People v. Champion, Docket No. 132469

• Decision Date: 20 June 1994
• Docket Number: Docket No. 132469
• Citation: 518 N.W.2d 518,205 Mich.App. 623
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Ray CHAMPION, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 518

518 N.W.2d 518

205 Mich.App. 623

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Ray CHAMPION, Defendant-Appellant.

Docket No. 132469 Court of Appeals of Michigan.

Submitted Sept. 15, 1993, at Lansing.

Decided June 20, 1994, at 9:00 a.m.

Released for Publication July 18, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Michael D. Thomas, Pros. Atty., and Edwin R. Brown, Asst. Pros. Atty., for the People.

Daniel D. Bremer, Flint, for the defendant on appeal.

Before McDONALD, P.J., and SAWYER and MARILYN J. KELLY, JJ.

MARILYN J. KELLY, Judge.

Defendant appeals as of right from his convictions for possession of less than twenty-five grams of cocaine and as a habitual fourth felony offender. M.C.L. § 333.7403(2)(a)(v); M.S.A. § 14.15(7403)(2)(a)(v); M.C.L. § 769.12; M.S.A. § 28.1084. The judge sentenced him to five to fifteen years in prison. His sentence was made consecutive to one he was then serving for a different offense. On appeal, defendant argues error in the denial of his motion to suppress cocaine which he claims was improperly seized. He also urges that his sentence was disproportionate under People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990). We reverse.

I

Two Saginaw police officers, driving through a high crime and drug area of the city, saw a man standing alone on a street corner. The officer driving the car was a twenty year veteran. His partner had been on the force for approximately six months. Upon spotting the squad car, the man turned and ran down a side block. One of the officers later testified he believed the man shouted a warning to someone. The officers chased the man. On turning the corner, they saw two men running in the opposite direction and a third, defendant, walking or running from a car parked mid-block. He held his hands in the inside front of his sweatpants.

The officers detained him. One of the officers recognized defendant from previous weapons and drug arrests and knew he had a prison record. Defendant did not remove his hands from his pants despite repeated instructions to do so. Fearing that defendant had a weapon, the officers performed a pat-down. One of the officers found a pill bottle in his groin area. The officer removed the bottle and, examining it, saw that it contained cocaine.

The officers arrested defendant for possession and performed an inventory search of the car. There, they found cocaine in the false bottom of a can of Fix-a-Flat.

Defendant twice moved to suppress the physical evidence, claiming that it had been improperly seized. Each time, based on the totality of the circumstances, the court concluded that the stop and search had been valid and the challenged evidence was admissible. However, at the second suppression hearing, which occurred at mid-trial, the judge found, contrary to his original opinion, that the veteran officer's chronicle of the stop was not credible. Rather, he found credible the considerably different version given by the rookie officer. Based on the rookie officer's testimony, the judge ruled that defendant had been seized the moment the officers got out of their car. They had ordered defendant to stop and had begun running after him. A reasonable person would not have believed himself free to leave at that point.

A jury convicted defendant of possession of less than 25 grams of cocaine. He then pled guilty as a habitual fourth offender and was sentenced.

II

Two issues must be resolved by our Court. First, whether this was an investigative stop or an arrest. Second, whether the scope of the search was proper. It should be noted that admissibility of the cocaine depends on whether the police exceeded their authority to search, given the circumstances.

The Fourth Amendment of the United States Constitution and its Michigan counterpart guarantee the right of people to be secure against unreasonable searches and seizures. The right is subject to a few specifically established and well defined exceptions. U.S. Const., Am. IV; Const. 1963, art. 1, § 11; Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S.Ct. 409, 410-11, 83 L.Ed.2d 246 (1984). One arises when a police officer observes behavior which leads him to conclude that a party has engaged, or is about to engage, in criminal activity. Then, the officer is permitted to stop the party and make reasonable inquiries regarding his suspicion. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

A constitutionally proper investigative stop must satisfy a two part test. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). The totality of the circumstances must yield a particularized suspicion that the individual being investigated has been, is or is about to be, engaged in criminal activity. The totality is that as understood by a law enforcement officer. Id., at 418, 101 S.Ct. at 695. The suspicion must be reasonable and articulable. Terry, 392 U.S. at 21, 88 S.Ct. at 1879-80.

While an investigative stop may be valid under many circumstances, the scope of the search of the suspect's person incident to a Terry stop is strictly limited. The limitation is "to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Terry, at 26, 88 S.Ct. at 1882.

In contrast to an investigative stop which requires a reasonable articulable suspicion that criminal activity is afoot, an arrest may take place solely where there is probable cause:

"This Court repeatedly has explained that 'probable cause' to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." [People v. Shabaz, 424 Mich. 42, 58, 378 N.W.2d 451 (1985), quoting Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979).]

We are persuaded that an investigative Terry stop was reasonable under the totality of the circumstances here. Particularized suspicion arose as a result of the following factors: (1) the area was a known drug crime area, (2) a man, seeing a marked police car, ran from sight around a corner, (3) as officers turned the corner, two men got out of a car parked midblock, (4) the passenger and the man at the corner ran away, (5) the driver made some movement away from the car, (6) he was known by the police to have previous drug and weapons convictions, (7) he held his hands inside the front of his sweatpants and (8) he refused several police orders to remove his hands from his sweatpants.

Defendant's behavior created a reasonable, articulable suspicion to permit a police officer to stop and investigate. Consequently, a patdown search for weapons was also permitted. See also Minnesota v. Dickerson, 508 U.S. ----, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); People v. Nelson, 443 Mich. 626, 639, 505 N.W.2d 266 (1993).

However, despite the prosecutor's arguments to the contrary, we are not persuaded that the police had probable cause to arrest defendant. We acknowledge that the arrest occurred in a known drug crime area and that the parties had fled from a parked car upon seeing police officers in a marked car. We recognize, as well, that the police officers knew defendant. But we do not believe that defendant's conduct created probable cause to arrest.

Probable cause to arrest exists if the facts available to the officer at the moment of arrest would justify a fair-minded person of average intelligence to believe that the suspected person has committed a felony. [People v. Thomas, 191 Mich.App. 576, 579, 478 N.W.2d 712 (1991), citing People v. Oliver, 417 Mich. 366, 374, 338 N.W.2d 167 (1983).]

In Nelson the police had observed defendants spend four minutes in a known drug house and had witnessed a controlled drug buy there a short time earlier. They had heard a person from the house comment that a runner had been sent to get more drugs for distribution. Even so, they did no more than conduct a Terry stop of defendants' vehicle.

Here, the prosecution cannot persuasively argue that the officers had anything more than a similar reasonable and articulable suspicion. The occupants of the car were not at a known drug sales location. They were not under surveillance. There was no controlled drug buy or conversation with an informant. The men had been observed at most for several seconds rather than minutes before the police detained defendant.

III

Since the stop here was merely a valid Terry stop, the police were not entitled to engage in a search as sweeping as that permitted incident to a valid arrest. The scope and validity of the search the officers conducted must be measured against a valid Terry patdown.

The United States Supreme Court recently concluded that police officers may seize nonthreatening contraband detected during a protective patdown permitted by Terry; however, the search must stay within the bounds permitted by Terry. Minnesota v. Dickerson, 508 U.S. at ----, 113 S.Ct. at 2136, 124 L.Ed.2d at 344. The Court clearly articulated what quickly became known as the "plain feel" exception to the warrant requirement, something analogous to the "plain view" exception. It is defined in Dickerson:

If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its...