People v. Nelson

• Decision Date: 08 September 1993
• Docket Number: No. 10,Docket No. 94714,10
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Tommie Lee NELSON and Mark Steven Jones, Defendants-Appellees. Calendar
• Court: Michigan Supreme Court

Page 266

505 N.W.2d 266

443 Mich. 626

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Tommie Lee NELSON and Mark Steven Jones, Defendants-Appellees.

Docket No. 94714.

Calendar No. 10.

Supreme Court of Michigan.

Argued May 5, 1993.

Decided Sept. 8, 1993.

Margo C. Runkle, Chief Appellate Atty., Jackson County Prosecutor's Office, Jackson, for the state.

Brian E. Thiede, Spring Arbor, for defendant Jones.

Cleophas Culp, Jr., Leslie, for appellees.

Patrick Shannon, President, Pros. Attys. Ass'n of Michigan, John D. O'Hair, Pros. Atty., County of Wayne, Timothy A. Baughman, Chief of Research, Training and Appeals, reply brief of the Pros. Attys. Ass'n of Michigan as amicus curiae in support of appellant, The People of Michigan.

Bruce A. Barton, Jackson, for amicus curiae.

BRICKLEY, Justice.

We granted leave to appeal to determine whether there was reasonable suspicion within the purview of the Fourth Amendment to perform an investigatory stop on a vehicle containing three males who, for approximately four minutes, visited a house that two weeks earlier had been raided for selling cocaine, continued to operate as a drug house as reported by a reliable informant, and that thirty minutes earlier was the site of a controlled buy, 496 N.W.2d 293. The Court of Appeals affirmed the decision of the circuit court that the stop violated the defendant's constitutional rights. The people appeal, and we now reverse.

I

On the evening of March 16, 1989, the Jackson police were told by a confidential, reliable informant that drugs were being sold at 515 Oak Street. ¹ Just two weeks earlier, after keeping the house under surveillance long enough to witness a number of in-and-out quick stops typical of drug transactions, all of which resulted in arrests for cocaine possession, a search warrant was issued for the house and resulted in cocaine and drug paraphernalia being found on the premises. One of the occupants of the house, Ms. Ivy Torry, told the officer performing the search, who was also in charge of the present case, that she indeed had been selling cocaine from the house.

On the basis of that information the police arranged for the informant to make a controlled purchase with marked bills. The police searched the informant and the informant's car, and gave the informant $60. The informant was unable to personally enter the house, but arranged for someone else to actually purchase the cocaine. ² At 9:00 p.m., surveillance officers followed the informant and the buyer to 515 Oak Street, where the buyer entered the house for approximately three minutes, and, upon returning to the car, gave the informant a packet of cocaine and $10 in change. ³ The informant was wearing a wireless microphone through which the police heard the buyer state that "Miss Torry had run out of drugs, and she sent Mr. Conner over to the south side to find Mr. Nelson." ⁴ The buyer stated that he paid $50 for what was received.

The officer in charge proceeded to obtain a search warrant, while other officers maintained surveillance of the house. After approximately thirty minutes, the defendants were observed in an older model Camero driving up to the house. All three entered the house and remained there for only four minutes. One of the detectives 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.

A few moments after the defendants left the house, they were stopped by the police to investigate the possible drug transaction. There was conflicting testimony by the law enforcement officers at the scene regarding the exact order of the events that transpired. ⁵ The detective stated that for the officers' protection and to prevent any evidence from being destroyed, the front seat passengers were directed to place their hands on the dashboard and the person in the back was directed to place his hands on the head rest of the seat in front of him. He stated further that he approached the driver and, while he was asking the driver for his license and information about the vehicle, he observed an open bottle of beer on the floor between the driver's legs. At that point, the detective testified, the defendants were ordered out of the car and subjected to a full search for weapons and contraband.

The officer at the scene testified that he approached the passenger's side of the Camero as the detective approached the driver's side. The right front passenger was asked to step from the vehicle and was searched for weapons and contraband. The rear seat passenger, defendant Jones, was then asked to get out of the car and was patted down, revealing an open bottle of gin in his belt. The circuit court found that "[t]he occupants were ordered out of the car based upon the officers' belief that people involved in drug trafficking quite frequently did have weapons, and thereafter, open intoxicants were found, arrests were made, and a search of the vehicle and of the persons revealed crack cocaine." Later, upon booking, more cocaine was discovered in the socks of defendant Jones.

The defendants were charged with possession of less than twenty-five grams of cocaine. M.C.L. § 333.7403(2)(a)(v); M.S.A. § 14.15(7403)(2)(a)(v). ⁶ At an evidentiary hearing the circuit court held that the evidence must be suppressed and dismissed the case because the stop and search violated the constitution. The Court of Appeals affirmed, being "of the opinion that the police did not possess sufficient reasonable, particularized and articulable suspicion that these particular defendants were engaged in criminal activity."

We take the contrary view. ⁷

II

The conduct of the police in this case implicates the Search and Seizure Clause of the Fourth Amendment of the United States Constitution. ⁸ The type of intrusion authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), has been extended to permit investigative stops under various circumstances for what has been called " 'special law enforcement needs.' " See People v. Shabaz, 424 Mich. 42, 58, n. 6, 378 N.W.2d 451 (1985). In order for law enforcement officers to make a constitutionally proper investigative stop, they must satisfy the two-part test set forth in United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). The totality of the circumstances as understood and interpreted by law enforcement officers, not legal scholars, must yield a particular suspicion that the individual being investigated has been, is, or is about to be engaged in criminal activity. Id. at 418, 101 S.Ct. at 695. That suspicion must be reasonable and articulable, Terry 392 U.S. at 21, 88 S.Ct. at 1879, and the authority and limitations associated with investigative stops apply to vehicles as well as people. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985). ⁹

III

The Court of Appeals in this case suggests that the defendants could have been at the house for any number of reasons, and that "presence, alone, is not sufficient to give rise to a particularized suspicion of criminal activity." However, the absence of apparent innocent behavior has never been a requirement for the suspicion required to make an investigatory stop. United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 1586, 104 L.Ed.2d 1 (1989). The question is not whether the conduct is innocent or guilty. Very often what appears to be innocence is in fact guilt, and what is indeed entirely innocent may in some circumstances provide the basis for the suspicion required to make an investigatory stop. Thus, the focus is on the " 'degree of suspicion that attaches to particular types of noncriminal acts.' " Id. at 10, 109 S.Ct. at 1587.

Similarly, defendant Jones argues:

"If police had information that this residence at 515 Oak fit the description of the classic Detroit crack house then the police may have properly formed a reasonable suspicion that persons who stopped briefly at the premises were involved in drug activity, since it would have been unlikely that they would have been involved in any other activity.

"In this case, since the police were dealing with a home where all the activities of life were conducted and the occasional sale of controlled substances was only a part of the total activities, police could not have formed a reasonable suspicion that Defendant's presence was for the purpose of purchasing drugs." ¹⁰

As stated above, the question is not one of a "classic" crack house, likelihood or unlikelihood, or an "occasional sale." The question is the suspicion generated by a four-minute stop at 9:30 p.m. by a Camaro containing three males at a house, not only suspected of, and under surveillance for, drug dealing, but which had a history of a prior successfully executed search warrant, a witnessed-controlled drug purchase, and reliable information that it continued to operate as a drug house. ¹¹

Defendants also argue that because the law enforcement officers overheard the buyer tell the informant that Ms. Torry had run out of drugs, they should have been on notice that there was no cocaine left in the house and thus could not possibly have formed the reasonable suspicion required to make an investigatory stop. This argument is invalid for a number of reasons, particularly because the various implications arising from the statement are all equally compelling. First, it confirmed that the house was operating as a drug house. Second, notwithstanding the dubious credibility of a drug dealer, we are not convinced that in the world of drug trafficking what this dealer told the buyer necessarily means that the house was completely without drugs. It may be that what was sold was all that Ms. Torry was willing to part with at the time.

Third, this...