People v. Lillis

• Decision Date: 28 August 1975
• Docket Number: Docket No. 22431
• Citation: 235 N.W.2d 65,64 Mich.App. 64
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Joseph LILLIS, Defendant-Appellant. 64 Mich.App. 64, 235 N.W.2d 65
• Court: Court of Appeal of Michigan — District of US

Page 65

235 N.W.2d 65

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Joseph LILLIS, Defendant-Appellant.

Docket No. 22431.

64 Mich.App. 64, 235 N.W.2d 65

Court of Appeals of Michigan.

Aug. 28, 1975.

Released for Publication Nov. 17, 1975.

[64 MICHAPP 65] William E. Jackson, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Asst. Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

KAUFMAN, Judge.

On October 17, 1974, after a bench trial in Kent County circuit court, defendant was found guilty of carrying a concealed weapon in a motor vehicle, M.C.L.A. § 750.227; M.S.A. § 28.424. He was subsequently sentenced to a term of from 3 to 5 years and now appeals of right.

The sole issue to be decided on appeal is whether the trial court committed error by denying defense motions to suppress the gun which the police took from defendant and which served as [64 MICHAPP 66] the basis for his conviction. The gun was discovered when police frisked defendant after they had stopped the car in which he was riding. Defendant contends that the evidence should have been suppressed because the police had insufficient cause to stop the car and to frisk defendant. Evidence at a pre-trial suppression hearing and at trial, prior to defendant's motion at the close of testimony, indicated that the Grand Rapids police, in stopping the car, were acting on a belief that an escaped prisoner was in the car.

The events precipitating defendant's arrest began when the Bay County Sheriff's office informed the Kent County Sheriff's office that an individual named Freddie Tompkins had escaped from Jackson Prison and might be in Grand Rapids where he was the leader of a motorcycle club, the Outlaws. The Bay County officials had received this information from an unnamed 'reliable informant'. A picture, physical description and rap sheet of Tompkins was sent to the Kent County Sheriff's office which, in turn, forwarded the information to the Grand Rapids police.

According to the information supplied to the Grand Rapids police, Tompkins was described as being 5 feet 7 inches, weighing 150 pounds and as having a small build, fair complexion, brown hair, blue eyes and tattoos on both arms. The Bay County officials indicated that Tompkins might have a beard or moustache.

This description was distributed to Grand Rapids police officers on July 15, 1974. At this time, the Grand Rapids police verified the fact that Tompkins had, in fact, escaped from Jackson. Two days later, Officer Kropewnicki, while on patrol, spotted a man whom he thought was Tompkins. The suspect was riding in the back seat of a car for which [64 MICHAPP 67] Officer Kropewnicki had been looking. The officer testified that he was looking for this car because, a month earlier, it had been used by the Outlaw Motorcycle Club in a matter which he had investigated. Officer Kropewnicki based his suspicion that the rear-seat passenger was Tompkins on the prior use of the car by the Outlaws and on the fact that the suspect had 'medium length brownish hair', a moustache, and a thin build. The officer had seen a picture of the escapee two days earlier.

Officer Kropewnicki, however, felt that his view of the man in the rear seat was not good enough to justify his stopping the car and arresting the suspect. Because of this, he requested help from Officers Price and Crace who had also seen Tompkins' picture and might verify his suspicion. Price and Crace, who were on plain-clothes duty, followed the suspect car to a party store and watched its three occupants enter and leave the store. They were some 150 yards away at this point. Officer Price testified that he could not make a determination from that distance and that he relied on Officer Crace, who was looking at the three men through binoculars. Officer Crace denied that he was using binoculars and testified that he could not distinctly make out any facial features, height, weight, or age. Crace, in determining that the suspect might be Tompkins, relied on the suspect's hair length and moustache, viewed in light of the connection of the car with the Outlaws and of Officer Kropewnicki's suspicion.

When the car left the party store, a marked police car joined the others and on orders from Kropewnicki pulled it over. Officer Price testified that, at this point, three officers approached the car with drawn guns. Each ordered a different occupant out of the car. Officer Price asked defendant,[64 MICHAPP 68] the passenger in the front seat, to step out of the car. At this point, Officer Price claimed he saw a bulge in defendant's waistband and, believing that defendant might have a gun, frisked that part of his body. The officer stated that he carried his gun in the same place when on plainclothes duty. Upon discovering a gun, Price conducted a full pat down of defendant, then placed him under arrest. The other officers had discovered that the suspect in the rear seat was not Tompkins and released him and the driver.

Our initial determination is whether the police had sufficient cause to stop the car in which defendant was a passenger. In People v. Whalen, 390 Mich. 672, 682, 213 N.W.2d 116, 121 (1973), the Supreme Court established rules 'with respect to the stopping, searching and seizing of motor vehicles and their contents:

'1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.

'2. Said reasonableness will be determined from the facts and circumstances of each case.

'3. Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.

'4. A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police.' (Emphasis supplied.)

The Supreme Court did not detail the parameters of 'reasonableness' of investigatory stops. By the very nature of the rules, they must be interpreted on a case-by-case basis. In People v. Whalen, supra, the Court found reasonable a stop made [64 MICHAPP 69] pursuant to a tip from an eyewitness to a robbery which had occurred shortly before the stop. The witness gave police a description of the robbers and of their car. The police stopped the car in which defendant was riding when it and its passengers fit the description.

In People v. Parisi, 393 Mich. 31, 222 N.W.2d 757 (1974), the Court found the stop to have been unreasonable. There, a policeman stopped defendant's car because it was going 25 mph in a 45 mph zone, because he felt the occupants were violating a local curfew, and because of a concern that the occupants were 'sleeping or ill'. Id. at 35, 222 N.W.2d 757. The Court noted that no minimum speed laws had been broken and that the curfew did not apply to occupants of autos. As such, there was not 'suspicious activity' enough to justify the stop. Id. at 37, 222 N.W.2d 757. Further:

'The factual foundations for the decisions in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), are not present here.'

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), which applied the Terry standards to determining the validity of a stop as well as of a frisk, provide some guidance. In Terry, the Court held that the actions of police officers would be measured by an 'objective standard:

'would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?' (Citations omitted.) 392 U.S. 1 at 21--22, 88 S.Ct. at 1880.

[64 MICHAPP 70] See also Adams v. Williams, supra, 407 U.S. at 145--146, 92 S.Ct. 1921. In...