People v. Armendarez

• Decision Date: 18 March 1991
• Docket Number: 115938,Docket Nos. 115719
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Andrew ARMENDAREZ, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William John GRIFFOR, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 893

468 N.W.2d 893

188 Mich.App. 61

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Andrew ARMENDAREZ, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William John GRIFFOR, Jr., Defendant-Appellant.

Docket Nos. 115719, 115938.

Court of Appeals of Michigan.

Submitted Oct. 2, 1990, at Lansing.

Decided March 18, 1991, at 9:45 a.m.

Released for Publication May 17, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the People.

Edward M. Czuprynski, Bay City, for defendants-appellants.

Before WAHLS, P.J., and DOCTOROFF and ALLEN, ^* JJ.

WAHLS, Presiding Judge.

Following a joint trial before a jury in the Bay Circuit Court, defendants Gary Andrew Armendarez and William John Griffor, Jr., were found guilty of delivery of less than fifty grams of cocaine, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv). The jury also found defendant Armendarez guilty of possession with intent to deliver less than fifty grams of cocaine, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv), and defendant Griffor guilty of possession of less than fifty grams of cocaine, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv). Defendant Armendarez was sentenced to two consecutive terms of eight to twenty years for the delivery and possession convictions and was fined $25,000. Defendant Griffor was sentenced to concurrent terms of seven to twenty years and was fined $25,000 for the delivery conviction, and thirty-two months to four years and a $2,000 fine for the possession conviction.

Defendants appeal as of right, claiming that the critical evidence against them was the product of an unlawful search and seizure, and that their sentences should shock this Court's conscience. Defendant Griffor also claims that he was denied effective assistance of counsel. We affirm defendants' convictions, but remand for resentencing in light of People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990).

According to the preliminary examination transcript, on April 13, 1988, Deputy Karen Gibson and Sergeant Miller of the Bay County Sheriff's Department were on a dinner break when Gibson received a radio transmission instructing her to telephone central dispatch. Deputy Gibson was informed by the dispatch operator that the department received a telephone call from an anonymous citizen-informant regarding a "dope deal" in the parking lot of a K mart store. The citizen-informant indicated that he was observing the drug transaction in progress from a telephone booth, the participants were driving a black van and another vehicle, and two of the participants were defendant Armendarez and Bill Thorp. Gibson advised Miller of the reported drug transaction and the two officers proceeded to K mart in separate vehicles.

The officers entered the K mart parking lot and observed a black van and a silver Mercury automobile parked next to each another. As the officers approached, the vehicles drove away. Miller pursued the van, while Gibson circled behind the Mercury. Gibson observed the three male suspects in the vehicle turn around, observe the officer, and then appear to hide objects within the vehicle. Defendant Griffor was driving, defendant Armendarez was in the front passenger seat, and Thorp was in the back seat.

The vehicle was traveling at a speed of approximately two to three miles per hour. Gibson activated her overhead lights; however, defendant Griffor refused to stop. Finally, the officer forced the vehicle to stop, ordered the suspects out, and directed them to stand at the back of the vehicle until backup units arrived. Defendant Armendarez was argumentative and asked why they had been stopped. When Gibson informed defendant Armendarez she was investigating a "drug deal," defendant Armendarez responded, "I only sold him a couple joints."

Once the backup units arrived, the suspects were frisked for weapons and asked for identification. Defendant Armendarez stated his identification was in his coat located inside the vehicle. Gibson retrieved the coat from the front seat of the vehicle, removed and searched the wallet, and found it contained $1,732 as well as defendant Armendarez's identification.

Gibson subsequently searched the vehicle and found a plastic tray under the front passenger seat containing a green powdery substance, a pair of forceps on the drivetrain hump containing the tip of a small partially smoked marijuana cigarette, Zigzag cigarette rolling paper in the ashtray, three crumpled one-dollar bills on the passenger side floor, and a brown paper bag on the back seat containing a digital electronic scale and twelve small orange plastic bags.

The suspects were taken to the police station where, upon realizing that he would be searched, defendant Armendarez reached into his pants and produced a bag containing more than forty grams of cocaine.

The circuit court did not conduct an evidentiary hearing on defendants' motion to suppress. Rather, in deciding defendants' motion, the court relied solely on the preliminary examination transcript, as stipulated to by the parties. The trial court denied defendants' motion, finding that the officers had probable cause to stop and search the vehicle and to detain the occupants. Where a sufficiently complete stipulation of facts is made, the trial court may decide a motion to suppress on the basis of the stipulation without conducting an independent hearing. People v. Futrell, 125 Mich.App. 568, 571, 336 N.W.2d 834 (1983).

This Court will not reverse a denial or a grant of a motion to suppress evidence unless the trial court's decision is clearly erroneous. People v. Burrell, 417 Mich. 439, 448, 339 N.W.2d 403 (1983); People v. Russo, 185 Mich.App. 422, 434, 463 N.W.2d 138 (1990); People v. Malone, 180 Mich.App. 347, 355, 447 N.W.2d 157 (1989). Therefore, the trial court's decision will be affirmed unless, upon a review of the record, this Court is left with a definite and firm conviction that a mistake was made. People v. Toohey, 183 Mich.App. 348, 352, 454 N.W.2d 209 (1990), lv. gtd. 436 Mich. 879 (1990).

The Fourth Amendment of the United States Constitution and the parallel provision in the Michigan Constitution guarantee the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. U.S. Const. Am. IV; Const.1963, art. 1, Sec. 11. The Fourth Amendment is not a guarantee against all searches and seizures, but only against those which are unreasonable. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985); People v. Shabaz, 424 Mich. 42, 52, 378 N.W.2d 451 (1985), cert. dis. 478 U.S. 1017, 106 S.Ct. 3326, 92 L.Ed.2d 733 (1986); People v. Orlando, 305 Mich. 686, 690, 9 N.W.2d 893 (1943). Therefore, the touchstone of a reviewing court's Fourth Amendment analysis is always "the reasonableness in all the circumstances of the governmental invasion of the citizen's personal security." Michigan v. Long, 463 U.S. 1032, 1051, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 [1968]. The Michigan Constitution does not impose a higher standard of reasonableness for searches and seizures than that imposed by the federal constitution. People v. Nash, 418 Mich. 196, 214-215, 341 N.W.2d 439 (1983); People v. Ragland, 149 Mich.App. 277, 281, 385 N.W.2d 772 (1986).

First, defendants challenge the initial stop of the vehicle, arguing that the investigative stop was not based on an individualized, articulable, and reasonable suspicion that criminal activity was being or had been committed. We disagree.

In order to justify an investigative stop, the police must have a particularized suspicion, based on objective observations, that the person stopped has been, is, or is about to engage in some type of criminal activity. Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); Shabaz, supra, 424 Mich. pp. 57-58, 378 N.W.2d 451. Whether or not the police conduct violates the Fourth Amendment must be evaluated in light of the totality of the circumstances with which the police were confronted. Id., p. 59, 378 N.W.2d 451.

The following considerations are pertinent to our constitutional analysis:

1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.

2. Said reasonableness will be determined from the facts and circumstances of each case.

3. Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.

4. A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police. [People v. Whalen, 390 Mich. 672, 682, 213 N.W.2d 116 (1973) .]

Reasonable cause necessary to stop a motor vehicle need not arise from a police officer's personal observation, but may also be supplied by a citizen-informant if the information carries enough indicia of reliability to provide the officer with a reasonable suspicion that criminal activity is afoot. Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972); People v. Tooks, 403 Mich. 568, 576, 271 N.W.2d 503 (1978). On review, we examine three factors to determine whether the informant's tip carried enough indicia of reliability to supply the basis for reasonable cause to stop defendant Griffor's vehicle: (1) the reliability of the informant, (2) the nature of the information given the police, and (3) the reasonableness of the suspicion in light of these factors. Id., 403 Mich. p. 577, 271 N.W.2d 503; People v. Estabrooks, 175 Mich.App. 532, 536, 438 N.W.2d 327 (1989).

In the instant case, the...