1981)]; People v Tebedo, 81 Mich App 535; 265 NW2d 406 (1978).

The Supreme Court clearly stopped short of concluding that flight cannot be the basis of reasonable suspicion to warrant a Terry stop. Rather, the totality of the circumstances must be considered. Shabaz, supra at 62. In Shabaz, two plainclothes undercover officers in an unmarked vehicle in a high-crime area of Detroit observed the defendant carrying a small brown paper bag while walking along a public street. The unmarked police car began moving toward the defendant, at which time he stuffed the bag under his clothes. The car passed the defendant and then came to a complete stop, at which point the defendant took off running. The officers then apprehended defendant and retrieved the bag, which contained a revolver. The Supreme Court concluded that the officers did not have any reasonable suspicion to warrant a Terry stop.

Among the factors considered by the Shabaz Court was the fact that the officers had not identified themselves to the defendant as police officers and that the defendant’s conduct was not necessarily inculpatory in the light of the circumstances under which it occurred. In essence, the Supreme Court pointed out that, based upon the information available to the officers, there could be a reasonable explanation of the defendant’s conduct which was consistent with his innocence. That is, the defendant behaved in the same manner that one could reasonably expect an innocent citizen to behave if he was carrying valuable property in the brown paper bag in a high crime area and noticed that he was being observed by two strange individuals in an unmarked vehicle. The defendant in Shabaz could have, for instance, been merely pro*625tecting himself from a potential mugging as far as the police were aware.

The case at bar is distinguishable from the situation in Shabaz in a number of important points. First, nothing in the record suggests that the area in which defendant was pulled over constitutes a high-crime area. Second, although it is not entirely clear from the record, it would appear that the deputies were on road patrol when they responded to the silent alarm and, therefore, it can be assumed that they were in a fully marked police cruiser when they pulled defendant over.3 Third, defendant’s van was the only vehicle in the area. Finally, the officers in Shabaz were not aware that any crime had been committed and were on patrol when the defendant aroused their suspicions; in the case at bar, the deputies were investigating a crime which had occurred in the area shortly before spotting defendant’s van.

Thus, while it is conceivable that the defendant in Shabaz could have been a cautious citizen worried that he was about to be mugged by the two unidentified individuals he saw observing him, defendant in the case at bar had no such worries since he was not in a high-crime area and since his followers were identifiable as police officers. Similarly, defendant in the case at bar was traveling in a motor vehicle and, therefore, would be less vulnerable to a criminal attack than the defendant in Shabaz, who was on foot. Finally, I note that defendant began to run from the officers as soon as he sighted them. That is, from defendant’s perspective, at the time he began to run there was no reason for him to believe that the officers were not *626proceeding upon their ordinary business. The deputies had merely turned their car around and began to proceed down the road in the same direction as defendant and had not yet turned on their overhead lights to signal defendant to stop. As far as defendant would know, the deputies could have turned around because they had received a radio call to go to a location in the opposite direction, because it was nearing the end of their shift and they wished to proceed back to the sheriffs station or, for that matter, because they had decided to enjoy a morning cup of coffee and a donut at a restaurant in the opposite direction from which they had been traveling. Since the deputies had not made any significantly threatening conduct towards defendant, I believe the deputies could conclude that defendant began his flight out of a sense of guilt rather than a sense of innocence. Simply put, unlike the officers in Shabaz, I believe the deputies in the case at bar could reasonably become suspicious, in light of the surrounding circumstances, at defendant’s conduct of attempting to flee from the deputies as soon as he noticed them following him.

For the above reasons, I conclude that the deputies in the case at bar had a reasonable suspicion that defendant was somehow involved in a criminal enterprise sufficient to warrant a Terry stop. Accordingly, defendant’s theory that the deputies’ subsequent search of his van, done with his permission, was tainted as the fruit of the poisonous tree, is without merit. Thus, the trial court correctly denied defendant’s motion to suppress the evidence of the search.

With respect to defendant’s other argument on appeal, concerning the admissibility of statements made to the police, I agree with the majority’s analysis of that issue.

I, too, would affirm.

Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).

An analogous situation might be where an officer intends to go to a house and enter without a warrant to conduct a patently illegal search. However, upon arriving at the house, but before being able to enter the house and violate the suspect’s rights, the suspect appears at the front door of the house, pulls a gun and fires at the officer. The officer then chases the suspect back into the house where he manages to effectuate an arrest. While the officer may have been in the initial stages of a constitutionally repugnant action, the suspect’s conduct prior to the actual violation of his constitutional rights gave authority for the officer’s subsequent actions.

This assumption is buttressed by the fact that the deputies turned on their overhead lights at one point during the chase to signal defendant to stop. I believe that it can be safely assumed that, had the deputies been in an unmarked vehicle, there would have been no overhead lights to turn on.