People v. Mamon

• Decision Date: 31 January 1989
• Docket Number: Docket No. 102233
• Citation: 435 N.W.2d 12,173 Mich.App. 429
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mark MAMON, Defendant-Appellee. 173 Mich.App. 429, 435 N.W.2d 12
• Court: Court of Appeal of Michigan — District of US

Page 12

435 N.W.2d 12

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mark MAMON, Defendant-Appellee.

Docket No. 102233.

173 Mich.App. 429, 435 N.W.2d 12

Court of Appeals of Michigan.

Submitted Oct. 19, 1988.

Decided Dec. 5, 1988.

Released for Publication Jan. 31, 1989.

[173 MICHAPP 431] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the people.

Before SULLIVAN, P.J., and MURPHY and WARSHAWSKY, ^* JJ.

MURPHY, Judge.

The prosecution appeals as of right from the lower court's order granting defendant's motion to quash the information charging him with possession of a controlled substance, M.C.L. Sec. 333.7403(2)(a)(iv); M.S.A. Sec. 14.15(7403)(2)(a)(iv).

The only witness at the preliminary examination was Detroit Police Officer Kelvin Patrick. He testified that on September 19, 1986, at approximately 7:50 p.m., while he and his partner were in uniform, driving a marked scout car and on routine patrol, the following occurred which attracted his attention:

"A. Driving southbound Log Cabin, I observed the defendant, Mark Mamon, standing on the corner of Log Cabin and Grove, which is known to have narcotics activity.

* * *

"As we were driving down the street, we observed Mr. Mamon observe the scout car and tryed [sic] to flee to the above location which is 16744 Log Cabin. We detained Mr. Mamon. But before detaining him, we observed him going through his [173 MICHAPP 432] right pocket, drop a burgundy case. At this time, we detained Mr. Mamon, went back and retrieved the case, opened the case that had suspected--six rocks of suspected cocaine rocks in it."

On cross-examination the officer elaborated as follows:

"Q. [Defense Counsel ] Oh, Log Cabin? Okay. And you said that you looked over, and the defendant was standing at the corner?

"A. Yes, ma'am.

"Q. And he took off running?

"A. Yes, ma'am.

"Q. Did you then pursue him in your car, or what happened?

"A. Pursued him on foot.

"Q. You jumped out of your car and started chasing after him?

"A. Yes, ma'am.

"Q. And at that point, he had taken the red case out of his pocket?

"A. Yes, ma'am.

"Q. Okay.

"A. Correction, ma'am. It was before we caught him that he took the case out of his pocket.

"Q. Okay. It was before?

"A. It was during the chase.

"Q. So he took off running; you jumped out of your car, you started running after him; he took the red case out of his pocket and threw it to the ground; is that right?

"A. Yes, ma'am."

The officer also agreed that defendant was standing next to a public phone and that at no time did the officers draw their guns at defendant.

This testimony is the full substance of the evidence introduced against defendant. The officer's testimony on both direct and cross-examination [173 MICHAPP 433] took six of the twelve pages of the transcript. Based on the above testimony, defendant was bound over to circuit court on the controlled substance information. However, that court noted that any possible violations of defendant's Fourth Amendment rights could be addressed at a later hearing.

Defendant then filed a motion to quash the information or, in the alternative, to suppress and for an evidentiary hearing. At the ensuing motion hearing, defense counsel waived the production of any additional testimony and relied solely on the testimony at the preliminary examination. After brief arguments by counsel, the circuit judge, without any elaboration, simply stated that she was "convinced that Shabazz [sic] [People v. Shabaz, 424 Mich. 42, 378 N.W.2d 451 (1985) ] is controlling and, accordingly, your motion is granted."

The people now appeal arguing that the police properly detained defendant based on the authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We disagree.

Initially, we note that an appellate court will not disturb a trial court's ruling at a suppression hearing unless that ruling is found to be clearly erroneous. People v. Burrell, 417 Mich. 439, 448, 339 N.W.2d 403 (1983).

Our Supreme Court in Shabaz, supra, discussed at some length the Terry case, noting that the constitutional inquiry under Terry is whether the seizure and subsequent search of an individual is reasonable. Shabaz, supra, 424 Mich. at p. 53, 378 N.W.2d 451. The Court in Shabaz explained:

"The Court, in Terry, specifically declined to deal with the question of an 'investigative seizure upon less than probable cause for purposes of "detention" and/or interrogation,' 392 US 19, n 16, [173 MICHAPP 434] but, in subsequent cases, the Court has developed standards applicable to investigatory stops by police."

* * *

"While factually there can be many justifications for a so-called 'Terry stop,' see footnote 6, the criteria for a constitutionally valid limited intrusion upon a citizen's liberty, short of probable cause for arrest, are that the police must have a particularized suspicion, based on an objective observation, that the person stopped has been, is, or is about to be engaged in criminal wrongdoing. Brown v. Texas [443 U.S. 47, 51, 99 S.Ct. 2637, 2640-41, 61 L.Ed.2d 357 (1979) ]. As the Supreme Court stated in United States v. Cortez [449 U.S. 411, 417-418, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981) ], the '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 circumstances with which he is confronted." Shabaz, supra, 424 Mich. at pp. 54, 59, 378 N.W.2d 451.

The "whole picture" with which the officers were confronted in this case was comprised of these individualized facts:

1. Defendant was observed next to a public telephone at an early evening hour on a street corner that was known to have narcotics activity.

2. Defendant observed the marked scout car and he tried to flee that location.

While the above facts may lead to a generalized suspicion that defendant was engaged in wrongdoing, we cannot conclude that these facts provided the officers with the requisite "particularized suspicion" based on objective manifestations that defendant was involved in criminal wrongdoing. We reach this conclusion after a careful analysis of Shabaz, supra, which was relied upon by the circuit court in dismissing the information against [173 MICHAPP 435] defendant, and recent United States Supreme Court precedent. See Michigan v. Chesternut, 486 U.S. ----, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).

The first facts to be analyzed are that defendant was observed next to a public telephone on a street corner known to have narcotics activity. As was stated in Shabaz, the defendant's presence in a high-crime neighborhood does nothing to distinguish him from any number of other pedestrians in the area and that fact alone would not establish the grounds for an investigatory stop. Shabaz, supra, 424 Mich. at p. 60, 378 N.W.2d 451. Indeed, the defendant in Shabaz was observed on the street at night in a high-crime neighborhood. He was also seen leaving an apartment building wherein the observing officers had previously made a number of arrests (fifteen, in fact, see id., at p. 75, 378 N.W.2d 451), for concealed-weapons violations and narcotics offenses. Moreover, the defendant was observed stuffing a small paper bag under his vest or in his pants.

In contrast, in this case, the officers' observations of defendant reveal much less suspicious circumstances. Defendant was standing next to a public telephone on a corner known for narcotics activity. There was no evidence that the observing officers were responding to a particular complaint of criminal wrongdoing on that corner, or even in that area, or that the officers had made any arrests in the past for illegal activity on that street corner. Moreover, defendant made no furtive gestures as did the defendant in Shabaz. Therefore, it appears to us that the defendant in Shabaz was in a more suspect location and exhibited more suspicious behavior when compared to defendant's location and behavior in this case. Despite the suspicious nature of these facts in Shabaz, before going on to analyze the other facts with which the officers were confronted, the Court concluded:

[173 MICHAPP 436] "Considering the totality of the circumstances with which the police were confronted before the defendant began to run, it is clear that the officers were entirely without authority to confront the defendant and require him to submit to an investigatory stop and interrogation because, on the basis of what they had observed, the officers had no articulable or particularized grounds to suspect, reasonably, that the defendant was, had been, or was about to be engaged in criminal activity. Nothing in their observation of him to that point provided the objectively reasonable and articulable suspicion that would justify the limited intrusion upon the defendant's liberty and privacy interests permitted under Terry.

"What then was added to the picture when the defendant began to run that converted the naked and generalized suspicion of the police officers into articulable grounds to conclude that criminal activity was afoot?" Shabaz, supra, at p. 62, 378 N.W.2d 451.

We believe that the above reasoning and conclusion reached by the Supreme Court applies with even more force in this case.

We next analyze the fact of defendant's flight at the sight of the marked scout car. Here, we recognize that there is perhaps a key factual distinction between Shabaz and the instant case. In Shabaz, the defendant fled at the sight of an unmarked scout car with several plainclothes police. In this case, the two officers were in uniform driving a marked scout car. However, irrespective of this distinction, the Court in Shabaz analyzed the fact of flight by emphasizing that flight alone is not a reliable indicator...