People v. Shabaz
| Decision Date | 04 December 1985 |
| Docket Number | Docket No. 72567 |
| Citation | 378 N.W.2d 451,424 Mich. 42 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Askia Khalil SHABAZ, Defendant-Appellee. 424 Mich. 42, 378 N.W.2d 451 |
| Court | Michigan Supreme Court |
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.
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 Upon the prosecutor's appeal, the Court of Appeals affirmed the trial court's ruling, in an unpublished opinion per curiam, finding that the trial court's action was not clearly erroneous. We granted leave to appeal, 418 Mich. 950 (1984).
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 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:
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 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 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 might expect to find narcotics, concealed weapons, and prostitutes, and that the police had problems with the building at 60 Clairmount in the past.
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:
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 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.
The Court of Appeals, after first observing that "[t]he parties agree that this initial situation is governed by the 'stop and frisk' 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:
We granted leave to appeal, 418 Mich. 950 (1984).
The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const., Am. IV. 4
The Fourth Amendment is not a guarantee against all searches and seizures, but only against those that are...
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