People v. Lambert

• Citation: 436 N.W.2d 699,174 Mich.App. 610
• Decision Date: 15 March 1989
• Docket Number: Docket No. 100239
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Darius Earl LAMBERT, Defendant-Appellant. 174 Mich.App. 610, 436 N.W.2d 699
• Court: Court of Appeal of Michigan (US)

Page 699

436 N.W.2d 699

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Darius Earl LAMBERT, Defendant-Appellant.

Docket No. 100239.

174 Mich.App. 610, 436 N.W.2d 699

Court of Appeals of Michigan.

Submitted April 13, 1988.

Decided Feb. 6, 1989.

Released for Publication March 15, 1989.

[174 MICHAPP 611] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Dennis M. Swain, Pros. Atty., for the People.

Marian Kromkowski, Detroit, for defendant-appellant on appeal.

Before SHEPHERD, P.J., and SAWYER and MacDONALD, ^* JJ.

SHEPHERD, Presiding Judge.

Defendant pled guilty to breaking and entering an unoccupied building with intent to commit larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. His guilty plea was conditioned upon being allowed to raise on appeal issues related to the trial court's denial of certain pretrial motions to [174 MICHAPP 612] suppress evidence. Defendant was sentenced to serve 2 1/2 to 10 years in prison. He appeals as of right. This case raises the question of whether, after improperly detaining a citizen and then discovering that they have a valid basis for making an arrest, the police may make the lawful arrest and properly obtain evidence that flows from such an arrest. We hold that they may do so and, therefore, we affirm.

At approximately 5:30 a.m. on July 24, 1986, two Manistee County Sheriff's deputies, Dale Kowalkowski and Douglas Cermak, responded to a silent alarm from a garage located in rural Manistee County. The deputies arrived on the scene fifteen to twenty minutes later and discovered that the garage had been broken into and that one or more all-terrain vehicles may have been removed. The deputies left the scene and drove north, looking into the woods for evidence of the vehicles. At approximately 6:00 a.m., the deputies saw a van traveling south. They decided to stop the van to determine if the driver saw any vehicles in the area. At that point, neither the driver nor the van was suspected of having been involved in the break-in and the deputies admit that they had no probable cause to believe that the van or its driver had been involved in any crime.

As the deputies made a U-turn to pursue the van, the van accelerated. The deputies accelerated to pursue the van, but the van continued to accelerate and pull away from them. At that point, the deputies activated their overhead lights and the van pulled to the side of the road. The deputies approached the vehicle and Deputy Kowalkowski recognized the driver as defendant. Kowalkowski was aware that there were two or three outstanding bench warrants for defendant's arrest and, accordingly, placed defendant under arrest on [174 MICHAPP 613] those warrants. The deputy summoned a tow truck to impound the van, apparently on the basis that it had been determined that there was no insurance covering the van.

While seated in the back of the patrol car, defendant said to Deputy Cermak that he had broken into the garage and that items stolen from the garage were in the back of the van. At this point, Deputy Cermak advised defendant of his constitutional rights, after which defendant again stated that he had been involved in the break-in and that he had cut a hole in the garage door and removed items from the garage. Defendant then gave the deputy permission to search the van. A search of the van revealed fruits of the crime. Sometime later, after defendant had been brought to the police station, he was turned over to a detective for questioning, was again advised of his constitutional rights, and he again gave an inculpatory statement.

On appeal, defendant claims that the trial court erred in refusing to suppress the physical evidence seized from the van on the basis that the initial stop of defendant by the deputies was without probable cause or reasonable suspicion and, therefore, the evidence found pursuant to the search were fruits of the poisonous tree. At the suppression hearing below, the trial court ruled to admit the physical evidence because the deputies' actions were lawful.

Initially, we note that a trial court's ruling at a suppression hearing will not be disturbed unless it is clearly erroneous. People v. Payton, 166 Mich.App. 428, 430, 421 N.W.2d 191 (1988). The narrow questions we must decide in reviewing the court's decision here are whether the initial stop of the van was lawful and whether the evidence seized as a result of the stop was inadmissible as the fruit of [174 MICHAPP 614] the poisonous tree. We answer both questions in the negative.

In reviewing the lawfulness of the stop, it is important to note that the record does not indicate that defendant violated any traffic laws or was stopped for this purpose. Although he did not do so immediately, defendant nevertheless pulled over to the side of the road after the deputies activated the overhead lights of their vehicle. The evidence indicated that the officers knew two things when they activated the lights to stop defendant: (1) that they wanted to ask defendant whether he had any information that would assist them in their investigation of a recent crime; and (2) that defendant drove evasively while being "chased" by the deputies before they signaled him to stop.

The first ground did not provide the deputies with authority to stop defendant as a citizen has no duty to stop and answer questions when approached by a police officer in a public place. The citizen may decline to listen to the questions at all and may go on his way. People v. Shabaz, 424 Mich. 42, 56-57, 378 N.W.2d 451 (1985), cert. gtd., 475 U.S. 1094, 106 S.Ct. 1489, 89 L.Ed.2d 891 (1986), dismissed as moot, 478 U.S. 1017, 106 S.Ct. 3326, 92 L.Ed.2d 733 (1986).

The second ground requires a consideration of whether the stop was lawful under the "stop and frisk" doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, investigative stops are lawful if the law enforcement officers have a reasonable, articulable suspicion that a person has committed or is about to commit a crime. Shabaz, supra, 424 Mich. at p. 57, 378 N.W.2d 451; Payton, supra, 166 Mich.App. at p.p. 430-431, 421 N.W.2d 191. "Investigative pursuits" or "chases" have also been upheld as lawful police conduct without any requirement of a reasonable, articulable suspicion of criminal activity so long as the police conduct was not "so intimidating" that the person could have reasonably believed that he was not [174 MICHAPP 615] free to disregard the police presence and go about his business. Michigan v. Chesternut, 486 U.S. ----, 108 S.Ct. 1975, 1981, 100 L.Ed.2d 565, 573 (1988). Whether or not the police conduct violates the Fourth Amendment and amounts to an unlawful seizure continues to be evaluated on the basis of a consideration of all the circumstances surrounding the incident in each case. Id., 486 U.S. at ----, 108 S.Ct. at 1979, 100 L.Ed.2d at 571.

Here, there was evidence of flight after the deputies made a U-turn with the objective of stopping the defendant to seek his assistance in their investigation of a recent crime. They had no suspicion that defendant was involved in that crime and there is no evidence that defendant drove unlawfully or failed to respond to any signal to stop. At best, Deputy Kowalkowski was able to articulate his suspicions as follows:

"A. We turned around. He had gone past us to the south. We turned around and we were in the process of catching up to the van. We were accelerating quite rapidly and we were not catching up to the van. He was still in Manistee County, that stretch of road is. I would have to get a map out but I would guess we were a mile and a half from the county line or two miles at that point because we were north of the Nine Mile Bridge then.

"Q. What did this van do as you attempted to catch up to it.

"A. Well, it accelerated. I was driving the car and I was trying to catch up and I saw I wasn't catching up to him and I turned and asked Doug if he was--if he believed that the van was accelerating and he said yes.

* * *

"Q. Continue please.

"A. Well, Deputy Cermak believed the van was accelerating, too. He told me that. Madison Road ends at--well, it doesn't end at the county line but [174 MICHAPP 616] where the Manistee County line ends or where I believe it ends the county line road crosses that intersection and goes east. The van we were pursuing turned east onto the county line road. If it has a name, I don't know what it is. That is a dirt road that is unimproved and it has several big curves in it. We turned the corner behind the van and caught up to it about a quarter of a mile down the road. We activated our overhead lights to get him to stop a quarter of a mile to a half mile to get him to stop and he pulled over, not immediately, but he continued on down the road a little ways and then he pulled over."

Although a factor, flight alone is not enough to justify a Terry stop. Payton, supra, 166 Mich.App. at p. 431, 421 N.W.2d 191. There must be other circumstances that make the import of the defendant's flight less ambiguous. Shabaz, supra, 424 Mich. at p. 62, 378 N.W.2d 451.

Here, it was certainly reasonable for the deputies to be suspicious of defendant's flight from their vehicle after they made the U-turn, even though defendant drove lawfully and did not exceed the speed limit. However, this was not enough to supply the deputies with articulable grounds for concluding that criminal activity was afoot. It is only this reasonable belief that criminal activity is afoot that justifies a stop under Terry. Having considered the totality of the circumstances surrounding the deputies' decision to signal defendant to stop, we conclude that the trial court clearly erred in finding that the initial stop of the defendant was lawful.

Our holding does not, however, require reversal since the trial court correctly ruled to admit the evidence and we will not reverse a trial court when it reaches the correct result for...