People v. Pagano

• Decision Date: 22 April 2021
• Docket Number: No. 159981,Calendar No. 4,159981
• Citation: 507 Mich. 26,967 N.W.2d 590
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Victoria Catherine PAGANO, Defendant-Appellant.
• Court: Michigan Supreme Court

507 Mich. 26

967 N.W.2d 590

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Victoria Catherine PAGANO, Defendant-Appellant.

No. 159981

Calendar No. 4

Supreme Court of Michigan.

Argued November 10, 2020

Decided April 22, 2021

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Timothy J. Rutkowski, Prosecuting Attorney, and David Wallace, Assistant Prosecuting Attorney, for the people.

Law Office of Michael Horowitz (by Michael Horowitz ) for defendant.

BEFORE THE ENTIRE BENCH (except Welch, J.)

OPINION

Bernstein, J.

This case presents a question concerning the Fourth Amendment and investigatory stops pursuant to Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). After an anonymous caller alleged that defendant was driving while intoxicated, a police officer located and stopped defendant's vehicle. We hold that, under the totality of the circumstances, the stop did not comply with the Fourth Amendment because the police officer did not have a reasonable and articulable suspicion that defendant was engaged in criminal activity. Accordingly, we reverse the judgment of the Court of Appeals and remand to the circuit court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

On July 31, 2016, a Huron County police officer was informed by central dispatch of a 911 call that had been made. Although it appears that a copy of the 911 call might have been preserved, a recording was not introduced into evidence. The caller was not identified. The officer would later testify as follows:

Um the information that our dispatch had given us is that she was out of the vehicle at that location at the time. The caller was concerned because she had ah children with her and she was yelling; appearing to be obnoxious; and appeared to be intoxicated um that was causing her behavior ah with the children. And then had left is why the caller thought she was intoxicated.

The caller also relayed the vehicle's license plate number and the direction in which it was traveling, as well as the vehicle's make, model, and color.

Within 30 minutes of the 911 call, the officer observed defendant's vehicle, which matched the caller's description. The officer followed the vehicle for a short time to corroborate the identifying information. During this period, the officer did not see defendant commit any traffic violations. When the officer subsequently pulled defendant over, the officer was doing so "based strictly on the information" relayed in the 911 call. Defendant was then arrested for and subsequently charged with operating a motor vehicle while intoxicated with a child as a passenger, MCL 257.625(7)(a)(i ), and open container in a vehicle, MCL 257.624a.

Defendant moved for dismissal of the charges, arguing that the investigatory stop was unlawful and that, as a result, any evidence obtained pursuant to the stop should be suppressed. On March 21, 2017, a hearing was held in district court on defendant's motion. Although the officer was called as a witness, no other evidence was entered into the record. The district court granted defendant's motion, holding that there was no probable cause to stop defendant's vehicle because the 911 call was not reliable. Accordingly, the district court dismissed the case without prejudice. The prosecution moved for reconsideration, which was denied; the order denying the motion for reconsideration again referred to probable cause as the applicable standard for evaluating the lawfulness of the stop.

The prosecution appealed, and on September 27, 2017, a hearing was held in circuit court. The circuit court noted that defendant's motion to dismiss was better understood as a motion to suppress evidence and recognized that the applicable legal standard was not probable cause. Nevertheless, the circuit court affirmed the district court's ruling.

The prosecution sought leave to appeal in the Court of Appeals, and the Court of Appeals granted the application. On May 28, 2019, the Court of Appeals reversed and remanded for the reinstatement of charges. People v. Pagano , unpublished per curiam opinion of the Court of Appeals, issued May 28, 2019 (Docket No. 340859). Specifically, the Court of Appeals concluded that the officer had reasonable and articulable suspicion of criminal activity sufficient to justify an investigative stop of defendant's vehicle.

Defendant timely sought leave to appeal in this Court. On December 23, 2019, this Court granted leave to appeal. People v. Pagano , 505 Mich. 938, 936 N.W.2d 308 (2019).

II. STANDARD OF REVIEW

We review a lower court's factual findings in a suppression hearing for clear error. People v. Jenkins , 472 Mich. 26, 31; 691 N.W.2d 759 (2005). However, because the application of constitutional standards presents a question of law, a lower court's ultimate ruling at a suppression hearing is reviewed de novo. People v. Custer , 465 Mich. 319, 326; 630 N.W.2d 870 (2001).

III. ANALYSIS

Both the United States Constitution and the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures. U.S. Const., Am. IV ; Const. 1963, art. 1, § 11. Even a brief traffic stop constitutes a seizure of a vehicle's occupants.

Brendlin v. California , 551 U.S. 249, 255, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007). However, "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry , 392 U.S. at 22, 88 S.Ct. 1868. "A brief, on-the-scene detention of an individual is not a violation of the Fourth Amendment as long as the officer can articulate a reasonable suspicion for the detention." Custer , 465 Mich. at 327, 630 N.W.2d 870. Colloquially, a brief detention of this sort is referred to as a Terry stop. Whether an officer has reasonable and articulable suspicion to briefly detain an individual is a fact-specific inquiry that is determined on a case-by-case basis. Jenkins , 472 Mich. at 32, 691 N.W.2d 759. "A determination regarding whether a reasonable suspicion exists must be based on commonsense judgments and inferences about human behavior." Id. (quotation marks and citation omitted). Although reasonable and articulable suspicion is a lesser showing than probable cause, it still "entails something more than an inchoate or unparticularized suspicion or ‘hunch,’ " because an officer "must have had a particularized and objective basis for the suspicion of criminal activity." People v. Champion , 452 Mich. 92, 98-99; 549 N.W.2d 849 (1996).

The facts before us are undisputed. No information is known about the 911 caller, and the prosecution concedes that the caller should be treated as anonymous. The officer testified that defendant was detained solely on the basis of the information presented in that anonymous 911 call. Because the 911 call was not made part of the record, we only have the officer's summary of the information relayed to him by central dispatch.

The question before us, then, is whether this information presented the officer with the reasonable and articulable suspicion necessary to justify a Terry stop. An anonymous tip, when sufficiently corroborated, can exhibit sufficient indicia of reliability to justify a Terry stop. Florida v. J. L. , 529 U.S. 266, 270, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). The Court of Appeals analysis here focused almost exclusively on the reliability of the anonymous tip, concluding that "the informant's tip provided accurate details that were corroborated by the officer, making it sufficiently reliable, and also conveyed information related to contemporaneous and ongoing potential criminal activity." Pagano , unpub. op. at 4. However, the Court of Appeals failed to explain how the reliability of the anonymous tip alone rendered "the quantity of the tip information ... sufficient to identify the vehicle and to support an inference of a traffic violation ...." Id. at 3 (emphasis added).

Under the circumstances presented here, we hold that the anonymous tip did not give rise to a reasonable and articulable suspicion that defendant was engaged in a traffic violation, much less criminal activity. It is true that the officer was able to corroborate information regarding the identification of the vehicle. However, that a tipster has reliably identified a particular individual does not necessarily mean that information contained in a tip gives rise to anything more than an inchoate or unparticularized suspicion of criminal activity. See J. L. , 529 U.S. at 272, 120 S.Ct. 1375 ("The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person."). Assuming that the tipster here was reliable leads only to the conclusion that defendant "appear[ed] to be obnoxious" and was yelling at her children in a parking lot, as there are no other details in the record that would otherwise corroborate the tipster's mere assertion that defendant was drunk. Certainly, commonsense judgments and inferences about human behavior lead one to conclude that many parents yell at their children, even without the aid of intoxicants.

The Supreme Court of the United States has held that certain driving behaviors are so strongly correlated with drunk driving that, when reported to the police by anonymous callers, the totality of the circumstances may give rise to a reasonable and articulable suspicion of criminal activity. Navarette v. California , 572 U.S. 393, 402, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014) (noting that such behaviors include "weaving all over the roadway," "crossing over the center line" and "almost causing several head-on collisions," "driving all over the road and weaving back and forth," and "driving in the median") (quotation marks, citations, and brackets omitted). But the Navarette Court cautioned that not...