People v. Dixon

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM; BASHARA
• Citation: People v. Dixon, 271 N.W.2d 196, 85 Mich.App. 271 (Mich. App. 1978)
• Decision Date: 21 August 1978
• Docket Number: Docket No. 77-4636
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis J. DIXON, Defendant-Appellant. 85 Mich.App. 271, 271 N.W.2d 196

Page 196

271 N.W.2d 196

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis J. DIXON, Defendant-Appellant.

Docket No. 77-4636.

85 Mich.App. 271, 271 N.W.2d 196

Court of Appeals of Michigan.

Aug. 21, 1978.

Released for Publication Nov. 13, 1978.

[85 MICHAPP 274] Robert L. Hencken, Kalamazoo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Gregart, Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P. J., and BASHARA and MAHER, JJ.

PER CURIAM.

Found guilty, on August 18, 1976, of armed robbery in a jury trial, defendant was sentenced to a term of 8 to 20 years imprisonment.

Two individuals, later identified as defendant and Curtis Weekly, were spotted at 5:08 a. m. by two police officers. They were seen running from a McDonald's parking lot, across the street, and into a Sunoco gas station. One of the officers who spotted the individuals running testified that since there had been a past history of break-ins in the area during the early morning hours, police suspicions were aroused. The officers stopped the individuals to investigate. They conducted a pat-down search, which produced nothing, and placed them in the patrol car. The other officer then testified that they drove back into the McDonald's parking [85 MICHAPP 275] lot and began to check the stores in the area to be sure no break-in had occurred.

About 15 minutes later, at 5:25 a. m., the officers received a message that one Curtis Weekly and another person were involved in an armed robbery. Only Weekly disclosed his identity to the officers. At this point defendant and Weekly were placed under arrest.

After the arrest, defendant was searched and allegedly stolen money was seized from his person. One of the officers retraced the defendant's footprints and found a knife buried in the snow. Defendant and Weekly were placed in separate cars and were taken back to the place where the victim was reporting the crime.

The victim, Arzell Givhan, reported that, after an early morning gambling party, at which he had modest winnings, he left the scene of the party and was approached by defendant and Weekly, who had also been at the party and who asked for a ride to the north side of town. Givhan stated he refused. As he began to walk to his car, the victim testified, Weekly and defendant caught up to him. Weekly pulled a knife ¹ and held it to Givhan's throat, while defendant went through the victim's pockets and wallet. When the men released him, they fled. Givhan eventually called police.

When Weekly and the defendant were returned to the scene, Givhan was led to the first vehicle containing Weekly and identified him. Givhan was then led to the second car containing defendant where he stated that the defendant was "the other one". Defendant and Weekly were then taken to the police station.

[85 MICHAPP 276] Defendant alleges a number of errors at the trial court level. We address two of his claims. On appeal, defendant contends that the stop and detention were illegal and that the evidence which was found as a direct result of the illegal stop and detention should, therefore, be suppressed.

A police officer may "in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest". Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). It is not unlawful for a police officer to stop persons when he has observed "unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot". People v. Whalen, 390 Mich. 672, 680, 213 N.W.2d 116, 120 (1973). In justifying the intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. 1868.

In the instant case, both the initial stop by the police officers and the subsequent 20 minute detention of defendant must be tested by the standards of Terry and its progeny. The original stop of defendant by the police officers appears to have been justified under the Terry v. Ohio rationale. Though there was no probable cause for arrest, the officers could point to articulable facts which warranted the intrusion. Defendant was found in the very early morning hours running in an area which had recently been the scene of many early morning break-ins. An investigative stop to ask defendant for identification and to inquire into the nature of his business was not uncalled-for.

However, the detention of defendant and Curtis [85 MICHAPP 277] Weekly in the squad car for 20 minutes cannot be justified under Terry v. Ohio. An investigative stop must be justified at its inception and must be reasonably related in scope to the circumstances which justified the interference in the first place. Here the justification for the stop was defendant's running in the early morning in an area where there had been a recent rash of break-ins. But defendant was further detained while one of the officers surveyed the surrounding area to make sure no criminal activity was afoot. This detention was wrongful; there was no justification for it as it was completely unrelated to the initial interference by the officers.

Terry v. Ohio permits only a brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Detention for something more cannot be justified under Terry v. Ohio, supra. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Under Terry, the officer making the stop must be suspicious at the time the stop is made that criminal activity is afoot. Although the police in this case were somewhat suspicious when defendant was first stopped, they had no further authority to detain defendant afterward while one of the officers went to check to see if criminal activity were afoot. The scope of the police power to detain must be related to the justification for the stop at its inception not to an after-found justification.

Here the police merely saw two men running in the early morning, a not uncommon sight in our times. Nor did the police proffer any facts to justify the intrusion upon defendant's freedom. Nothing elicited from defendant or his companion would give any cause to increase police suspicions. [85 MICHAPP 278] They, in fact, failed to ask for an explanation of defendant's activities as suggested in People v. Williams, 63 Mich.App. 398, 234 N.W.2d 541 (1975). Therefore, the police, in detaining defendant, could not have been attempting to verify the explanation a practice apparently approved in People v. Williams, supra, and People v. Rivers, 42 Mich.App. 561, 202 N.W.2d 498 (1972).

Our Court has confronted before the "difficult situation confronting a police officer when his investigation has failed to resolve suspicions concerning an individual who has been temporarily detained". In People v. Williams, supra, the Court said:

"Briefly stated, there comes a time after a temporary detention when the officer must either arrest the stopped individual or allow him to go free. See United States v. Luckett, 484 F.2d 89 (CA 9, 1973). An arrest can occur only when the facts satisfy the officer that he has probable cause to believe the individual has committed an offense. Without probable cause, even though the investigation has proved inconclusive, the officer must then disengage the individual from official confrontation. See Young v. State, 339 A.2d 723 (Del., 1975), and Coleman v. United States, 337 A.2d 767 (D.C.App., 1975)." 63 Mich.App. at 404, 234 N.W.2d at 545.

As Williams said, a line must be drawn. 63 Mich.App. at 403, 234 N.W.2d 541. In this case the officers crossed that line and because of their transgression, they discovered both the money and the knife. Had defendant been only stopped instead of illegally detained, the discovery would not have been made. Since the evidence was the product of the illegal detention, it should have been suppressed.

Defendant also complains that he was denied his Sixth Amendment right to counsel and his Fourteenth Amendment right to due process when, [85 MICHAPP 279] after his arrest, he was returned to the complainant's home for immediate identification.

A suspect is entitled to have counsel present whenever he is physically confronted by a witness asked to identify him. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). However, as our Supreme Court has noted, an exception to this rule has developed: an attorney is not required if the police apprehend a suspect within minutes after the crime and return him to the scene of the crime for identification. People v. Anderson, 389 Mich. 155, 187, n.23, 205 N.W.2d 461 (1973). Anderson cites Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280 (1969), for the justification for the absence of counsel at an identification procedure though the assumptions upon which Russell is premised have been assailed. See Grano, Kirby, Biggers, and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent, 72 Mich.L.Rev. 717, 733-738 (1974).

Defendant argues that the exception briefly delineated in Anderson should not apply in a case where the police clearly suspect that the defendant has committed the crime; that is, where they do not have to ascertain whom to take into custody. Our Supreme Court, while noting Russell in Anderson, appears to have in part rejected the reasoning espoused in Russell and to have adopted the reasoning urged upon us by defendant.

In People v. Patskan, 387 Mich. 701, 199 N.W.2d 458 (1972), three men attempted to rob a bar-restaurant. One of the men placed a gun in the ribs of the complainant who was an employee and helped search him. A silent alarm had...