378 N.W.2d 451 (Mich. 1985), 72567, People v. Shabaz

Docket NºDocket No. 72567.
Citation378 N.W.2d 451, 424 Mich. 42
Opinion Judge--[424 Mich. 60] The defendant was observed on the street at night in a high-crime neighborhood;
Party NamePEOPLE of the State of Michigan, Plaintiff-Appellant, v. Askia Khalil SHABAZ, Defendant-Appellee.
Attorney[424 Mich. 45] John D. O'Hair, Pros. Atty. of Wayne County, Edward Reilly Wilson, Chief Appellate, Asst. Pros. Atty., Andrea L. Solak, Asst. Pros. Atty., Detroit, for plaintiff-appellant.
Case DateDecember 04, 1985
CourtSupreme Court of Michigan

Page 451

378 N.W.2d 451 (Mich. 1985)

424 Mich. 42

PEOPLE of the State of Michigan, Plaintiff-Appellant,

v.

Askia Khalil SHABAZ, Defendant-Appellee.

Docket No. 72567.

Supreme Court of Michigan.

December 4, 1985

Argued March 6, 1985.

Page 452

[424 Mich. 45] John D. O'Hair, Pros. Atty. of Wayne County, Edward Reilly Wilson, Chief Appellate, Asst. Pros. Atty., Andrea L. Solak, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

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

[424 Mich. 46] RYAN, Justice.

Defendant, Askia Khalil Shabaz, 1 was arrested for carrying a concealed weapon, a .357 caliber Smith and Wesson revolver, in violation of M.C.L. Sec. 750.227; M.S.A. Sec. 28.424. Following a preliminary examination held in the 36th District Court on July 22, 1982, he was bound over the Recorder's Court for the City of Detroit for trial as charged. In October, 1982, an evidentiary hearing was held in the Recorder's Court upon the defendant's motion to quash the information or, in the alternative, to suppress the revolver as evidence. 2 At the conclusion of the hearing, the court granted the motion to suppress the evidence, and dismissed the case. Upon the prosecutor's appeal, the Court of Appeals affirmed the trial court's ruling, in an unpublished

Page 453

opinion per curiam, finding that the trial court's action was not clearly erroneous. We granted leave to appeal, 418 Mich. 950 (1984).

I

The facts available to us are taken from the preliminary examination and the evidentiary hearing, from the testimony of Officer Kenneth Surma, who was the only witness at both hearings.

On July 22, 1982, at approximately 9:00 P.M., Detroit Police Officers Surma, Scotsky, and Hayes were on patrol in an unmarked police vehicle in the area of Clairmount and Woodward Avenues in the City of Detroit. The officers were in plain clothes, and Officer Scotsky was driving.

The vehicle was proceeding westbound on Clairmount from Woodward when Officer Surma observed [424 Mich. 47] defendant leaving a building at 60 Clairmount, which is on the north side of Clairmount and which comprises approximately thirty apartments.

Surma observed defendant carrying a small brown paper bag, and walking east on Clairmount toward Woodward Avenue. At the time he observed defendant leaving the building, Surma was in the police vehicle approximately fifty feet from the defendant, and the police car was moving toward defendant. Defendant looked in Surma's direction and began "stuffing a paper bag like under his vest," or "in his pants." The driver, Officer Scotsky, slowed the vehicle, and the defendant and the scout car passed each other. When the officers' vehicle had nearly come to a complete stop, defendant "took off running." Surma testified: "We started slowing down to take a better look at what he was doing. As we were coming to a stop, he immediately started to run."

Officer Scotsky put the car in reverse and backed the vehicle to the corner of Woodward and Clairmount. When the car was approximately ten to fifteen feet from defendant, Surma got out of the car and chased the defendant south on Woodward while Officer Hayes "backed up" Surma. Surma chased defendant a distance of about three store fronts, and observed defendant enter a doorway at 9037 Woodward. During the chase, Surma did not observe anything in defendant's hands. By the time Surma reached the doorway the defendant had entered, defendant was coming out. Surma grabbed defendant and, as the defendant tried to push away, Surma "tossed him towards Officer Hayes," and Hayes subdued the defendant. While chasing the defendant, Hayes had pulled his service revolver and, when defendant and Hayes [424 Mich. 48] collided, the firearm discharged, although no one was struck. Surma then went into the vestibule of the building and retrieved a closed, brown paper bag. Surma did not know what was in the bag until after he retrieved it. The bag contained a "Smith & Wesson, four inch blue steel revolver, .357."

Officer Surma confiscated the weapon, unloaded it, and asked the defendant if he had a permit. After receiving a negative reply from the defendant, Surma placed defendant under arrest for unlawfully carrying a concealed weapon. During the chase, none of the officers had identified themselves as police officers or given any order or command to the defendant.

Surma testified, at the preliminary examination, that he thought the defendant was "hiding something," and that "I believed it to be either weapon [sic] or narcotics," and that was the reason Officer Scotsky stopped the car. At the time Surma observed the defendant leave the apartment building on Clairmount, Surma did not have "any reports of a felony having been committed with the description of Mr. Shabaz," and Surma could not recall ever having seen the defendant before. When asked, "when you grabbed him, you didn't have any additional information or sighting that he had committed a felony or was about to commit a felony, had you?" Officer Surma replied, "No, I did not." Surma also acknowledged that there is a supermarket very close to the apartment building and that people "normally bring things out of the supermarket in the same type of bag." In his eleven years on the police force,

Page 454

Officer Surma had made five to six arrests for concealed weapons offenses, and approximately ten narcotics arrests at the Clairmount address. Surma testified that, at the intersection of Clairmount and Woodward, one [424 Mich. 49] might expect to find narcotics, concealed weapons, and prostitutes, and that the police had problems with the building at 60 Clairmount in the past.

II

Following Officer Surma's testimony at the preliminary examination, the prosecutor moved the court to bind the defendant over to the Recorder's Court as charged. In opposition, defense counsel argued that "[t]here was no probable cause for the initial focus by the police officers"; that defendant was near King Cole's grocery market; that any number of people in that apartment building would have paper bags; that there were any number of reasons "th[at] person would place the paper bag under his vest"; and that this is a "clear case of post hoc probable cause, rationalizing their subsequent actions after pursuing his person on a chimeral [sic] suspicion."

The prosecutor responded:

"[N]ot everybody who has a paper bag tried [sic] to stuff it in their pants and tries to run away from people when they look at them. The officers did have a reasonable suspicion to at least stop the defendant at this point, and he continued to flee. Before he was even stopped, he discarded the bag. There's no search and seizure. It's just a situation that would justify a stop by a police officer and a pat down, which they didn't even get to that point. I don't believe that there's a search and seizure issue here, your Honor."

Defendant countered that the question is not one of search and seizure, but of probable cause for an arrest, and that there was no probable cause for an arrest.

In binding the defendant over for trial, the [424 Mich. 50] district court simply stated, "The Court does find there's a question of fact and does bind the defendant over as charged, carrying a concealed weapon on a person."

At the evidentiary hearing in Recorder's Court, the prosecutor argued that Surma's actions were not unreasonable. He noted that the neighborhood in question was a high-crime area, that defendant was not coming out of a supermarket with a bag of groceries, and that an officer of eleven years "on the street knows pretty much whether--and as he indicated he thought either narcotics or a gun, from his experience and from the Court's, I think knowledge of Clairmount and Woodward would be a very reasonable assumption."

The defendant relied on his "brief and memo" and did not offer argument. After observing that Officer Surma was a "totally credible witness," the court stated it was relying on People v. Terrell, 77 Mich.App. 676, 259 N.W.2d 187 (1977), 3 and granted defendant's motion to suppress the evidence and dismissed the case.

[424 Mich. 51] The Court of Appeals, after first observing that "[t]he parties agree that this initial situation is governed by the 'stop and frisk'

Page 455

doctrine enunciated by the United States Supreme Court in Terry v Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)," applied the Terry "stop and frisk" standard to the facts of this case and concluded:

"Our examination of the record convinces us that the trial court correctly held that insufficient facts and circumstances existed to provide the police officers with a reasonable belief that criminal activity may have been in progress. Like the factual setting in Terrell, supra, defendant's surreptitious gestures may have aroused the officers' general suspicions, but absent specific knowledge on the part of the officers, defendant's actions were insufficient to warrant an investigatory intrusion. The officers' pursuit and stop of the defendant was not justified at its inception and, thus, was an unlawful invasion of defendant's Fourth Amendment rights.

"Of particular import to our holding are the following factors: (1) The officers were not investigating a recently committed crime in the area of Clairmount and Woodward Avenues; (2) defendant was unknown to the officers and was not the subject of an arrest warrant; (3) defendant did not resemble an individual suspected of committing a crime; (4) defendant did not have any contraband or weapons visibly on his person; (5) the officers were not in uniform and were travelling in an unmarked police car; and (6) during their pursuit of defendant, the officers did not identify themselves as policemen."

We granted leave to appeal, 418 Mich. 950 (1984).

III

The Fourth Amendment provides:

[424 Mich. 52] "The right of the people to be secure in their persons, houses, papers, and effects,...

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  • 655 N.W.2d 291 (Mich.App. 2002), 237223, People v. Taylor
    • United States
    • Michigan Court of Appeal of Michigan (US)
    • 8 Octubre 2002
    ..."should reasonably lead to an exclusive inference of 'throwing [253 Mich.App. 407] away.' " Id., citing People v. Shabaz, 424 Mich. 42, 65-66, 378 N.W.2d 451 (1985). Whether an owner "abandoned" his property is an ultimate fact that turns on a combination of act and Page......
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    • United States
    • Michigan Court of Appeal of Michigan (US)
    • 21 Noviembre 2019
    ...of a person, including seizures that involve only a brief detention, short of traditional arrest." People v. Shabaz, 424 Mich. 42, 52, 378 N.W.2d 451 (1985) (citation omitted). A search is unreasonable if it is not supported by a warrant or an exception to the ......
  • People v. Lefree, 111814 MICA, 317502
    • United States
    • Michigan Court of Appeal of Michigan (US)
    • 18 Noviembre 2014
    ...to leave." Id. Our Supreme Court has categorized police-citizen encounters as falling under three different tiers. People v Shabaz, 424 Mich. 42, 56-58; 378 N.W.2d 451 (1985). The first tier consists of a police officer asking mere non-coercive questions of a person in a public setting......
  • Table of Cases
    • United States
    • Trial Manual for Defense Attorneys in Juvenile Delinquency Cases
    • 23 Junio 2014
    ...746 (2011), 11.01, 31.05 People v. Sapp, 98 A.D.2d 784, 469 N.Y.S.2d 803 (N.Y. App. Div., 2d Dep’t 1983), 25.03(b) People v. Shabaz, 424 Mich. 42, 378 N.W.2d 451 (1985), 23.11(a), 23.11(b), 23.13 People v. Shafier, 483 Mich. 205, 768 N.W.2d 305 (2009), 24.23 People v. Smith, 264 Cal. App. 2......
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114 cases
  • 655 N.W.2d 291 (Mich.App. 2002), 237223, People v. Taylor
    • United States
    • Michigan Court of Appeal of Michigan (US)
    • 8 Octubre 2002
    ..."should reasonably lead to an exclusive inference of 'throwing [253 Mich.App. 407] away.' " Id., citing People v. Shabaz, 424 Mich. 42, 65-66, 378 N.W.2d 451 (1985). Whether an owner "abandoned" his property is an ultimate fact that turns on a combination of act and Page......
  • 948 N.W.2d 650 (Mich.App. 2019), 330536, Johnson v. Vanderkooi
    • United States
    • Michigan Court of Appeal of Michigan (US)
    • 21 Noviembre 2019
    ...of a person, including seizures that involve only a brief detention, short of traditional arrest." People v. Shabaz, 424 Mich. 42, 52, 378 N.W.2d 451 (1985) (citation omitted). A search is unreasonable if it is not supported by a warrant or an exception to the ......
  • People v. Lefree, 111814 MICA, 317502
    • United States
    • Michigan Court of Appeal of Michigan (US)
    • 18 Noviembre 2014
    ...to leave." Id. Our Supreme Court has categorized police-citizen encounters as falling under three different tiers. People v Shabaz, 424 Mich. 42, 56-58; 378 N.W.2d 451 (1985). The first tier consists of a police officer asking mere non-coercive questions of a person in a public setting......
  • 428 N.W.2d 16 (Mich.App. 1988), 96018, People v. Hamp
    • United States
    • Michigan Court of Appeal of Michigan (US)
    • 18 Julio 1988
    ...based generally upon a combination of act and intent." Friedman v. United States, 347 F.2d 697, 704 (CA 8, 1965); People v. Shabaz, 424 Mich. 42, 65-66, 378 N.W.2d 451 (1985). In our case, once defendant ran from the Konrad home and dropped the package, he abandoned it. Once this occur......
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2 books & journal articles
  • Table of Cases
    • United States
    • Trial Manual for Defense Attorneys in Juvenile Delinquency Cases
    • 23 Junio 2014
    ...746 (2011), 11.01, 31.05 People v. Sapp, 98 A.D.2d 784, 469 N.Y.S.2d 803 (N.Y. App. Div., 2d Dep’t 1983), 25.03(b) People v. Shabaz, 424 Mich. 42, 378 N.W.2d 451 (1985), 23.11(a), 23.11(b), 23.13 People v. Shafier, 483 Mich. 205, 768 N.W.2d 305 (2009), 24.23 People v. Smith, 264 Cal. App. 2......
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