People v. Laube

• Decision Date: 27 January 1987
• Docket Number: Docket No. 88905
• Citation: 397 N.W.2d 325,154 Mich.App. 400
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brian Conrad LAUBE, Defendant-Appellant. 154 Mich.App. 400, 397 N.W.2d 325
• Court: Court of Appeal of Michigan — District of US

Page 325

397 N.W.2d 325

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brian Conrad LAUBE, Defendant-Appellant.

Docket No. 88905.

154 Mich.App. 400, 397 N.W.2d 325

Court of Appeals of Michigan.

Submitted April 16, 1986.

Decided Sept. 8, 1986.

Leave to Appeal Jan. 27, 1987.

[154 MICHAPP 401] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Garry W. Rapp, Pros. Atty., for the people.

James R. Neuhard, State Appellate Defender by Mardi Crawford, Detroit, for defendant-appellant on appeal.

[154 MICHAPP 402] Before ALLEN, P.J., and MacKENZIE and SWALLOW, ^* JJ.

ALLEN, Presiding Judge.

On January 23, 1984, defendant entered a conditional guilty plea to a charge of larceny in a building, M.C.L. Sec. 750.360; M.S.A. Sec. 28.592. It was understood that by entering the plea defendant would not waive his right to assert as error on appeal the denial of his motion to suppress evidence which was based on an alleged illegal search and seizure. See, People v. Perez, 143 Mich.App. 718, 720-721, 373 N.W.2d 202 (1985), lv. gtd. 424 Mich. 879 (1986). In exchange for the plea, a second charge of larceny in a building and a charge of possession of marijuana were dismissed. Defendant was sentenced on August 19, 1985, to from sixteen months to four years in prison. He appeals his conviction as a matter of right, raising only the suppression of evidence issue.

At approximately 3:45 a.m. on September 1, 1983, Iosco County deputy sheriffs Ronald Gwizdala and Roger Williams observed the defendant on US 23 near East Tawas, walking with traffic on the shoulder of the northbound lane. Although Gwizdala testified that the defendant was hitchhiking, Williams gave inconsistent statements with respect to whether he was hitchhiking. It appears, however, that hitchhiking was not illegal on this road as it was not limited-access highway. See M.C.L. Sec. 257.679a; M.S.A. Sec. 9.2379(1).

The deputies, who were in a patrol car, approached the defendant and asked him what he was doing. They later cited the following facts as their reasons for stopping the defendant: (1) the fact that he was hitchhiking; (2) the fact that he was committing a civil infraction by not walking in a northerly direction in the southbound lane, [154 MICHAPP 403] against traffic, see M.C.L. Sec. 257.655; M.S.A. Sec. 9.2355; (3) the fact that defendant was wearing dark clothing; (4) the fact that defendant was near a business area; (5) the early hour of the morning; and (6) that the deputies had not seen anyone on the road fifteen minutes earlier. Williams stated at one suppression hearing that the deputies were "just suspicious."

Both Williams and Gwizdala testified that when they approached the defendant, the defendant asked them for a ride. The defendant denied this claim but admitted that it had been raining that evening and that he had left Flint at least three hours earlier. The lower court found that the deputies' assertion was valid.

The deputies asked the defendant for identification in contemplation of giving him a ride. According to the deputies, defendant willingly furnished the identification. They then ran a check of defendant on the LEIN computer. While they were waiting for the results, the defendant kept putting his hands in his pockets and was moving towards the back of the patrol car. When Williams asked the defendant to remove his hands from his pockets, he did so but, momentarily, he put his hands back in his pockets. In addition, he appeared nervous. The defendant testified that this behavior was most likely due to the fact that he was cold. However, defendant admitted that he never indicated to the deputies that he was cold. Deputy Williams did a pat-down search for weapons because of this behavior. Defendant did not manifest any objection to this search.

During the pat-down search, Williams felt something in the defendant's shirt or jacket pocket which he said felt like a Kleenex or a baggie of marijuana. According to Gwizdala, Williams asked the defendant what it was, at which point the [154 MICHAPP 404] defendant broke free of Williams and ran. In doing so, the defendant apparently struck Williams with his right arm and pushed him into a ditch. The officers pursued defendant and, once apprehended, they arrested him for resisting a police officer in the lawful performance of his duty, M.C.L. Sec. 750.479; M.S.A. Sec. 28.747. After arresting the defendant, the officers performed a search incident to arrest and discovered marijuana in the defendant's pocket.

The defendant was charged with marijuana possession. He was questioned after the arrest and admitted to having stolen two stereos from an Oscoda Ben Franklin store. This confession gave rise to two additional charges of larceny in a building, including the one to which defendant pled guilty.

Defendant argues that the trial court erred in not suppressing the evidence obtained in the search, the subsequent confession, and evidence garnered as a result of the confession. He argues that there was no legitimate basis for stopping him in the first instance, that even if he were validly stopped the deputies had no right to search his person for weapons, and that had he not been stopped and searched, the deputies would not have discovered the marijuana and would not have gained the benefit of his confession. Thus, he argues that if the stop and frisk were invalid, the evidence and confession would have to be suppressed as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Originally, the trial court held that the deputies made a valid stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), since defendant was in violation of a civil statute. Having found a valid stop, the court held that under the circumstances (isolated area, late at night, defendant's[154 MICHAPP 405] furtive gestures) the deputies' belief that the defendant may have been armed and dangerous, although a close question, was reasonable and justified a pat-down search for weapons. Defense counsel then represented that, although defendant was in violation of the statute, Williams had testified that the reason for the stop was the suspicion of criminal activity. The trial court then held that this suspicion was not sufficient to justify a Terry stop. However, the court held that this incident constituted a valid inquiry short of a stop, stating:

"[A]n investigation can arise and can be conducted short of a stop. The restraints upon a citizen are different. The threshold requirements ... placed upon an officer are different. If an officer wishes to conduct an investigation and make inquiry of passersby, pedestrians on the street, he can do so. He's not engaging in any stop at that point as stop is used as a legal term. He can ask a passerby if they mind answering some questions. If they say, yes, they would, and the passersby are permitted to proceed on, there's no legal stop. In this case, a hitchhiker seeking a ride, a car has a right to stop and discuss giving a ride with a hitchhiker. The officer indicated that the hitchhiker asked for a ride. The officer said they were making up their mind but needed I.D. first. The defendant gave I.D., and while waiting, the circumstance arose that gave rise to the officer's decision to frisk. I would indicate that the frisk was not made incident to a stop in the usual sense of the term.

* * *

"And it may be that the Court of Appeals may say that under those circumstances, it not being a valid stop, a frisk could not take place. If the officer was afraid for his own safety, he should have simply left. That would be the alternative to a frisk in a situation where a stop is not being made. I feel that under the circumstances the non-[154 MICHAPP 406] intrusive frisk where conduct is such during the course of an encounter that an officer doesn't have to mentally catalog the nonstopping encounter as becoming a 'stop' so that he can justify a frisk under these circumstances where it's exigent and otherwise authorized."

We will discuss the stop, and the frisk, in sequence.

I

We agree with the trial court's final conclusion, holding that the deputies' initial approach of the defendant was not a stop within the meaning of Terry, supra. In order to justify a Terry stop, the officers would need "a particularized suspicion, based on an objective observation, that the person stopped has been, or is about to be engaged in criminal wrongdoing.... [T]he 'articulable reasons' or 'founded suspicion' or 'particularized suspicion' that criminal activity is afoot must derive from the police officer's assessment of the 'whole picture'--the totality of the circumstances with which he is confronted." People v. Shabaz, 424 Mich. 42, 59, 378 N.W.2d 451 (1985).

In the present case, the only indicia of criminal activity were (1) the fact that this was near a business district, (2) the fact that defendant was wearing dark clothing, (3) the early hour of the morning, and (4) the fact that the deputies passed through this stretch of road about fifteen minutes prior to their encounter with defendant and had seen no one. These indicia paint a generalized, as opposed to particularized, picture of suspicion. Indeed, the reasons are even more general than the articulated reasons in Shabaz, where the Supreme Court held that a Terry stop was not justified.

Nonetheless, an officer need not have an articulable[154 MICHAPP 407] suspicion to stop an individual as required by Terry if the officer observes a traffic violation. People v....