People v. Harris

• Decision Date: 21 January 1988
• Docket Number: Docket No. 84684
• Citation: 417 N.W.2d 502,164 Mich.App. 567
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kenneth Kelly HARRIS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 502

417 N.W.2d 502

164 Mich.App. 567

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kenneth Kelly HARRIS, Defendant-Appellee.

Docket No. 84684.

Court of Appeals of Michigan.

Submitted Aug. 3, 1987.

Decided Sept. 17, 1987.

Released for Publication Jan. 21, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

State Appellate Defender by Kim Robert Fawcett, for defendant-appellee on appeal.

Before SHEPHERD, P.J., and HOOD and T.M. BURNS, ^* JJ.

PER CURIAM.

Defendant was charged with one count of carrying a concealed weapon, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424, and was bound over to Detroit Recorder's Court for trial following a preliminary examination. At the Recorder's Court, defendant filed a motion to suppress evidence of the handgun which had been seized from him. At the conclusion of an evidentiary hearing, Wayne Circuit Judge Marvin R. Stempien, sitting in Recorder's Court, granted defendant's motion. Thereafter, the information filed against defendant was quashed. The people now appeal as of right from the ruling of the Recorder's Court judge suppressing evidence of the handgun.

At the evidentiary hearing, Detroit Police Officer Fred Jorgensen testified that, at approximately 12:00 midnight, he and his partner, Terrence Wrona, were on routine patrol when they received a police radio dispatch of a "man with a shotgun in front of 2586 Harding" in the City of Detroit. As the officers were approaching the address with the headlights of their car off, Jorgensen observed three black males standing on the sidewalk in front of a vacant field, one of whom appeared to be holding a shotgun. As the officers pulled up, Officer Wrona turned on the headlights and a spotlight. The men began moving and both officers got out of the police car and requested that all three men stop. According to Jorgensen, the man holding the shotgun dropped it in the field. Meanwhile, one man threw a shiny object into the field as he walked south on the sidewalk. Lastly, the third man, identified as defendant, walked northward on the sidewalk. Defendant did not stop when Jorgensen ordered him to do so. Instead, he continued walking and was about fifty feet from the spot where he was first observed before Jorgensen stopped him by physically taking him by the arm. Jorgensen then led defendant back to the police car and frisked him. He found a handgun in defendant's right jacket pocket.

Officer Jorgensen testified that he initially stopped defendant in order to question him concerning the man who was holding the shotgun. He frisked defendant merely as a precautionary measure.

Officer Wrona also testified at the evidentiary hearing. His testimony was similar to Officer Jorgensen's testimony.

Defendant's testimony presented a different story. He lives at the residence that borders on the north side of the vacant lot. At approximately midnight on the night he was arrested, he was getting out of his car when he noticed two persons, Roland Rawlins and Larry Harris (no relative), talking together approximately forty to fifty feet away on the sidewalk. Defendant was not talking with either of the two men. Defendant testified that when he saw the police car approaching, he was walking northward towards his home. He heard someone say "Hold it," "Stop," or "Come back" and he stopped by his gate. A police officer then grabbed him, led him back to the patrol car and frisked him.

In granting defendant's motion to suppress evidence of the handgun, the Recorder's Court judge noted that the officer had to go "fifty feet up the sidewalk to bring defendant back before he [the officer] made the intrusion [frisked defendant]" and that defendant had not committed any crime that would have justified the officer's stop. The judge concluded:

"[T]he officer, even by his own version, had to go fifty feet up the sidewalk to get this defendant and bring him back in order to conduct the pat down. That certainly does not indicate as a matter of fact that there was any imminent danger to the officer under Terry v. Ohio that would cause him to have a necessity to pat this individual down.

"If he really felt he was in imminent danger, the pat down would have taken place where he seized the defendant.

"So it appears to me that the defendant was doing nothing that was unlawful that would cause the officer to stop and arrest this individual. He never was arrested for anything.

"Therefore, the court would find that the officer didn't have reasonable grounds to apprehend this defendant, therefore, I will grant the motion to suppress the evidence."

Appellate review of grants or denials of motions to suppress evidence is made on the clearly erroneous standard. People v. Burrell, 417 Mich. 439, 339 N.W.2d 403 (1983). A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made. People v. United States Currency, 148 Mich.App. 326, 383 N.W.2d 633 (1986).

Since defendant was not under arrest nor was there probable cause for an arrest at the time of the pat-down search, resolution of this case is governed by the "stop and frisk" rules of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,...