People v. Kirchoff

• Citation: 74 Mich.App. 641,254 N.W.2d 793
• Decision Date: 31 March 1977
• Docket Number: Docket No. 24831
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Jon KIRCHOFF, Defendant-Appellant. 74 Mich.App. 641, 254 N.W.2d 793
• Court: Court of Appeal of Michigan (US)

Page 793

254 N.W.2d 793

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Jon KIRCHOFF, Defendant-Appellant.

Docket No. 24831.

74 Mich.App. 641, 254 N.W.2d 793

Court of Appeals of Michigan.

March 31, 1977.

Released for Publication June 21, 1977.

[74 MICHAPP 642] Robert R. Ferguson, Alpena, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Roger C. Bauer, Pros. Atty., Keith D. Roberts, Director, Pros. Attys., App. Service, Lansing, for plaintiff-appellee.

Before BRONSON, P. J., and ALLEN and D. E. HOLBROOK, Jr., JJ.

PER CURIAM.

Defendant appeals of right his February 27, 1975 jury conviction for possession of marijuana with intent to deliver, contrary to M.C.L.A. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c). He was sentenced to three years probation with the first 90 days to be served in the county jail, and fined $100.

[74 MICHAPP 643] About 11:20 p. m. on the night of May 30, 1974 and while on routine patrol in Alpena, city police officers Bell and Anderson observed the defendant walking along Ninth Street carrying a knapsack. Defendant was known to the officers who, as they drove past him, made a radio inquiry as to any outstanding arrest warrants issued against defendant. They were informed there were none. Within a few blocks the officers saw another policeman, Officer Byers, in a vehicle with lights flashing. Byers inquired if they were looking for a long haired young fellow with a knapsack. When the officers stated that they were, Byers responded that after observing the patrol car, defendant started "running like hell . . . looking back over his shoulders". Evaluating this information as "suspicious", Bell and Anderson turned their car around and gave chase, finally pulling into a residence driveway within four or five feet of defendant. When Officer Bell called out "Tom, come here a minute" the defendant turned and ran. The officers exited the patrol car, giving chase on foot. Pursuit continued a distance of some 100 yards during which defendant threw down the knapsack. Within a few steps after throwing away the knapsack, defendant was apprehended by Officer Bell. Upon retrieving the knapsack the officers found a brown paper bag containing suspected marijuana wrapped in 39 separate baggies. Chemical analysis of six baggies, randomly selected out of the 39, disclosed marijuana. Over objection, all 39 baggies, weighing approximately three pounds, were introduced in evidence.

As his primary claim of error, defendant claims the trial court erred in failing to grant defendant's motion to suppress in evidence the contents of the paper bag. We respond by focusing on two questions[74 MICHAPP 644] : (I) whether the initial stop was lawfully justified, and (II) whether the seizure and search of the knapsack were lawfully justified.

I. The Initial Stop.

It is clear from the record that the officers' initial stop of the defendant was for investigative purposes only. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the leading case on investigative stops, the Court held that such stopping must be supported by "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion". Terry v. Ohio, supra, 21, 88 S.Ct. 1880, Young v. United States, 140 U.S.App.D.C. 333, 336, 435 F.2d 405, 408 (1970). Again, in Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616 (1972), the Supreme Court reiterated and approvingly summarized the rules governing investigative stops as follows:

"In Terry this Court recognized that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest'. (Citation omitted). The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. (Citation omitted). A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time."

Thus, the constitutional validity of the stop in the [74 MICHAPP 645] instant case must be evaluated by focusing upon the reasonableness of the governmental intrusion complained of in light of the "specific and articulable facts" available to Officers Bell and Anderson at the time. When the officers first observed defendant walking along the sidewalk they had less cause for an investigative stop than the stop held to be unreasonable in People v. Parisi, 393 Mich. 31, 222 N.W.2d 757 (1974). But when informed moments later by Officer Byers that defendant, after observing the officer, started running, looking over his shoulder, reasonable cause for an investigative stop came into being. Additional cause for a stop arose when defendant fled when called to by Officer Bell. See People v. Rivers, 42 Mich.App. 561, 202 N.W.2d 498 (1972). We conclude the initial stop was lawfully justified.

II. The Seizure.

Plaintiff asserts that defendant lacks standing to challenge the legality of the seizure in light of the fact that defendant abandoned the knapsack immediately prior to his apprehension. The law is clear that "a valid finding of abandonment deprives (defendant) of standing to assert a claim that the items of evidence in question were improperly 'seized' ". Parman v. United States, 130 U.S.App.D.C. 188, 399 F.2d 559, 565 (1968). See generally Abel v United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1959), reh. den., 362 U.S. 984, 80 S.Ct. 1056, 4 L.Ed.2d 1019 (1960); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); United States v. Robinson, 430 F.2d 1141 (CA 6, 1970); United States v. Cox, 428 F.2d 683 (CA 7, 1970); Friedman v. United States, 347 F.2d 697 (CA 8, 1965), and People v. Mason, 22 Mich.App. [74 MICHAPP 646] 595, 178 N.W.2d 181 (1970). In defining the concept of abandonment, the Friedman Court stated:

"Abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent. How did the person who was supposed to have abandoned the property act, that is, what did he do, and, second, what was his intention? These call for factual determinations." Friedman, supra, 704. (Emphasis supplied.)

Thus, any determination by us that the defendant had or had not abandoned the knapsack requires an examination of the evidence to determine whether or not the intent to abandon was present. The pertinent facts can best be summarized by quoting from the trial transcript:

"Q (by assistant prosecuting attorney) I see. What was his response? What did he do?

"A . . . He ran between the houses behind some hedge and as he ran between the houses, he threw the knapsack down and took a couple more steps and I grabbed ahold of him and then I retrieved the knapsack and turned Mr. Kirchoff over to Officer Anderson.

"Q And when he was apprehended, did he have the knapsack?

"A No. Just before I grabbed ahold of him, he had thrown the knapsack down.

"Q Where did he throw it?

"A . . . We were before the houses between 331 Long Lake and the house south of it and we ran in between there and as I got closer to him, he took the knapsack and threw it and took a couple more steps and I grabbed ahold of him."

To us, the quoted testimony bespeaks an intention to continue in flight without the burden of the knapsack. Defendant did not throw the knapsack [74 MICHAPP 647] down and stand beside it or stop. He continued in flight. Justice Oliver Wendell Holmes spoke to a similar factual situation in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). There, Federal revenue agents, concealed some 50 to 100 yards away, saw defendant Hester and one Henderson with a bottle and jug suspected of containing moonshine whiskey. When one of the officers gave chase and fired a shot, Hester dropped the jug and Henderson threw away the bottle. The court found...