People v. Jenkins

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED FEBRUARY 1, 2005

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 125141

SHAWN LEON JENKINS,

Defendant-Appellee.

_______________________________

PER CURIAM.

This case requires us to consider when defendant’s

consensual encounter with a police officer was transformed

into an investigatory stop, which gives rise to Fourth

Amendment protections and must be supported by reasonable

suspicion. Defendant argues that the officer seized him

without reasonable suspicion to do so. The trial court

agreed, granting defendant’s motion to suppress the

incriminating evidence later found by the officer and

dismissing the pending charges. The Court of Appeals

affirmed.
We conclude that defendant was not “seized” within

the meaning of the Fourth Amendment until after the

totality of the circumstances gave the officer a

reasonable suspicion that defendant had been engaged in

criminal behavior. Accordingly, the trial court erred when

it granted defendant’s motion. We reverse the judgment of

the Court of Appeals and remand this case to the trial

court for reinstatement of the charges brought against

defendant and for further proceedings.

I. BACKGROUND

During the evening of August 23, 2001, the Ann Arbor

Police Department received a complaint regarding a party in

progress in the common area of a housing complex on North

Maple Road. Officers Geoffrey Spickard and Jeff Lind were

dispatched to the housing complex, which was known to the

police as a high crime and drug area. Upon their arrival,

they found a gathering of fifteen to twenty people drinking

and talking loudly. Defendant and another man were seated

on stairs leading to one of the housing units.

Officer Spickard approached defendant, and the two

engaged in a general conversation about the party. At that

point, a woman emerged from the attached housing unit and,

using profane language, asked defendant who he was and why

he was seated on her porch. After hearing this, Officer

Spickard asked defendant if he lived in the housing

complex. Defendant said that he did not, and Officer

Spickard asked to see defendant’s identification. When

defendant handed over his state identification card,

Officer Spickard pulled out his personal radio and started

to place a call to the Law Enforcement Information Network

(LEIN).

Defendant’s behavior immediately changed.1 He became

obviously nervous and made furtive gestures toward a large

pocket on the side of his pants. He began to walk away,

despite the fact that Officer Spickard still held his

identification card and was speaking to him.2 Several

residents of the housing complex called out invitations for

defendant to enter their homes.

1
The dissent fails to note these changes in
defendant’s behavior. Post at 5-6. The dissent may view
these facts as irrelevant but, when the governing Fourth
Amendment principles are correctly applied, these changes
in defendant’s behavior support the officers’ ultimate
decision to seize the defendant.
2
This fact is also omitted from the dissent’s
analysis. Thus, while the dissent concludes that no
reasonable person would walk away under the circumstances,
post at 8, this view was obviously not shared by the
defendant, who walked away “under those circumstances.”

That Justice CAVANAGH finds our reference to the record
“enigmatic[]” and “befuddl[ing],” post at 9 n 10,
demonstrates the dissent’s belief that we are entitled to
rewrite the events underlying this appeal with an
unrealistic legal formalism. It is only with a lawyer’s
armchair detachment that the dissent can hypothesize about
what a “reasonable person” would do while ignoring the
actions of the individual who actually observed the
officers’ conduct and whose liberty was actually at stake.
3
At that point, Officer Spickard and his partner walked

alongside defendant, encouraging him to wait for the

results of the LEIN inquiry. When defendant did not stop,

Officer Spickard placed a hand on defendant’s back and told

him that he was not free to leave.

The LEIN inquiry revealed an outstanding warrant for

defendant’s arrest. As Officer Spickard was placing

defendant in handcuffs, a gun fell from defendant’s

waistband to the ground.

II. PROCEDURAL HISTORY

Defendant was charged with carrying a concealed

weapon, MCL 750.227; possession of a firearm by a felon,

MCL 750.224f; and possession of a firearm during the

commission of a felony (felony-firearm), MCL 750.227b. He

moved to suppress the evidence on Fourth Amendment grounds

and sought dismissal of the charges.

The trial court held an evidentiary hearing at which

both Officer Spickard and defendant testified. The trial

court considered Officer Spickard’s testimony and

determined that, for purposes of the Fourth Amendment,

defendant was "seized" when he was asked for

identification. In reaching this conclusion, the trial

court relied on Officer Spickard’s testimony that he

believed that defendant was not free to leave at that

point. The trial court concluded that the officer did not

have a reasonable suspicion to support such an

investigative stop. It granted defendant’s motion to

suppress evidence and dismissed the case.

A divided Court of Appeals panel affirmed.3 The

majority agreed with the trial court that Officer Spickard

seized defendant when he asked defendant for

identification.4 It concluded that the seizure was not

supported by a reasonable suspicion because defendant was

seated in a public area, was not engaged in the conduct for

which the officers were summoned, and ”forthrightly”

answered the officer’s questions. As a result, the

majority held that defendant’s Fourth Amendment rights were

violated and that the trial court properly granted

defendant’s motion to suppress the evidence.

The dissenting judge, on the other hand, determined

that the initial encounter, including Officer Spickard’s

request for defendant’s identification, did not constitute

an investigatory stop. The dissent further concluded that

subsequent events gave rise to a reasonable suspicion of

possible criminal activity and entitled Officer Spickard to

transform the encounter into an investigatory stop.

3
Unpublished opinion per curiam, issued November 18,
2003 (Docket No. 240947).
4
The majority criticized the trial court’s reliance on
Officer Spickard’s subjective belief that defendant was not
free to leave once he had been asked to produce
identification, but concluded that there was objective
evidence as well to support this conclusion. We disagree.
5
The prosecutor seeks leave to appeal in this Court.

After hearing oral argument from both parties on the

prosecution’s application for leave to appeal, we have

determined that the judgment of the Court of Appeals must

be reversed and that this matter must be remanded to the

trial court for reinstatement of the charges against

defendant and further proceedings.

III. STANDARD OF REVIEW

This Court reviews a trial court’s factual findings in

a suppression hearing for clear error. People v Custer,

465 Mich 319, 325-326; 630 NW2d 870 (2001). But the

“[a]pplication of constitutional standards by the trial

court is not entitled to the same deference as factual

findings.” People v Nelson, 443 Mich 626, 631 n 7; 505

NW2d 266 (1993). Application of the exclusionary rule to a

Fourth Amendment violation is a question of law that is

reviewed de novo. Custer, supra at 326.

IV. ANALYSIS

The United States Constitution and the Michigan

Constitution guarantee the right of persons to be secure

against unreasonable searches and seizures. US Const, Am

IV; Const 1963, art 1, § 11.5

Under certain circumstances, a police officer may

approach and temporarily detain a person for the purpose of

5
Cf. Harvey v Michigan, 469 Mich 1, 6 n 3; 664 NW2d
767 (2003).
6
investigating possible criminal behavior even though there

is no probable cause to support an arrest. Terry v Ohio,

392 US 1, 22; 88 S Ct 1868; 20 L Ed 2d 889 (1968). A brief

detention does not violate the Fourth Amendment if the

officer has a reasonably articulable suspicion that

criminal activity is afoot. Custer, supra at 327; People v

Oliver, 464 Mich 184, 192; 627 NW2d 297 (2001); Terry,

supra at 30-31. Whether an officer has a reasonable

suspicion to make such an investigatory stop is determined

case by case, on the basis of an analysis of the totality

of the facts and circumstances. Oliver, supra at 192. A

determination regarding whether a reasonable suspicion

exists “'must be based on commonsense judgments and

inferences about human behavior.'” Id. at 197 (citation

omitted).

Of course, not every encounter between a police

officer and a citizen requires this level of constitutional

justification. A “seizure” within the meaning of the

Fourth Amendment occurs only if, in view of all the

circumstances, a reasonable person would have believed that

he was not free to leave.6 People v Mamon, 435 Mich 1, 11;

6
Justice CAVANAGH recognizes that this inquiry is an
objective one, but asserts that “an officer’s subjective
intent is relevant to the extent that it may have been
conveyed to the defendant by the words or actions of the
officers.” Post at 8. Justice CAVANAGH relies on a
proposition that secured only two votes in United States v
Mendenhall, 446 US 544, 554 n 6; 100 S Ct 1870; 64 L Ed 2d
7
457 NW2d 623 (1990). When an officer approaches a person

and seeks voluntary cooperation through noncoercive

questioning, there is no restraint on that person’s

liberty, and the person is not seized. Florida v Royer,

460 US 491, 497-498; 103 S Ct 1319; 75 L Ed 2d 229 (1983)

(plurality opinion).

Here, Officer Spickard’s initial encounter with

defendant was consensual. Officer Spickard did not seize

defendant when he asked whether defendant lived in the

housing complex, nor did he seize defendant when he asked

for identification. No evidence indicated that Officer

Spickard told defendant at this juncture to remain where he

was or that defendant was required to answer the officer's

questions.

Asking such questions to elicit voluntary information

from private citizens is an essential part of police

investigations. Hiibel v Sixth Judicial Dist Court of

497 (1980). Also, he appears to misunderstand the meaning
of this passage. Mendenhall simply recognizes that an
officer’s subjective intent may be relevant if it is
objectively manifested. In other words, it restates the
principle that only objective conduct and circumstances are
relevant for Fourth Amendment purposes.

The dissent errs, therefore, by asserting that Officer
Spickard’s subjective beliefs are relevant without
determining whether those subjective beliefs were, in fact,
objectively manifested. Instead, the dissent “presume[s]”
that the officer’s beliefs were apparent to defendant.
Post at 10. Assuming arguendo that we are entitled to
insert our presumptions into the record, Justice CAVANAGH’s
presumption is disproved by the fact that defendant himself
walked away from the officers during the LEIN check.
8
Nevada, 542 US __; 124 S Ct 2451; 159 L Ed 2d 292 (2004).

“In the ordinary course a police officer is free to ask a

person for identification without implicating the Fourth

Amendment.” 542 US ___; 124 S Ct 2458; 159 L Ed 2d 302;

see also Royer, supra at 501. As the United States Supreme

Court has recognized, “[w]hile most citizens will respond

to a police request, the fact that people do so, and do so

without being told they are free not to respond, hardly

eliminates the consensual nature of the response.”

Immigration & Naturalization Service v Delgado, 466 US 210,

216; 104 S Ct 1758; 80 L Ed 2d 247 (1984).

This summary of governing Fourth Amendment principles

demonstrates that the Court of Appeals majority erred when

it analyzed the initial conversation between Officer

Spickard and defendant, and Officer Spickard’s request for

identification, as if the protections of the Fourth

Amendment were implicated. The Fourth Amendment was not

implicated until Officer Spickard actually hindered

defendant’s attempt to leave the scene, thereby “seizing”

him within the meaning of the Fourth Amendment.

Specifically, this “seizure” occurred when Officer Spickard

followed defendant as he tried to walk away, orally

discouraged him from leaving, and, finally, put a hand on

his back and told him to wait for the results of the LEIN

inquiry. This point—when Officer Spickard physically

hindered defendant’s departure and instructed him to stay

in the officer’s presence—is the earliest at which a

reasonable person might have concluded that he was not free

to leave.

By this point, however, Officer Spickard had a

reasonable suspicion to make an investigatory stop. First,

the officer knew that a female resident had challenged

defendant’s unconsented-to presence on her front porch.

Second, when defendant saw that Officer Spickard was

initiating a LEIN inquiry, he immediately began to act

nervously and reached toward his pocket.7 Third, defendant

attempted to walk away from the officer, apparently so

intent on leaving that he was willing to lose possession of

his identification card.8 Fourth, although defendant did

not live in the area, various people invited him into

their homes, offering him protection from further police

questioning.9 Considering the totality of these

7
This Court and the United States Supreme Court agree
that “'nervous, evasive behavior is a pertinent factor in
determining reasonable suspicion.'” Oliver, supra at 197,
quoting Illinois v Wardlow, 528 US 119, 124; 120 S Ct 673;
145 L Ed 2d 570 (2000).
8
Presence in a high crime area coupled with unprovoked
flight can also give rise to a reasonable suspicion to
support an investigatory stop. Oliver, supra at 197.
9
An experienced officer could infer that these
bystanders had reason to know that defendant desired to
avoid further police scrutiny. This inference adds to the
quantum of evidence supporting the conclusion that Officer
Spickard had reasonable suspicion to detain defendant.
10
circumstances, Officer Spickard had a reasonable suspicion

sufficient to warrant transforming the consensual encounter

into an investigatory stop and briefly detaining defendant

until the LEIN inquiry could be completed.

V. CONCLUSION

The Court of Appeals erred when it affirmed the trial

court’s conclusion that defendant’s Fourth Amendment rights

were violated and that the incriminating evidence produced

by the investigative stop in this case should be

suppressed. We reverse the judgment of the Court of

Appeals and remand this case to the trial court for

reinstatement of the charges against defendant and for

further proceedings consistent with this opinion.

Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 125141

SHAWN LEON JENKINS,

Defendant-Appellee.

_______________________________

CAVANAGH, J. (dissenting).

Despite recognizing that a police officer must have a

reasonably articulable suspicion that criminal activity is

afoot before detaining a person, today’s majority

incorrectly identifies the point at which defendant was

seized to justify a detention based on suspicions formed

after the detention occurred. Because defendant was seized

without reasonable suspicion, and because the Fourth

Amendment expressly prohibits using after-acquired

suspicions to justify a seizure, Florida v JL, 529 US 266,

271-272; 120 S Ct 1375; 146 L Ed 2d 254 (2000), I

respectfully dissent.

The Search and Seizure Clause of both the United

States Constitution and the Michigan Constitution1 protects

1
US Const, Am IV; Const 1963, art 1, § 11.
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);

People v Shabaz, 424 Mich 42, 52; 378 NW2d 451 (1985).

Before detaining an individual, a police officer must have

a particularized and objective basis for suspecting

criminal activity by the particular person detained.

Shabas, supra at 59. An “inchoate and unparticularized

suspicion or ‘hunch’” is an insufficient basis for seizing

a person. Terry v Ohio, 392 US 1, 27; 88 S Ct 1868; 20 L

Ed 2d 889 (1968). Rather, 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.” Shabaz, supra

at 59. “As long as the person to whom questions are put

remains free to disregard the questions and walk away,”

there has been no Fourth Amendment violation. United

States v Mendenhall, 446 US 544, 554; 100 S Ct 1870; 64 L

Ed 2d 497 (1980). But at the moment that person is

restrained, he is seized. Terry, supra at 16.

Generally, “‘a person has been “seized” within the

meaning of the Fourth Amendment only if, in view of all the

circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave.’”

California v Hodari D, 499 US 621, 627-628; 111 S Ct 1547;

113 L Ed 2d 690 (1991), quoting Mendenhall, supra at 554.

Where a seizure by show of authority is alleged, rather

than a seizure by physical force, the test “is an objective

one: not whether the citizen perceived that he was being

ordered to restrict his movement, but whether the officer’s

words and actions would have conveyed that to a reasonable

person.” Hodari D, supra at 628.

Interestingly, the majority concludes that defendant

was not seized until the officers physically restrained

defendant after he tried to walk away. But the majority

ignores that a seizure can also occur by a police officer’s

show of authority. The majority states, “When an officer

approaches a person and seeks voluntary cooperation through

noncoercive questioning, there is no restraint on that

person’s liberty, and the person is not seized.” Ante at

8-9, citing Florida v Royer, 460 US 491, 497-498; 103 S Ct

1319; 75 L Ed 2d 229 (1983). I agree that the initial

questioning and the officers’ request to see defendant’s

identification were part of a consensual citizen-police

encounter. But the majority fails to address the next

critical event—the LEIN2 check—and instead jumps to events

that occurred while the LEIN check was in progress.

On the evening in question, Officer Geoffrey Spickard

and his partner responded to an Ann Arbor housing complex

after receiving a complaint about a large group of people

drinking and being loud in the complex’s courtyard. When

the officers arrived, they observed fifteen to twenty

people engaged in those activities. Nonetheless, they

bypassed those people and approached defendant and another

gentleman who were sitting quietly on some steps and who

were not drinking. According to Officer Spickard’s

preliminary examination testimony, he approached these

particular two gentlemen because he did not recognize them.

At the suppression hearing, however, he testified that he

approached them because he believed defendant’s companion

resided at the apartment connected to the steps on which he

was sitting, and the officer wanted to ask him some

questions about the gathering. Officer Spickard testified

that while he was talking to the gentlemen, a woman opened

the adjacent door, asked defendant who he was and why he

was on her porch, and retreated inside.

2
Law Enforcement Information Network.

Thus, according to Officer Spickard, he initially

asked for defendant’s identification because he suspected

that defendant might not belong at the complex, and he

wanted to determine where defendant lived. Defendant

voluntarily informed him that he did not live in the

complex, and he voluntarily gave him his facially valid

identification card. At that point, any suspicions the

officers had about where defendant lived were resolved, and

there was no need to detain defendant.3 Of course, the

officers were free to continue the consensual encounter by

asking defendant additional questions, such as why he was

there, but, instead, they confiscated the identification

card and, without requesting permission, initiated a LEIN

check.4

3
The majority apparently does not contest that there
was no need to detain defendant because it does not find
that the officers had reasonable suspicion to detain
defendant at the time of the LEIN check. See ante at 10.
And at the suppression hearing, Officer Spickard offered no
rationale whatsoever that would indicate that he or his
partner had a reasonable suspicion that any other sort of
criminal activity was afoot.
4
The majority claims that I “fail[] to note” changes
in defendant’s behavior that occurred after the officers
began the LEIN check, and that I thus erroneously fail to
properly assess the facts supporting reasonable suspicion.
Ante at 3 n 1. Apparently, the majority misses my point
that at the time those subsequent behaviors occurred,
defendant had already been seized. Thus, not only do those
behaviors add nothing to the analysis whether the officers

The LEIN check in this case was not only

nonconsensual, but it was more than a momentary detention.5

A person “‘may not be detained even momentarily without

reasonable, objective grounds for doing so . . . .’”

Shabaz, supra at 57, quoting Royer, supra at 498. When the

trespass theory is discounted, as it should be,6 even the

majority can find no facts that support a finding that the

had reasonable suspicion at the time of the seizure, but
considering subsequent behavior violates the United States
Supreme Court’s clear prohibition on using after-acquired
suspicions in a totality of the circumstances analysis.
See Florida v JL, supra at 271-272.
5
In fact, in this case, the wait for the LEIN check
results was unusually long because the police dispatcher
was busy.
6
MCL 750.552, in relevant part, defines trespass as
follows:

Any person who shall wilfully enter, upon
the lands or premises of another without lawful
authority, after having been forbidden so to do
by the owner or occupant, agent or servant of the
owner or occupant, or any person being upon the
land or premises of another, upon being notified
to depart therefrom by the owner or occupant, the
agent or servant of either, who without lawful
authority neglects or refuses to depart
therefrom, shall be guilty of a misdemeanor
. . . .

Of course, a LEIN check would not assist the officers
in determining whether the putative occupant had previously
asked defendant to leave, and the officers had not seen the
putative occupant ask defendant to leave. Thus, any
alleged suspicion of trespass was unrelated to the LEIN
check and the subsequent detention.

officers had reasonable suspicion of criminal activity when

the LEIN check was initiated.7

The situation that occurs when an officer asks for

identification and a person produces it involves a question

and a response, an exchange that can be fairly

characterized as a “consensual encounter” as that term is

used in Fourth Amendment context. But here the officers’

next action did not involve a question to which defendant

had the opportunity to choose to respond. The exchange had

ceased. By confiscating defendant’s identification card

and beginning an investigation, the officers turned the

otherwise voluntary encounter into a detention. By

skirting that issue entirely, the majority fails to

correctly identify the point at which defendant was seized.

Using the objective test set forth in Hodari D, supra

at 628, the focus must be on whether, when the LEIN check

began, “the officer’s words and actions would have

7
The officers would find out later that defendant was
there visiting his two daughters, who did live in the
complex. While that fact has no direct bearing on this
analysis, Officer Spickard claimed that he continued
speaking with defendant because he suspected him of
trespassing. But the fact that the officers did not elicit
this information from defendant, which could have been
obtained by asking the simple question, “Why are you
here?”, but instead chose to run a LEIN check, which would
not answer the question, supports defendant’s theory that
the officers were acting on inchoate suspicions unrelated
to trespass.

conveyed” to a reasonable person that he was being seized.

“[T]he threatening presence of several officers, the

display of a weapon by an officer, some physical touching

of the person of the citizen, or the use of language or

tone of voice indicating that compliance with the officer’s

request might be compelled” are some circumstances that

suggest that a seizure has occurred. Mendenhall, supra at

554.

Here, two uniformed, armed police officers, who had

already resolved their initial concern about defendant’s

residence, nonetheless retained defendant’s identification

card and initiated a LEIN check with no particularized,

articulable basis for doing so.8 The officers’ actions

would have objectively conveyed to a reasonable person that

the person was not free to leave, and I cannot conceive of

a reasonable person who would feel free to walk away under

8
This particular situation differs from those in which
our courts have considered LEIN checks run in the course of
lawful vehicle stops. See, e.g., People v Davis, 250 Mich
App 357, 367-368; 649 NW2d 94 (2002), and People v Walker,
58 Mich App 519, 523-524; 228 NW2d 443 (1975). In those
cases, the officers already had reasonable suspicion and
conducted LEIN checks in furtherance of their initial stop.
Here, the officers conducted the LEIN check without first
having reasonable suspicion to make the detention.

those circumstances.9 The critical distinction between this

and a consensual encounter is that defendant was no longer

being asked questions he could refuse to answer.

Moreover, an officer’s subjective intent is relevant

to the extent that it may have been conveyed to the

defendant by the words or actions of the officer.

Mendenhall, supra at 554 n 6. In the following testimony,

Officer Spickard confirmed that defendant was not free to

leave once he initiated the LEIN check:

Q. [Defense counsel]: At the point that you
approached Mr. Jenkins and asked him for his
I.D., he was not free to leave at that point,
correct?

A. [Officer Spickard]: That would be
correct.

Q. And if he would have tried to run away,
you would have run after him, correct?

A. That would be correct.

Q. And if he would have tried to run away,
you would have stopped him?

9
The majority enigmatically states that while I
“conclude[] that no reasonable person would walk away under
the circumstances, this view was obviously not shared by
the defendant, who walked away ‘under those
circumstances.’” Ante at 3 n 2. Not only am I befuddled
at what this lends to the majority’s analysis, it seems to
assume that I state that defendant was a reasonable person.
I do not. Moreover, the test to determine when a person
was seized does not consider the defendant’s subjective
feelings or actions; rather, it asks whether a reasonable
person in defendant’s position would feel free to leave.
Hodari D, supra at 627-628.

A. That would be correct.

Q. And, in fact, as you testified on direct,
you encouraged him throughout this whole
encounter to stick around?

A. Correct.

Q. Because you wanted to see what the
results were of the LEIN check?

A. Correct.

Q. And he was never free to leave throughout
that entire encounter?

A. I would characterize that as correct.

Q. And he was never able to get his I.D.
back from you, correct?

A. I believe we maintained possession of his
identification, yes.

* * *

Q. And if he had asked you for the I.D. back
at that point, you would have said no?

A. Pending the results of the LEIN check,
yes.

Officer Spickard was an experienced officer with a

ten-year history with the Ann Arbor Police Department. It

is reasonable to presume that these officers, by their

conduct and by withholding defendant’s identification card,

were effectively conveying to defendant that he was not

free to leave.10

10
The majority misreads my analysis by concluding that
I find the officers’ subjective beliefs, without more,
material. But what I conclude is that the officers’ show

The officers could have easily avoided offending the

Fourth Amendment. They could have extended the exchange by

asking defendant if he had any warrants, thereby giving

defendant an opportunity to answer “yes” or “no” or refuse

to answer altogether. They could have then asked him if he

minded if they checked. Again, defendant could have

answered or refused to answer. But despite the simplicity

and legitimacy of this method, and the well-settled

recognition that the police may approach people and ask

noncoercive questions without needing constitutional

justifications, today’s majority contravenes well-settled

constitutional law by installing a rule by which an officer

can approach a person, ask for identification, and run a

warrant check without reasonable suspicion that criminal

activity is afoot merely because that person is in a high-

crime area. Indeed, it cannot be clearer that “[a]n

individual’s presence in an area of expected criminal

activity, standing alone, is not enough to support a

reasonable, particularized suspicion that the person is

committing a crime.” Illinois v Wardlow, 528 US 119, 124;

of authority, actions, words, and conduct were objective
manifestations of their clearly held subjective belief that
defendant was not free to leave. Such a conclusion is
perfectly within the confines of the rules governing the
consideration of subjective beliefs. See Mendenhall, supra
at 555 n 6.

120 S Ct 673; 145 L Ed 2d 570 (2000), citing Brown v Texas,

443 US 47; 99 S Ct 2637; 61 L Ed 2d 357 (1979).

Thus, like each court that has heard the matter until

now, I would hold that defendant was illegally seized

without reasonable suspicion or probable cause. The

officers retained defendant’s identification card and

initiated a LEIN check without defendant’s permission and

after having already resolved their initial stated concern.

The officers did not identify, nor do the facts show, any

circumstances that suggested that the officers had a

reasonable, articulable suspicion based on objective

observations that defendant had been, was, or was about to

engage in criminal wrongdoing at that point. Shabaz, supra

at 59. Moreover, I believe that the officers’ conduct and

the circumstances surrounding the detention would have

persuaded any reasonable person to conclude that he was not

free to leave. As such, I would affirm the decision of the

Court of Appeals.

Michael F. Cavanagh
Marilyn Kelly