286 N.W.2d 226 (Mich. 1979), 58465, People v. Summers

Docket Nº:Docket No. 58465.
Citation:286 N.W.2d 226, 407 Mich. 432
Opinion Judge:MOODY, Justice.
Party Name:The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. George SUMMERS, Defendant-Appellee.
Attorney:[407 Mich. 440] Timothy A. Baughman, Asst. Pros. Atty., for plaintiff-appellant. Gerald M. Lorence, Detroit, for defendant-appellee.
Case Date:December 27, 1979
Court:Supreme Court of Michigan

Page 226

286 N.W.2d 226 (Mich. 1979)

407 Mich. 432

The PEOPLE of the State of Michigan, Plaintiff-Appellant,


George SUMMERS, Defendant-Appellee.

Docket No. 58465.

Calendar No. 10.

Supreme Court of Michigan.

December 27, 1979

Argued Oct. 5, 1978.

[407 Mich. 440] Timothy A. Baughman, Asst. Pros. Atty., for plaintiff-appellant.

Gerald M. Lorence, Detroit, for defendant-appellee.

MOODY, Justice.

On October 10, 1974, a team of Detroit police officers was dispatched to execute a warrant to search premises located at 9356 Mansfield. The warrant was issued to search the premises and seize heroin and any other narcotics materials and paraphernalia, but did not specify persons to be searched. The owner of the premises was not named in the search warrant. The only reference to a particular person was a statement contained in the warrant indicating that the informant had previously purchased heroin at the Mansfield address from a black male known as "George".

[407 Mich. 441] Upon arriving at the named address, Officer Roger Lehman saw the defendant go out the front door of the house and proceed across the porch and down the steps. When defendant was asked to open the door he replied that he could not because he left his keys inside, but he could ring someone over the intercom. Dwight Calhoun came to the door, but did not admit the police officers.

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As a result, the officers obtained entrance to the premises by forcing open the front door. Once admittance had been gained Officer Lehman instructed Officer Conant, previously stationed along the side of the house, to bring the defendant, still on the porch, into the house.

After the eight occupants of the house were detained, a search of the premises revealed two plastic bags of suspected narcotics under the bar in the basement. After finding the suspected narcotics in the basement and upon determining that the defendant was the owner of the house, Officer Conant formally arrested the defendant for violation of the Controlled Substances Act of 1971. M.C.L. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a). A custodial search conducted by Officer Conant revealed a plastic bag containing suspected heroin in the defendant's jacket pocket. It is this heroin, discovered on the person of the defendant, that forms the basis of the instant possession charge.

Following a preliminary examination, defendant was bound over for trial. On November 19, 1974, the trial court granted a motion to suppress the evidence and quashed the information. Subsequently, the Court of Appeals affirmed the trial court. 68 Mich.App. 571, 243 N.W.2d 689 (1976). We granted leave to appeal on February 8, 1977. 399 Mich. 828 (1977).

The dispositive issue presented for resolution is [407 Mich. 442] whether the police officers had probable cause to arrest the defendant without a warrant when defendant was seized and detained while leaving his home prior to execution of the premises search warrant.

Statutory authority for an officer to arrest without warrant is set forth in M.C.L. § 764.15; M.S.A. § 28.874, which provides in relevant part:

"Any peace officer may, without a warrant, arrest a person

"(d) When he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it."

Probable cause for an arrest has been defined as any facts which would induce a fair-minded person of average intelligence and judgment to believe that the suspected person has committed a felony. People v. Ward, 226 Mich. 45, 196 N.W. 971 (1924). Furthermore, the facts upon which such belief is based must be present at the moment of arrest. People v. Stewart, 232 Mich. 670, 206 N.W. 337 (1925).

Therefore, in reviewing a claim that a police officer lacked probable cause to arrest, the reviewing court must determine whether facts available to the officer at the moment of arrest would justify a fair-minded person of average intelligence in believing that the suspected person had committed a felony. Each case must be analyzed in light of the particular facts confronting the arresting officer. People v. Harper, 365 Mich. 494, 113 N.W.2d 808 (1962).

According to the facts, defendant had left the premises before the search party arrived and was [407 Mich. 443] proceeding down the front porch steps when approached by Officer Lehman. At that point in time, Officer Lehman detained the defendant for purposes of limited inquiry and ascertained that the defendant lived at the named premises. There is no evidence that a frisk of the defendant was made. Defendant's behavior pursuant to the police officer's request for admittance to the premises can be categorized only as cooperative.

However, the testimony of Officer Conant at the preliminary examination indicates that the defendant was not free to leave the front porch as the premises search warrant was being executed, but was instead escorted into his house and deprived of his liberty. 1 At that time the initial

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inquiry and [407 Mich. 444] cooperative response terminated. This further detention of the defendant, by bringing him into the house, was a "seizure" as defined by the United States Supreme Court:

"Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19, fn. 16, 88 S.Ct. 1868, 1879, fn. 16, 20 L.Ed.2d 889 (1968).

We conclude that the seizure of defendant, unsupported by probable cause, was violative of the Fourth Amendment.

The standard for determining whether a police officer's seizure-detention of a citizen violates the Fourth Amendment is clearly set forth by the United States Supreme Court in the recent decision of Dunaway v. New York, --- U.S. ----, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Justice Brennan's majority opinion holds that detention of a citizen beyond the narrow scope of Terry v. Ohio, supra, and its progeny, is reasonable only if supported by probable cause for arrest. Thus, the general standard for determining whether a seizure-detention is legal is not whether the police officer's actions were reasonable under the circumstances but rather whether the police officer had probable cause to arrest.

In Dunaway, the Court explained that prior to the Terry decision arrests were equated with seizures requiring probable cause to justify the intrusion under the Fourth Amendment:

"Before Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Fourth Amendment's guarantee against unreasonable seizures [407 Mich. 445] of persons was analyzed in terms of arrest, probable cause for arrest, and warrants based on such probable cause. The basic principles were relatively simple and straightforward: The term 'arrest' was synonomous (sic) with those seizures governed by the Fourth Amendment. While warrants were not required in all circumstances, the requirement of probable cause, as elaborated in numerous precedents, was treated as absolute. The 'long prevailing standards' of probable cause embodied 'the best compromise that has been found for accommodating the ( ) often opposing interests' in 'safeguard(ing) citizens from rash and unreasonable interferences with privacy' and in 'seek(ing) to give fair leeway for enforcing the law in the community's protection'. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest 'reasonable' under the Fourth Amendment. The standard applied to all arrests, without the need to 'balance' the interests and circumstances involved in particular situations." (Footnotes omitted.) Dunaway, --- U.S. pp. ---- - ----, 99 S.Ct. p. 2254.

The exception to this general rule was carefully carved out in the Terry opinion:

"Terry for the first time recognized an exception to the requirement that Fourth

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Amendment seizures of persons must be based on probable cause. That case involved a brief, on-the-spot stop on the street and a frisk for weapons, a situation that did not fit comfortably within the traditional concept of an 'arrest'. * * * (T)he Court established 'a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime'. * * * Terry departed from traditional Fourth Amendment analysis in two respects. First, it defined a special category of Fourth [407 Mich. 446] Amendment 'seizures' so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment 'seizures' reasonable could be replaced by a balancing test. Second, the application of this balancing test led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but only for the purpose of a pat-down for weapons." (Footnotes omitted.) Dunaway, --- U.S. pp. ---- - ----, 99 S.Ct. pp. 2254-2255.

The Dunaway Court clearly indicated its intent to maintain the narrow scope of Terry. The Court expressly reaffirmed the essential viability of the probable cause standard and specifically refused to expansively apply the Terry balancing test:

"In effect, respondents urge us to adopt a multifactor balancing test of 'reasonable police conduct under the circumstances' to cover all seizures that do not amount to technical arrests. But the protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious...

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