People v. Nelson

Cavanagh, C.J.

(dissenting). In this case we are presented with the issue whether the trial court properly granted the defendants’ motion to suppress evidence. A trial court’s ruling on a motion to suppress evidence is entitled to deference and is not to be disturbed unless clearly erroneous. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). Because the trial court’s decision to suppress the evidence was not clearly erroneous, I would affirm the decision of the Court of Appeals.

*640I

In Terry v Ohio, 392 US 1, 30; 88 S Ct 1868; 20 L Ed 2d 889 (1968), the United States Supreme Court recognized the constitutionality of what has become known as a "Terry” stop. Under the rule announced, an officer may temporarily detain a person when the officer has an articulable, reasonable suspicion that the defendant is involved, or about to be involved, in criminal activity. The great debate over the circumstances that permit a finding of reasonable suspicion continues, despite the rule’s twenty-five year history. While a concrete definition has yet to emerge, the basic guidelines, as announced in Terry, remain instructive:

[I]n making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief” that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulable hunches, a result this Court has consistently refused to sanction. And simple " 'good faith on the part of the arresting officer is not enough.’ ... If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be 'secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” [id. at 21-22. Citations omitted.]

The continued requirement for a valid "Terry” stop is that the police must possess an articulable, reasonable suspicion that criminal activity is afoot. See United States v Sutton, 794 F2d 1415, 1426 (CA 9, 1986). An "inchoate” or "unparticularized suspicion or hunch” is not sufficient to provide the *641basis for a reasonable suspicion. United States v Sokolow, 490 US 1, 7; 109 S Ct 1581; 104 L Ed 2d 1 (1989). "[A]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” Sutton at 1426. In evaluating the validity of an alleged "Terry” stop, courts must consider the totality of the circumstances and supported, reasonable inferences. Sokolow at 8.

II

I would hold that the trial court properly concluded, under the totality of the circumstances, that the police lacked reasonable suspicion when they stopped the defendants.

A

Contrary to the state’s assertion, the defendants’ visit to an alleged "crack house,”1 without addi*642tional questionable conduct by the defendants, does not provide a sufficient basis for a determination of reasonable suspicion. In People v Shabaz, 424 Mich 42, 60-61; 378 NW2d 451 (1985), this Court held that the defendant’s presence in a high-crime neighborhood and departure from an apartment building where previous concealed-weapons and narcotics arrests had been made did not provide the basis to formulate a reasonable suspicion.2 While the majority goes to great lengths to factually distinguish the case at bar from Shabaz, I believe the basic principle remains — the departure from a known or suspected criminal location, without more, does not transform a person into a criminal, providing the basis for reasonable suspicion. See also Ybarra v Illinois, 444 US 85; 100 S Ct 338: 62 L Ed 2d 238 (1979).3

*643Admittedly, under the above-stated principle, a finding of reasonable suspicion would be warranted if the defendants had acted evasively or suspiciously. According to the prosecutor, the defendants’ brief visit to the residence warranted their detention because brief visits are indicative of illegal drug transactions. Our holding in Shabaz is once again instructive.

In Shabaz, this Court held that the defendant’s departure from an apartment complex, the scene of past criminal activity, coupled with the stuffing of a brown paper bag in his pants and his flight upon observing undercover officers watching him, did not provide a sufficient basis for a finding of reasonable suspicion. The Court stated that the defendant’s attempt to conceal the brown paper bag, by itself, did not provide grounds for a stop. The Court reasoned that the bag could have contained one of a number of lawful items or contraband.

It is precisely because the officers could only speculate about the contents of the bag that they had no reasonable or articulable basis to conclude what its contents were.
Because the police could only guess about what defendant was seeking to hide, their speculation did not provide a particularized suspicion of possessory wrongdoing, but only a generalized one. [Shabaz at 61.]

Similarly, the police, in the case at bar, could only *644guess or speculate regarding the nature of the defendants’ brief visit. Because the police could only speculate, they lacked an articulable, reasonable suspicion to believe that the defendants were involved in criminal activity.

According to the arresting officers, the only overt act by the defendants providing the basis for their detention was the defendants’ brief visit to the residence. The defendants made no gestures indicative of criminal conduct or movements that could suggest an attempt to conceal contraband. Once in their vehicle the defendants did not drive erratically or otherwise fail to comply with the motor vehicle code. In short, the police knew nothing in particular about the defendants except that they briefly visited a residence suspected of drug activity. When reviewing the constitutionality of an alleged "Terry” stop, the observed acts, under the totality of the circumstances

must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. [Emphasis added.] Chief Justice Warren, speaking for the Court in Terry v Ohio, supra, said that "[t]his demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” [United States v Cortez, 449 US 411, 418; 101 S Ct 690; 66 L Ed 2d 621 (1981). Emphasis in original.]

The facts observed by the Jackson police failed to provide a specific basis for concluding that the defendants were engaged, or were about to engage, in criminal activity. Because the police could not form a reasonable suspicion, the defendants’ privacy interest under the Fourth Amendment outweighs the governmental interest at stake.

*645III

"If, upon our review of the record, we do not possess a definite and firm conviction that the trial court made a mistake, we must affirm.” Burrell at 449. A review of the record supports the trial court’s conclusion that the police lacked reasonable suspicion, rendering the detainment of the defendants unconstitutional. Accordingly, I would affirm the determination to suppress the evidence.

Levin, J., concurred with Cavanagh, C.J.

Furthermore, I am not convinced that the facts presented support the conclusion that 515 Oak Street was a typical "crack house.” As the trial court correctly noted, 515 Oak Street was a residence with furniture and the amenities generally found in a home. A family occupied the home, characteristics that are inconsistent with the profile of a typical "crack house.” For this reason, we can assume visitors occasionally came to the premises for legitimate reasons.

The police failed to search Gibson, the third party who allegedly purchased cocaine from 515 Oak Street. Thus, one could only speculate regarding the true vendor of the cocaine — Gibson or the occupant of the home. The police did not know Gibson and could not credibly vouch for his reliability.

"[T]he evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” [People v Shabaz, 424 Mich 42, 55; 378 NW2d 451 (1985).]

Officers versed in the field of law enforcement know that informants must be reliable. They routinely search informants used in drug purchases, regardless of their past reliability, to provide support and credibility to the investigation. While the police identified and acted on the need to search the known, reliable informant and her vehicle, *642the police did not have the opportunity to search Gibson. The police were fully aware of the necessity for such precautions, yet the police disregarded established procedure and drew conclusions on the basis of representations made by an unknown, uninformed, unsearched third party. This Court should not reward careless police work by allowing it to justify intrusions on the Fourth Amendment rights of the citizens of the State of Michigan.

While the crime rate in a neighborhood may be a valid consideration to be taken into account when assessing reasonable suspicion, that alone would not establish the grounds for an investigatory stop. Defendant’s presence in a high-crime neighborhood does nothing to distinguish him from any number of other pedestrians in the area. It provides no particular reasonable basis for suspicion as to the activity of the defendant. The same must be said for his emergence from an apartment building known to the police to be the site of previous criminal activity. It cannot reasonably be concluded that everyone seen carrying a small paper bag, entering or leaving an apartment building where previous concealed-weapons and narcotics arrests have been made, is likely to be involved in such activity. [Id. at 60-61. Citations omitted.]

This conclusion is supported by the Minnesota Supreme Court decision State v Dickerson, 481 NW2d 840, 843 (Minn, 1992), aff’d on other grounds 508 US —; 113 S Ct 2130; 124 L Ed 2d 334 (1993). The court stressed that the defendant’s evasive conduct combined with his departure from a high-crime building justified a finding of reasonable suspicion.

*643We have held that one circumstance giving rise to reasonable suspicion is evasive conduct. As the court of appeals and the defendant correctly point out, merely being in a high-crime area will not justify a stop. But defendant’s evasive conduct after eye contact with police, combined with his departure from a building with a history of drug activity, justified police in reasonably suspecting criminal activity. [Citations omitted.]