People v. LoCicero

• Decision Date: 27 December 1996
• Docket Number: 104545,Docket Nos. 104174,No. 10,10
• Citation: 556 N.W.2d 498,453 Mich. 496
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Todd Stephen LoCICERO and Robert Cook Mueller, Defendants-Appellants. Calendar
• Court: Michigan Supreme Court

Page 498

556 N.W.2d 498

453 Mich. 496

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Todd Stephen LoCICERO and Robert Cook Mueller, Defendants-Appellants.

Docket Nos. 104174, 104545.

Calendar No. 10.

Supreme Court of Michigan.

Argued Oct. 9, 1996.

Decided Dec. 27, 1996.

[453 Mich. 497] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and John S. Pallas, Assistant Prosecuting Attorney, Pontiac, for people.

Bellanca, Beattie & Delisle, P.C. by Frank D. Eaman, Harper Woods, and Thomas R. Everett, Detroit, for defendant.

Michael Thomas, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Detroit, Chief, Research, Training and Appeals, for amicus curiae Prosecuting Attorneys Association of Michigan.

OPINION

LEVIN, Justice.

The question presented is whether the officers had reasonable suspicion under Terry ¹ to stop the defendants. We agree with the district and circuit court judges that they did not, and that the evidence obtained must be suppressed. We reverse the judgment of the Court of Appeals, which found that the stop and seizure were justified.

I

Defendants, Todd Stephen LoCicero and Robert Cook Mueller, were charged with possession with intent to deliver less than fifty grams of cocaine, ² possession with intent to deliver marijuana, ³ and possession of open intoxicants in a vehicle. ⁴

The district court judge dismissed the charges, finding that the officers did not have reasonable suspicion to stop the vehicle in which they were riding, and that the drugs seized should be suppressed as fruit of the poisonous tree. The circuit court affirmed.

This Court remanded to the Court of Appeals for consideration as on leave granted. The Court of Appeals reversed, concluding that the stop was legal, and that the evidence was admissible without regard to the legality of the stop. We reverse.

II

On Friday, November 15, 1991, at approximately 10:40 p.m., undercover police officers, in unmarked vehicles, observed a Trans Am automobile occupied by Mueller and LoCicero driving in the parking lot of a Holiday Inn in Southfield. The Trans Am "looped" the half-full parking lot and drove toward a Ford vehicle in the back lot of the hotel. The two vehicles met for a moment, and then drove off from the parking lot onto Telegraph Road, proceeding southbound in the outside lane of southbound Telegraph Road with the Ford "in the lead."

The vehicles turned into the parking lot of the Tel-Ex Plaza ⁵ on Telegraph Road, just north of Ten Mile Road, less than a mile from the Holiday Inn. The vehicles proceeded toward the northeastern part of the lot to an unlit area by the theater marquee. The drivers of the two vehicles parked in available spaces, separated by three unoccupied parked vehicles, one row west of Telegraph.

The Trans Am passenger, Mueller, got out of the car and entered the passenger side of the Ford. The driver of the Ford remained in the vehicle with the lights turned off and the engine running. The driver of the Trans Am, LoCicero, walked about thirty or forty yards from the Trans Am in a westerly direction and looked around for less than a minute. He then walked back to the Trans Am and continued to look around as he waited at the driver's side.

Mueller and the driver of the Ford conversed for two or three minutes. The officer did not see the two exchange anything. Then the lights on the Ford were turned on, and Mueller was driven to the Trans Am. He entered the passenger side of the Trans Am, and the two vehicles left the lot and proceeded toward Telegraph Road.

As a result of these observations, an officer ordered a marked unit to stop the Trans Am, believing that the conduct of LoCicero and Mueller suggested a possible drug transaction. The Trans Am was stopped five miles away on eastbound I-696 near Greenfield Road by a number of police cars.

An officer observed, on the floor of the Trans Am behind the driver's seat, what he thought to be a large knife, but what actually was a corkscrew with a small knife. LoCicero was instructed to go to an area where other officers were standing. The officer addressed Mueller, seated in the passenger seat, and observed that he had a glass of liquid between his legs. Mueller said it was vodka. Mueller was asked to step out of the vehicle, and both he and LoCicero were arrested.

Baggies containing marijuana were discovered under the passenger seat. Narcotics were not discovered in a pat-down search. After LoCicero and Mueller left the scout car that transported them to the station, a baggie was found containing a substance later determined to be crack cocaine.

III

LoCicero and Mueller contend that the Court of Appeals erred in concluding that the officers were justified in conducting the investigatory stop. The prosecutor counters that the stop was made on the basis of a reasonable suspicion that the defendants were engaged or about to be engaged in criminal activity.

A judge's findings of fact following a suppression hearing will not be disturbed by this Court unless the findings are clearly erroneous. ⁶ The application of the constitutional standard to essentially uncontested facts, as in the instant case, is not, however, entitled to the same deference as factual findings. ⁷

The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. ⁸ The discovery of contraband does not validate an illegal search and seizure. A "search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success." ⁹

The brief detention of a person following an investigatory stop is considered a reasonable seizure if the officer has a "reasonably articulable suspicion" that the person is engaging in criminal activity. ¹⁰ The reasonableness of an officer's suspicion is determined case by case on the basis of the totality of all the facts and circumstances. ¹¹ "[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." ¹²

Although this Court has indicated that fewer facts are needed to establish reasonable suspicion when a person is in a moving vehicle than in a house, ¹³ some minimum threshold of reasonable suspicion must be established to justify an investigatory stop whether a person is in a vehicle or on the street.

In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the United States Supreme Court held that the police did not have reasonable suspicion to stop a man when they had watched interact for over eight hours with known drug addicts.

In People v. Freeman, 413 Mich. 492, 320 N.W.2d 878 (1982), this Court held that the police did not have reasonable suspicion to stop a man at 12:30 a.m. in a vehicle, that was idling with its parking lights on, in a darkened, deserted parking lot near a darkened house.

In People v. Nelson, 443 Mich. 626, 505 N.W.2d 266 (1993), this Court found that the police were justified in stopping the three defendants as they left a known drug house after a brief visit. The three defendants drove up to the house, and remained for only four minutes. The house was a known drug house that had been under surveillance for two weeks. Information from a reliable informant indicated that the house was still being operated as a drug house, and that the supply of drugs had diminished and was about to be replenished. At the time of the stop, other officers were in the process of obtaining a search warrant for the house.

This Court observed that the detective watching the house testified "that on the basis of his twenty-three years experience, the defendants' behavior was characteristic of a 'crack-house' buy: 'a short visit, in/out, back in the car and down the road.' It was described as a 'carbon copy' of what had occurred two weeks earlier." ¹⁴ The Court concluded that this knowledge, coupled with the other information the police had regarding the house, formed the basis for reasonable suspicion justifying further inquiry.

In People v. Champion, 452 Mich. 92, 99, 549 N.W.2d 849 (1996), we adopted the Court of Appeals "ruling that an investigative stop and pat down search for weapons was reasonable under the totality of the circumstances."

Particularized suspicion arose as a result of the following factors: (1) the area was a known drug crime area, (2) a man, seeing a marked police car, ran from sight around a corner, (3) as officers turned the corner, two men got out of a car parked midblock, (4) the passenger and the man at the corner ran away, (5) the driver made some movement away from the car, (6) he was known by the police to have previous drug and weapons convictions, (7) he held his hands inside the front of his sweatpants, and (8) he refused several police orders to remove his hands from his sweatpants. [Id. at 99-100, 549 N.W.2d 849.]

In People v. Yeoman, 218 Mich.App. 406, 554 N.W.2d 577 (1996), an officer observed a man using the change machine at a carwash after midnight. When the officer drove into the parking lot, the man entered a vehicle driven by defendant Yeoman and left abruptly, leaving several dollars' worth of quarters in the change tray of the money changer. The defendants' car returned a few moments later, as if to check if the officer had left. The officer stopped the vehicle for further investigation, and then learned from another officer that the car wash owner had complained of theft from the changers. ¹⁵

The Court of Appeals found that the totality of the circumstances, including the time of night, the appearance that the money changer had not been used for the purchase of car wash services, the hurried retreat from the area when...