People v. Terrell

• Decision Date: 23 August 1977
• Docket Number: Docket No. 31051
• Citation: 77 Mich.App. 676,259 N.W.2d 187
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joe Conal TERRELL, Defendant-Appellee. 77 Mich.App. 676, 259 N.W.2d 187
• Court: Court of Appeal of Michigan — District of US

Page 187

259 N.W.2d 187

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joe Conal TERRELL, Defendant-Appellee.

Docket No. 31051.

77 Mich.App. 676, 259 N.W.2d 187

Court of Appeals of Michigan.

Aug. 23, 1977.

Rehearing Denied Nov. 3, 1977.

Released for Publication Nov. 14, 1977.

[77 MICHAPP 677] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief, Asst. Pros. Atty., Andrea L. Solak, Asst. Pros. Atty., for plaintiff-appellant.

I. Goodman Cohen, Detroit, for defendant-appellee.

Before BEASLEY, P. J., and V. J. BRENNAN and McDONALD, ^* JJ.

V. J. BRENNAN, Judge.

This is a prosecutor's appeal from an order granting defendant's motion to suppress the evidence and dismiss the proceedings.

Defendant Joe Conal Terrell was charged in the complaint and warrant with knowingly or intentionally possessing a controlled substance, 4.87 grams of powder containing heroin, contrary to M.C.L.A. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a). The charge against defendant arose out of the following facts. At 4:10 p.m. on May 4, 1976, Detroit Police Officer Michael Dwyer, driving an unmarked[77 MICHAPP 678] scout car, noticed the defendant standing at the corner of Fenkell and Dexter Avenues. Mr. Terrell testified he had been standing on the corner for ten minutes, talking with a friend while waiting for a cab. Mr. Terrell was aware that his friend had seen the police pass by approximately five minutes earlier, although the defendant himself had not seen them.

The facts from this point are in dispute. Mr. Terrell testified that he left the corner and walked to his friend's apartment building where he was to telephone for a cab, since the cab they were awaiting had not arrived. Mr. Terrell had been sent to place the call because his friend, who had only one leg, would have difficulty in reaching the second-floor apartment. As Mr. Terrell was about to knock on the apartment door, he was stopped by a police officer in plain clothes with a drawn gun.

At the suppression hearing, Mr. Terrell described an injury to his left leg suffered five years prior to the incident in question which had left him disabled in that he is unable to run without hopping.

According to Officer Dwyer, the defendant looked in his direction as Officer Dwyer drove through the intersection. The defendant then reached into his pocket and ran north on Dexter. Believing there could possibly be a gun in Mr. Terrell's pocket, Officer Dwyer exited his scout car and gave chase. Mr. Terrell ran into the apartment building and up to the second floor, where Officer Dwyer observed him pull his hand out of his pocket and drop a clear coin envelope containing a brown powdery substance. Officer Dwyer retrieved the envelope, which he thought might contain heroin, and arrested Mr. Terrell. The coin envelope and its contents were the subject of [77 MICHAPP 679] defendant's motion to suppress. No gun was found on Mr. Terrell's person, along the trail defendant had taken, or in the apartment building at the site of the arrest.

On appeal, plaintiff contends the trial court erred in granting defendant's motion to suppress evidence and dismiss the proceedings. Plaintiff argues prior justification existed for the police officer's investigatory stop of defendant, so as to bring the officer's discovery and seizure of evidence within the "plain view" exception to the warrant requirement. U.S.Const. Amend. IV, Mich.Const.1963, art. 1, § 11.

This Court will not overturn the trial court's ruling at a suppression hearing unless that ruling is found to be clearly erroneous. People v. Triplett, 68 Mich.App. 531, 535, 243 N.W.2d 665 (1976), lv. den., 397 Mich. 842 (1976); People v. Bunker, 22 Mich.App. 396, 404, 177 N.W.2d 644 (1970); People v. Smith, 19 Mich.App. 359, 367-368, 172 N.W.2d 902 (1969). In the case at bar, the trial court's determination was soundly based on existing law, state and Federal.

The police officer's investigatory pursuit of defendant must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The inquiry demanded by Terry is a dual one:

"* * * whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. at 20, 88 S.Ct. at 1879.

A totality of facts and circumstances which could provide the officer with a reasonable belief that criminal activity may be afoot was simply lacking [77 MICHAPP 680] in the instant case. Terry v. Ohio, 392 U.S. at 21-29, 88 S.Ct. 1868; People v. Parisi, 393 Mich. 31, 34-37, 222 N.W.2d 757 (1974); People v. Lillis, 64 Mich.App. 64, 68-72, 235 N.W.2d 65 (1975); ...