People v. Shankle

• Decision Date: 06 February 1998
• Docket Number: Docket No. 199376
• Citation: 227 Mich.App. 690,577 N.W.2d 471
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Wayne Andrew SHANKLE, Jr., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 471

577 N.W.2d 471

227 Mich.App. 690

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Wayne Andrew SHANKLE, Jr., Defendant-Appellee.

Docket No. 199376.

Court of Appeals of Michigan.

Submitted Jan. 6, 1998, at Lansing.

Decided Feb. 6, 1998, at 9:05 a.m.

Released for Publication April 30, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey L. Sauter, Prosecuting Attorney, and William M. Worden, Senior Assistant Prosecuting Attorney, for People.

Melissa G. Leckie, Lansing, for Defendant-Appellee.

Before FITZGERALD, P.J., and O'CONNELL and WHITBECK, JJ.

WHITBECK, Judge.

The prosecutor appeals, by leave granted, a circuit court order affirming a district court order granting defendant's motion to suppress evidence and dismiss the case. We reverse.

Defendant Wayne A. Shankle, Jr., was charged with one count of carrying a concealed weapon under M.C.L. § 750.227(2); M.S.A. § 28.424(2). The evidence at the preliminary examination showed that at 1:40 a.m. on June 18, 1996, Eaton Rapids Police Officer Ken Millikin was on routine patrol when he saw a car with an Arkansas license plate parked in a private driveway near its edge with the street. ¹ The engine of the car was running and its parking lights were on. Officer Millikin, who found the situation to be suspicious, approached the car and saw defendant lying down in the reclined driver's seat with a pillow on his face. Officer Millikin provided the following description of his encounter with defendant:

I tapped on the window to make sure the subject was okay. He woke up and rolled the window down and asked me if he knew me. I identified myself at that time as a police officer and I asked him if he lived at the residence. He stated that he did not. I asked him for some identification. At that time he sat the seat up and he opened the door, and he began to exit the vehicle. And while he was doing so, I could see the grips of a handgun in a--like nylon holster that was stuffed between the seat--the passenger seat and the center console of the vehicle.

Officer Millikin then placed defendant under arrest.

At the close of the proofs, defendant moved to dismiss, arguing that pursuant to People v. Freeman, 413 Mich. 492, 320 N.W.2d 878 (1982), Officer Millikin's request for identification amounted to a Terry ² stop and, because the stop was not supported by reasonable suspicion that criminal activity was afoot, it was unconstitutional. The district court agreed. The prosecutor appealed to the circuit court, which determined that the district court had not erred in its interpretation and application of Freeman.

A "seizure" occurs within the meaning of the Fourth Amendment if, in view of all the circumstances surrounding an encounter with the police, a reasonable person would have believed that the person was not free to leave. People v. Armendarez, 188 Mich.App. 61, 69, 468 N.W.2d 893 (1991). An investigatory Terry stop constitutes a seizure and requires specific and articulable facts sufficient to give rise to a reasonable suspicion that the person detained has committed or is committing a crime. When, however, an officer approaches a person and seeks voluntary cooperation through noncoercive questioning, there has been no restraint on the person's liberty and the person is not seized. People v. Bloxson, 205 Mich.App. 236, 241 (Holbrook, Jr., P.J.), 249 (Fitzgerald, J., concurring in Judge Holbrook's opinion), 517 N.W.2d 563 (1994).

We note that defendant has questioned the propriety of Officer Millikin's entering private property, the driveway in which defendant's car was sitting, to approach defendant. However, it is undisputed that the property in question belonged to defendant's brother, not to defendant. Thus, we conclude that defendant would not have standing to challenge any violation of the protection against unreasonable searches and seizures in connection with Officer Millikin's entering the driveway. Clearly, defendant did not personally have a reasonable expectation of privacy in that property. People v. Lombardo, 216 Mich.App. 500, 505, 549 N.W.2d 596 (1996). We further conclude, in any event, that Officer Millikin's entry into the driveway did not constitute a "search" for constitutional purposes because it did not interfere with anyone's legitimate expectation of privacy. See id. at 504, 549 N.W.2d 596. Merely entering the private property of another is not an offense unless one has been forbidden to do so or refuses to depart after having been told to do so by a proper person. See M.C.L. § 750.552; M.S.A. § 28.820(1); Freeman, supra at 496-497, 320 N.W.2d 878. More importantly, it is commonplace for solicitors, drivers of motor vehicles wanting to reverse direction, and other individuals to enter the unsecured driveways of private homes. Accordingly, defendant had no reasonable expectation of privacy against a police officer merely entering the driveway to ask him questions. Lombardo, supra at 504, 549 N.W.2d 596.

In Freeman, supra at 493-494, 320 N.W.2d 878, the defendant was sitting in his car in a private parking lot near a darkened house. The engine was running, the parking lights were on, and it was late at night. Two officers approached the defendant and "asked" him to get out of his car and to produce identification and registration. The Supreme Court ruled that the defendant had been seized "when the officers asked him to leave his automobile and to produce identification," noting specifically that one of the officers testified that the defendant was not free to go "until I found out who he was and why he was parked there." Id. at 494-495 & n. 3, 320 N.W.2d 878 (emphasis supplied). Because the circumstances did not provide a sufficient basis for a reasonable suspicion of criminal activity to support an investigatory stop, the stop was unwarranted. Id. at 496-497, 320 N.W.2d 878.

We believe that the difficulty in this case relates to the sometimes ambiguous use of the term "asked." While this term is often used to signify a request for voluntary action, it is many times used to refer to a polite instruction to perform a mandatory action. In Freeman, there was apparently no argument about whether the defendant complied with a voluntary request or was effectively ordered or required by the police to get out of his car and produce identification. Rather, the prosecution in Freeman argued that there was sufficient basis to support the officers' suspicion in that case that criminal activity might be afoot. Freeman, supra at 495, 320 N.W.2d 878. It was already well established at the time of the Freeman decision that a person could waive the protection against unreasonable searches and seizures by consenting to a search. See, e.g., People v. Rosales, 406 Mich. 624, 629, 281 N.W.2d 126 (1979) (further search after a Terry protective search requires consent or probable cause).

Against this background, it would have made no sense for the Freeman Court to have concluded that a request for consensual production of an item constituted a "search" or "seizure" requiring objective justification. In context, we believe that the references by the Freeman Court to the officers in that case having "asked" the defendant to produce identification and get out of his car reflected mandatory directions, not requests for voluntary action. Thus, Freeman, properly understood, does not require a holding that reasonable suspicion is necessary for a police officer to ask a person to voluntarily produce identification.

Moreover, following several United States Supreme Court rulings, this Court ruled some years later that "for Terry purposes a police approach for questioning on the street amounts to a consensual encounter, not a Terry stop, unless there exist intimidating circumstances leading the person to reasonably believe he was not free to leave or the person rebuffs the police officer by refusing to answer and walking away. It is in the latter situations that justification for a Terry stop must be present before the police may detain the person." People v. Daniels, 160 Mich.App. 614, 619, 408 N.W.2d 398 (1987). See also People v. Sinistaj, 184 Mich.App. 191, 197, 457 N.W.2d 36 (1990); People v. Sasson, 178 Mich.App. 257, 259-260, 443 N.W.2d 394 (1989).

In a more recent case, People v. Taylor, 454 Mich. 580, 583, 564 N.W.2d 24 (1997), an officer saw the five defendants sitting in a car in a public-access parking lot late at night. The engine was turned off, and defendants were eating sandwiches. Id. Curious about why the defendants were sitting in a parked car, a police officer approached. When the driver rolled down his window, the officer smelled the odor of burnt marijuana. The officer asked the defendants for identification and if they had been smoking marijuana. The defendants stated that they did not have identification and had not been smoking marijuana. Id. at 583-584, 564 N.W.2d 24. The officer then called for a back-up unit to assist with a possible controlled-substances violation. Id. at 584, 564 N.W.2d 24. The Court ruled that, when the officer approached the car and asked defendants if they would answer some questions, he had not violated the Fourth Amendment. The Court stated that the encounter was "justified as a mere inquiry, and thus was reasonable without a showing of probable cause." Id. at 590, 564 N.W.2d 24. However, once the officer called for back-up "so that he could have assistance in ordering the defendants out of the car," the officer seized defendants. Id. Accordingly, we consider it established that a police officer's request for voluntary action does not constitute a "search" or "seizure" requiring objective justification.

Although the circumstances that led Officer Millikin to approach defendant here and those that led the officers to approach the defendant in Freeman were similar, this, alone, does not require a similar result. The Freeman Court did not hold that objective...