People v. Dunbar

• Decision Date: 22 December 2004
• Docket Number: Docket No. 249623.
• Citation: 690 N.W.2d 476,264 Mich. App. 240
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles DUNBAR, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

690 N.W.2d 476

264 Mich. App. 240

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles DUNBAR, Defendant-Appellant.

Docket No. 249623.

Court of Appeals of Michigan.

Submitted October 5, 2004, at Grand Rapids.

Decided October 26, 2004, at 9:05 a.m.

Released for Publication December 22, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Tony Tague, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people.

State Appellate Defender (by Norris J. Thomas, Jr., Susan J. Smith, and Valerie R. Newman) for the defendant.

Before: NEFF, P.J., and SMOLENSKI and SCHUETTE, JJ.

SMOLENSKI, J.

In this case, the police received information from a confidential informant that defendant was in possession of a quantity of cocaine. Later that same day, when defendant was stopped on the street by police officers, he had suspected cocaine and marijuana on his person. Following a bench trial, defendant was convicted of possession with intent to deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv), and possession with intent to deliver less than five kilograms of marijuana, MCL 333.7401(2)(d)(iii). He was sentenced as an habitual offender, MCL 769.10, to consecutive sentences of nine months to twenty-two years of imprisonment and three months to six years of imprisonment, respectively. Defendant appeals as of right, challenging the legality of his arrest and the procedures employed by the trial court in requiring him to repay the county for the cost of his legal fees.¹ We affirm defendant's convictions and sentences, but vacate that portion of the judgment requiring reimbursement, and remand for reconsideration.

I. Motion to Suppress

Defendant argues that the trial court erred in denying his motion to suppress evidence seized at the time of his arrest on the ground that defendant's arrest was not supported by probable cause. The prosecution argued that the evidence was admissible because defendant had abandoned the drugs. The trial court rejected this argument because case law states that drugs abandoned after an illegal seizure must be suppressed,² but nonetheless denied defendant's motion because it found that the stop and subsequent arrest of defendant without a warrant was proper. A trial court's findings of fact in a suppression hearing are reviewed for clear error; but its ultimate decision on a motion to suppress is reviewed de novo. People v. Beuschlein, 245 Mich.App. 744, 748, 630 N.W.2d 921 (2001).

At the evidentiary hearing on defendant's motion to suppress, Sergeant Tim Lewkowski, the officer in charge, testified as follows.³ On January 27, 1999, Sergeant Lewkowski received information from a reliable confidential informant that defendant was in possession of cocaine. He deemed the informant to be reliable because the informant "had made purchases prior to this occasion at which time [sic, times] we obtained narcotics." Sergeant Lewkowski had been personally involved in at least three previous drug buys made by the informant.

On the basis of the confidential informant's information, Sergeant Lewkowski and other officers from the West Michigan Enforcement Team conducted surveillance in the area where the informant had stated that defendant would be, near the intersection of Sanford and Columbia in Muskegon Heights.⁴ Sergeant Lewkowski observed the informant meeting with defendant in front of a cellular phone store in the area. He testified that the pair went behind the store for a short time, and when they emerged together in front of the store again, each went his separate way.

When defendant started walking down the street, Sergeant Lewkowski drove his vehicle to a spot in front of defendant to block his path, and another officer, Sergeant James Christianson, placed the vehicle he was driving behind defendant. Sergeant Lewkowski was in plain clothes, but had on a police undercover jacket that displayed a badge and the police logo. After Sergeant Lewkowski got out of his car, he announced that he was a police officer and asked defendant to remove his hands from his pockets as a safety precaution. Sergeant Lewkowski testified that he did not have his gun drawn and did not threaten defendant. When defendant removed only his right hand, Sergeant Lewkowski asked defendant to also remove his left hand. Defendant complied, holding his hands about shoulder height, and Sergeant Lewkowski observed a small clear plastic bag in defendant's left hand. The bag appeared to contain multiple packages within it. As Sergeant Lewkowski approached defendant, he saw that the bag contained green and white substances. Sergeant Christainson approached defendant from behind, and, as he made contact with defendant's left arm, defendant dropped two bags.⁵ Defendant was subsequently arrested.

Defendant testified at the suppression hearing that he was alone before and after he visited the cell phone store until he was confronted by Sergeant Lewkowski. According to defendant, Sergeant Lewkowski got out of his vehicle with his gun drawn and identified himself as a police officer. Defendant's testimony about what subsequently occurred was the same as Sergeant Lewkowski's, except defendant denied he had two bags in his left hand. Defendant admitted that he had one plastic bag containing marijuana, but contended that Officer Christianson found the bag of cocaine while he was searching the area, after he had already placed defendant in handcuffs. Defendant maintained that the bag of cocaine was found several feet away from him near the street curb and denied ownership of the cocaine.

A. Initial Stop

Defendant asserts that the police did not have probable cause to arrest him because the prosecution presented no evidence to establish that the confidential informant's tip was credible and stemmed from personal knowledge, other than the officer's testimony that he believed the informant was reliable. Therefore, defendant argues that the narcotics subsequently recovered are inadmissible because the arrest was illegal.

Both the United States Constitution and the Michigan Constitution guarantee the right to be free from unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. "Generally, seizures are reasonable for purposes of the Fourth Amendment only if based on probable cause."⁶People v. Lewis, 251 Mich.App. 58, 69, 649 N.W.2d 792 (2002). However, an exception to the probable cause requirement exists and applies when the police have reasonable and articulable suspicion that crime is afoot. People v. Green, 260 Mich.App. 392, 396, 677 N.W.2d 363 (2004); Lewis, supra. A person may be detained on reasonable suspicion in an investigatory stop as long as the police are diligently pursuing a means of investigation that is likely to confirm or dispel their suspicions quickly. People v. Chambers, 195 Mich.App. 118, 123, 489 N.W.2d 168 (1992). Here, the police detained defendant in order to ascertain whether he had just been involved in a drug transaction. There was no evidence presented to indicate that defendant was under arrest.⁷ The officer who made the initial contact with defendant identified himself and, for the officers' safety before questioning, asked defendant to remove his hands from his coat pockets. When defendant complied, he held what appeared to be a clear plastic bag in his left hand, which bag the officer suspected contained narcotics. Thus, the facts indicate that defendant was detained pursuant to an investigatory stop.⁸

The key initial issue, then, is whether the police had sufficient information to justify the forcible stop of defendant.

Police officers may make a valid investigatory stop if they possess "reasonable suspicion" that crime is afoot. Reasonable suspicion entails something more than an inchoate or unparticularized suspicion or "hunch," but less than the level of suspicion required for probable cause.

A valid investigatory stop must be justified at its inception and must be reasonably related in scope to the circumstances that justified interference by the police with a person's security. Justification must be based on an objective manifestation that the person stopped was or was about to be engaged in criminal activity as judged by those versed in the field of law enforcement when viewed under the totality of the circumstances. The detaining officer must have had a particularized and objective basis for the suspicion of criminal activity. [People v. Champion, 452 Mich. 92, 98-99, 549 N.W.2d 849 (1996) (citations omitted).]

Accordingly, we must consider all the facts known to the officers at the time they approached defendant to determine whether these facts constituted reasonable suspicion that defendant was involved in an illegal activity.

Defendant contends that the evidence presented at the evidentiary hearing did not establish that the police had a particularized basis for their suspicion that defendant had drugs on his person or otherwise was involved in an illegal activity. Defendant argues that the information provided by the confidential informant, combined with no independent investigation by the police, amounted to no more than a "hunch" that defendant was involved in a crime. We disagree.

Even when an investigatory stop is based, at least in part, on information from an informant, the critical inquiry remains whether the officer's suspicion was reasonable when considered in light of the totality of circumstances. People v. Tooks, 403 Mich. 568, 575-576, 271 N.W.2d 503 (1978).⁹ Part of this reasonableness inquiry includes considering the reliability of the informant's information. In Id. at 577, 271 N.W.2d 503, our Supreme Court set forth three factors that a court should examine when making this determination: "(1) the reliability of the particular informant, (2) the nature of the particular information given to the police, and (3) the reasonability of the suspicion in light of the above factors."¹⁰

...