People v. Muro

• Decision Date: 19 January 1993
• Docket Number: Docket No. 149141
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joseph Henry MURO, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 401

496 N.W.2d 401

197 Mich.App. 745

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joseph Henry MURO, Defendant-Appellee.

Docket No. 149141.

Court of Appeals of Michigan.

Submitted Nov. 9, 1992, at Lansing.

Decided Jan. 19, 1993, at 9:05 a.m.

Released for Publication March 18, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and Mary M. Stiel, Asst. Pros. Atty., for the People.

William E. Ziem, Walled Lake, for defendant.

Before GRIBBS, P.J., and MICHAEL J. KELLY and REILLY, JJ.

MICHAEL J. KELLY, Judge.

Following a preliminary examination, defendant Joseph H. Muro, charged with possession with intent to deliver marijuana, M.C.L. Sec. 333.7401(1), (2)(c); M.S.A. Sec. 14.15(7401)(1), (2)(c), was bound over for trial. Defendant's subsequent motion to suppress the evidence was granted by the trial court. The prosecution appeals as of right. We reverse.

On August 11, 1991, at approximately 5:30 p.m., Officer Hundersmarck, a City of Novi police officer, stopped a Chevrolet pickup truck on Twelve Mile Road near the Twelve Oaks Mall. The officer stopped the truck because its windshield was cracked and the driver's view was obscured. The truck was occupied by the driver, Robert Shannon, and defendant. Both men appeared to be "very nervous and fidgety." Specifically, defendant's voice cracked when he spoke to Officer Hundersmarck and he generally avoided eye contact with the officer, made twitching movements with his head, and rubbed his arms and legs. Shannon behaved in a similar fashion. Officer Hundersmarck returned to his patrol car to check both men's names through the police computer. He continued to watch the men through the rear window of the truck. Defendant made several movements of his head, left shoulder, and left arm toward the center of the truck and the driver. Shannon made similar movements toward the center of the truck and defendant. These movements, coupled with the fact that the men seemed nervous, caused Officer Hundersmarck to suspect criminal activity on their part and to fear for his safety. Subsequently, Officer Hundersmarck received information that the driver had a suspended license and that there was an outstanding warrant for his arrest. The driver was placed under arrest and a patdown search of defendant was conducted to determine if he had any weapons. During the search, defendant reached into his pants and pulled out four bags of marijuana.

The prosecution's sole argument on appeal is that the trial court erred in granting defendant's motion to suppress the evidence. A trial court's decision to grant a motion to suppress evidence will not be reversed unless that decision is clearly erroneous. People v. Burrell, 417 Mich. 439, 448, 339 N.W.2d 403 (1983); People v. Oliver, 192 Mich.App. 201, 204, 481 N.W.2d 3 (1991). We will reverse a trial court's decision in this regard if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. People v. Chambers, 195 Mich.App. 118, 121, 489 N.W.2d 168 (1992).

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is the seminal case that holds that the police do not violate the Constitution in frisking a person where there is less than probable cause to arrest. On the basis of a reasonable suspicion of possible criminal activity and reasonable fear...