People v. Bloxson

• Decision Date: 16 May 1994
• Docket Number: Docket No. 159646
• Citation: 205 Mich.App. 236,517 N.W.2d 563
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derrick David BLOXSON, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 563

517 N.W.2d 563

205 Mich.App. 236

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derrick David BLOXSON, Defendant-Appellee.

Docket No. 159646.

Court of Appeals of Michigan.

Submitted Sept. 14, 1993, at Lansing.

Decided May 16, 1994, at 9:05 a.m.

Released for Publication June 30, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Donald E. Martin, Pros. Atty., and Barbara A. VanderVoord, Asst. Pros. Atty., for People.

Hubbard, Fox, Thomas, White & Bengtson, P.C. by Thomas A. Bengtson, Lansing, for defendant.

Before HOLBROOK, P.J., and FITZGERALD and TAYLOR, JJ.

HOLBROOK, Presiding Judge.

Defendant was charged with possession with intent to deliver less than fifty grams of a mixture containing cocaine, M.C.L. § 333.7401(2)(a)(iv); M.S.A. § 14.15(7401)(2)(a)(iv), carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 28.424, resisting and obstructing a police officer, M.C.L. § 750.479; M.S.A. § 28.747, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Following a suppression hearing, the circuit court determined that there was an unreasonable seizure and suppressed the relevant evidence. The prosecutor appeals as of right. We affirm.

The parties do not dispute the facts. Jaime Corona of the Michigan State Police was assigned to the drug interdiction unit. Traveling to various public transportation stations to thwart the transport of narcotics and weapons on public carriers, members of the drug interdiction unit were trained to observe certain characteristics in people. On June 9, 1992, Detective Corona and two detectives from the Ingham County Sheriff's Department boarded a westbound bus in Lansing. The detectives were casually dressed and were not in uniforms. The three detectives did not display any guns. The two county detectives sat in the rear of the bus.

There were fifteen to twenty people randomly seated on the bus. When Detective Corona entered the bus, two people immediately caught his attention. The detective walked up to the defendant, identified himself by showing his credentials, and asked to speak with him. The detective stated that he was making citizen contact with people because the police were aware that people were using buses to transport weapons and narcotics. The detective asked the defendant if he had any weapons, and the defendant said, "No." The detective observed the defendant's nervousness, evidenced by the defendant's shaking hands, his feet tapping on the ground, and his watery eyes. The detective also saw a duffel bag on the seat next to the defendant. The bag was partially unzipped, and the defendant's hand covered the open end of the bag. Detective Corona again asked if the defendant had any weapons, and the defendant said, "No." The detective did not advise the defendant that he could decline to speak with the detective. Detective Corona then asked the defendant whether he could look in the bag. The defendant said, "I really don't see the reason." The record does not indicate whether the defendant was advised that he had the right to refuse consent to a search of the bag. The detective asked the defendant why he was acting nervously. The detective then told the defendant that he sensed that the defendant had something illegal in the bag and that he should just be honest and let him know what was in the bag. During this questioning, the detective was standing in the bus aisle next to the seat in front of the defendant. The defendant then admitted that he had a gun in the bag and removed his hand to reveal it. Because the defendant kept returning his hand to the bag, the detective told him he was under arrest and asked him to stand. The defendant stood and physically confronted the detective. The other two detectives helped arrest the defendant. The other suspect who initially caught Detective Corona's attention was arrested also.

In granting the defendant's motion to suppress the evidence, the circuit court took into account the physical position of the detective standing in the bus aisle and determined that a reasonable person would not feel free to leave. The court also noted that the defendant neither was advised that he was free to leave nor was told that he did not have to consent.

The trial court's decision to grant a motion to suppress evidence will not be reversed unless it is clearly erroneous. People v. Burrell, 417 Mich. 439, 448, 339 N.W.2d 403 (1983); People v. Muro, 197 Mich.App. 745, 747, 496 N.W.2d 401 (1993).

The Supreme Court in People v. Faucett, 442 Mich. 153, 157-158, 499 N.W.2d 764 (1993), recently stated:

The Fourth Amendment, then, protects citizens from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868 [1873-74], 20 L.Ed.2d 889 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574 [2578-79], 45 L.Ed.2d 607 (1975); 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). The reasonableness of a Fourth Amendment seizure balances the governmental interest that justifies the intrusion against an individual's right to be free of arbitrary police interference. Terry, supra at 20-21 ; Brignoni-Ponce, supra.

In addition, the federal constitutional protections against unreasonable searches and seizures have been extended to state proceedings through the Due Process Clause of the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684 [1691-92], 6 L.Ed.2d 1081 (1961); People v. Nash, 418 Mich. 196, 211, 341 N.W.2d 439 (1983) (opinion of BRICKLEY, J.); People v. Burrell, 417 Mich. 439, 448, n 15, 339 N.W.2d 403 (1983). Because the Michigan Constitution does not provide more protection than its federal counterpart, under the circumstances of this case, federal law controls our inquiry. Thus, consideration of defendant's motion for exclusion of the marijuana necessarily implicates his federal constitutional rights. See People v. Toohey 438 Mich. 265, 270-271, 475 N.W.2d 16 (1991), and People v. Collins, 438 Mich. 8, 25-31, 475 N.W.2d 684 (1991). [Emphasis in the original.]

Similarly, federal law is applicable in determining the issue presented in the present case.

The court in United States v. Johnson, 910 F.2d 1506, 1508 (C.A. 7, 1990), stated the extent of Fourth Amendment protections in the three categories of encounters between the police and citizens:

The first category is an arrest, for which the Fourth Amendment requires that police have probable cause to believe that a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment 'seizure,' but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen's liberty, and is characterized by an officer seeking the citizen's voluntary cooperation through non-coercive questioning. This is not a seizure within the meaning of the Fourth Amendment. [Citations omitted.]

First, we must determine whether the defendant was seized within the meaning of the Fourth Amendment. In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the United States Supreme Court held that drug interdiction agents may approach individuals on a bus, ask them questions, and request consent to search their luggage as long as a reasonable person would understand that he could refuse to cooperate. In Bostick, two officers boarded a bus and asked to inspect the defendant's ticket and identification. The ticket matched the defendant's identification. The officers identified themselves as narcotics agents and explained that they were looking for illegal drugs. They specifically advised the defendant that he had the right to refuse consent. The agents requested the defendant's consent to search his luggage. The defendant consented to the search, and contraband was found in one of his bags. Although one of the officers carried a zipper pouch containing a pistol, it was neither removed from the pouch nor used in a threatening manner.

The United States Supreme Court in Bostick held that the Florida Supreme Court had erred in focusing on whether the defendant was free to leave and in adopting a rule that a police drug interdiction encounter on a bus necessarily constitutes an unreasonable seizure per se. Id. at 436, 437, 111 S.Ct. at 2387, 2388. Indeed, even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual as long as they do not convey a message that compliance with their requests is required. Id. at 435, 111 S.Ct. at 2386. In Bostick, it was stated that Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), is dispositive in determining whether police conduct is coercive. In Delgado, agents of the Immigration and Naturalization Service visited factories to question employees with respect to whether they were illegal aliens. INS agents stood near the buildings' exits while other agents questioned workers on the job. The confinement that the workers felt was not the result of police activity, but was the result of the workers' voluntary obligations to their employers. Id. at 218, 104 S.Ct. at 1763-64. Consequently, there was no seizure in Delgado, because the agents' conduct gave the employees no reason to believe that they would be detained if they answered the questions honestly or if they simply refused to answer. Id.

When determining the reasonableness of a seizure on a bus, courts must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers'...