People v. Tebedo

• Decision Date: 23 February 1978
• Docket Number: Docket No. 31039
• Citation: 265 N.W.2d 406,81 Mich.App. 535
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary TEBEDO, Defendant-Appellant. 81 Mich.App. 535, 265 N.W.2d 406
• Court: Court of Appeal of Michigan — District of US

Page 406

265 N.W.2d 406

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary TEBEDO, Defendant-Appellant.

Docket No. 31039.

81 Mich.App. 535, 265 N.W.2d 406

Court of Appeals of Michigan.

Feb. 23, 1978.

Released for Publication May 10, 1978.

[81 MICHAPP 536] Terrance P. Sheehan, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P. J., and ALLEN and MAHER, JJ.

PER CURIAM.

Charged with armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, defendant was convicted by a jury on March 18, 1976. The trial court sentenced him to a term of 30 to 40 years. He comes before this Court on a delayed appeal.

On June 25, 1975, a Kroger grocery store on [81 MICHAPP 537] Corunna Road in Flint Township was robbed. On June 28, 1975, two officers from the Flint Township police department received a call from a Genesee County police car that a suspicious person had been spotted in the area of the Kroger store on Corunna Road. No connection was made between the individual spotted and the June 25th robbery.

The officers drove to an area approximately one-quarter mile from the store, stayed ten to fifteen minutes but saw no one. They then proceeded into a private drive in the rear of the nearby Circle Court Apartments where defendant lived. They saw defendant standing behind the last row of buildings, about ten feet from the door of his apartment. As they approached defendant in their marked police car, he ran.

One of the officers got out of the car and gave chase. After pursuing defendant for two blocks, the officer drew his gun and ordered defendant to halt. He laid defendant on his stomach and handcuffed him. It was then, according to the police testimony, that defendant said "he knew we had him for the robberies and that's why he ran". The officers also testified that defendant's only suspicious action was his running; he indicated that while defendant was standing outside his residence he was doing nothing suspicious.

Defendant alleges error in the trial court ruling which admitted into evidence the statement defendant made when first stopped by police. He claims that because his arrest was unlawful, the incriminating statement must be suppressed as the fruit of the poisonous tree.

A police officer may not without a warrant arrest a person unless a felony has been committed and the officer has reasonable cause to believe [81 MICHAPP 538] that such person has committed it. M.C.L.A. § 764.15(c); M.S.A. § 28.874(c). A police officer may, however, "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 v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). It is not unlawful for a police officer to stop persons when he has observed "unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot". People v. Whalen, 390 Mich. 672, 680, 213 N.W.2d 116, 120 (1973).

But in justifying the intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. 1868. In the present case the parties dispute whether the actions of the officers constituted an investigative stop or an arrest.

We note first that, whatever it is determined to be, the officers could articulate no specific facts which would warrant an intrusion of the kind made upon defendant. They stated that when first spotted, defendant was merely standing about ten feet from the door of his apartment, an action which cannot reasonably be called suspicious.

"There must be something at least in the activities of the person being observed or in his surroundings that affirmatively suggests particular criminal activity, completed, current, or intended." Sibron v. New York, 392 U.S. 40, 73, 88 S.Ct. 1889, 1907, 20 L.Ed.2d 917 (1968) (Harlan, J., concurring).

The officers in this case had no knowledge and no [81 MICHAPP 539] reason even to suspect that defendant was linked to a robbery which occurred three days earlier. Their testimony reveals the police made no connection between the defendant and the robbery of the grocery store.

Moreover, an investigative stop if the police action is so characterized must be justified at its inception and must be reasonably related in scope to the circumstances which justified the interference in the first place. Terry v. Ohio, supra, 392 U.S. at 20, 88 S.Ct. 1868. The justification in this case was a radio report that a suspicious person had been seen in the vicinity of the Kroger store. A stop of even limited scope in such a situation is of dubious propriety. The "stop" in this case was not, however, limited in scope nor strictly tied to and justified by circumstances which rendered its initiation permissible. Rather, the police actions constituted an arrest, as the trial court aptly explained to the jury. Laying one who has been detained on his stomach on the ground and then handcuffing him are not the elements of an investigative stop.

The police and the prosecutor attempt to justify the warrantless arrest on the basis of defendant's flight from the police car. Flight alone does not justify an arrest, particularly when, as here, defendant's running is not flight from the scene of a reported crime. The police must positively relate the flight to commission of a crime. People v. Dogans, 26 Mich.App. 411, 182 N.W.2d 585 (1970).

"Flight may be some evidence of consciousness of wrongdoing, but it does not necessarily point to the commission of a felony. A police officer may not arrest for consciousness of wrongdoing. He must have reasonable cause to believe that a felony has been committed and that the accused person committed it." 26 Mich.App. at 421, 182 N.W.2d at 590 (Footnotes omitted.)

[81 MICHAPP 540] When first observed by the police, defendant was doing nothing suspicious. On that basis the officers had no reason to arrest or even to stop the defendant. Defendant began to run. It must be emphasized that he was not running from the scene of any reported criminal activity. The police try to justify their actions by calling defendant's flight suspicious.

For purposes of an investigatory stop, police officers cannot use subsequent actions by the accused...