People v. Tooks

• Citation: 403 Mich. 568,271 N.W.2d 503
• Decision Date: 20 November 1978
• Docket Number: No. 3,3
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John L. TOOKS, Defendant-Appellee.
• Court: Supreme Court of Michigan

Page 503

271 N.W.2d 503

403 Mich. 568

The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John L. TOOKS, Defendant-Appellee.

No. 3.

Supreme Court of Michigan.

Argued March 7, 1978.

Decided Nov. 20, 1978.

William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, Timothy A. Baughman, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

Sherry A. McCameron, Thomas M. Loeb, Detroit, Marcia G. Cooke, Student Atty., for defendant-appellee.

WILLIAMS, Justice.

As a result of rather specific information received from a citizen who refused his name because of fear of local gangs, John Levester Tooks was subjected to a pat-down police search during which a gun was discovered. He was subsequently charged with carrying a concealed weapon. The prosecutor appeals to this Court from affirmance by the Court of Appeals of an order to suppress that evidence.

We reverse.

I. FACTS

On November 6, 1975, an unidentified citizen approached two Detroit police officers and gave the officers information that he had observed a man showing a gun to two other men. He described the man with the gun as a black male, twenty years old, five feet, six inches tall, of medium build and wearing a black suede jacket. The two other men were also described by the citizen; the first was a black male, seventeen years old, five feet, six inches tall and wearing a green hat, and the second was a black male age seventeen or eighteen. The citizen refused to identify himself because of fear of "gangs in the area".

Four or five blocks from the location in which the officers had received the information, they encountered three males matching the descriptions given by the citizen. The officers observed that one of the three men wore a black suede coat and another wore a green hat. While one of the officers engaged in a pat-down search of defendant Tooks, who was wearing the black suede coat, he encountered a hard object and removed a .22-caliber pistol from the defendant's back pocket. Defendant Tooks was then arrested and charged with carrying a concealed weapon in violation of M.C.L. § 750.227; M.S.A. § 28.424.

Prior to trial, defendant's motion to suppress the evidence of the gun was granted by the Recorder's Court judge. The rationale for the suppression of the evidence was that the officers lacked probable cause to search and arrest the defendant. The Court of Appeals affirmed in an unpublished per curiam opinion.

This Court granted leave to appeal on June 2, 1977.

II. ISSUE

The sole issue to be decided by this Court is whether the information supplied to the police in person by an anonymous informant may justify a Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), pat-down search.

We hold that a pat-down search conducted under the circumstances of this case was justified.

III. LEGALITY OF SEARCH

In Terry v. Ohio, supra, the United States Supreme Court held that in certain circumstances police officers who have neither warrants nor probable cause to arrest or search may "stop and frisk" persons. While the Supreme Court held that a stop and frisk is subject to the Fourth Amendment prohibitions against unreasonable search and seizure, that Court recognized that the Fourth Amendment does not prohibit all search and seizure, but only those that are unreasonable. Terry, supra, 9, 88 S.Ct. 1868. The rationale for allowing police intrusion into the Fourth Amendment is a balancing of the police officer's practical need to initiate and conduct a brief on-the-spot investigation without jeopardizing his or her safety, against the individual's right to be free from unwarranted police intrusion.

The test under Terry to determine the validity of the stop and frisk is a "reasonable suspicion" test directed at determining (1) "whether the officer's action was justified at its inception, and" (2) "whether it was reasonably related in scope to the circumstances which justified the interference in the first place". Terry, supra, 20, 88 S.Ct. 1879. To justify an officer's conduct, the officer must "be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion". Terry, supra, 21, 88 S.Ct. 1880. In justifying a stop and frisk in circumstances that lack probable cause to arrest the Court held that such a search must be carefully circumscribed to what is necessary for the discovery of weapons.

In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Supreme Court extended the Terry stop and frisk rationale to situations in which the stop and frisk was prompted by an unverified tip from an informant. In allowing the stop and frisk based on information from an informant, the Adams Court focused on the nature of the information supplied by the informant. The Court clearly rejected the argument that a stop and frisk can only be based on the officer's personal observation, rather than on information supplied to the police by another person.

The information given by the informant in Adams was conclusory and unverified, and would have been insufficient for an arrest or search warrant. The officer had been approached by an informant known to him and told that an individual had narcotics and a weapon. The Court held the information sufficient to justify a stop and frisk, stating:

" * * * (W)hile the Court's decisions indicate that this informant's unverified tip may have been insufficient for a narcotics arrest or search warrant, * * * the information carried enough indicia of reliability to justify the officer's forcible stop of (the defendant)." Id. 147, 92 S.Ct. 1924.

The reasonableness standard of Terry and Adams has been followed in various cases in Michigan. See, E. g., People v. Stergowski, 391 Mich. 714, 219 N.W.2d 68 (1974), and People v. Eddington, 387 Mich. 551, 198 N.W.2d 297 (1972) (must look to reasonableness under all circumstances); People v. Parisi, 393 Mich. 31, 222 N.W.2d 757 (1974), and People v. Whalen, 390 Mich. 672, 213 N.W.2d 116 (1973) (automobile cases). However, the specific issue with which we are faced is new to this jurisdiction.

In determining whether the information from the citizen-informant carried enough indicia of reliability to provide the officers with a reasonable suspicion under the standards of Terry and Adams, we must examine three related factors: (1) the reliability of the particular informant, (2) the nature of the particular information given to the police, and (3) the reasonability of the suspicion in light of the above factors.

First, the informant in this case was unknown to the police and refused to identify himself during the disclosure of information. Defendant asserts that these factors There is certainly nothing inherently unreliable about a citizen as opposed to a known informant giving information to the police. A regular informant can, and often does provide police with detailed and accurate information and, because of a continuing relationship which at times exists, the police are in a position to judge the accuracy of such information based on a prior experience with the individual. However, informants by their very nature are often involved in or connected with criminal activity. To favor the known informant over the citizen in this case is illogical. We feel that information provided to law enforcement officers by concerned citizens who have personally observed suspicious activities is entitled to a finding of reliability when the information is sufficiently detailed and is corroborated within a reasonable period of time by the officers' own observations. As stated in a decision of the California Court of Appeals and cited as authority by the Michigan Court of Appeals, People v. Emmert, 76 Mich.App. 26, 31, fn. 1, 255 N.W.2d 757 (1977),

necessarily lead to the conclusion that the information was neither reliable nor credible. We do not agree.

" 'Citizen informants are not subjected with respect to their reliability to the same stringent test as persons who are themselves criminally involved or disposed upon the rationale that such citizens are motivated by good citizenship and their information is imparted in the aid of law enforcement.' " People v. Schulle, 51 Cal.App.3d 809, 813, 124 Cal.Rptr. 585, 587 (1975).

We find that there was ostensible reason for the citizen refusing to disclose his name and that there was no resulting inherent unreliability.

This finding is enhanced by and is especially true in light of the second related factor; the detailed information provided regarding the suspects which allowed independent verification by the police of any persons investigated pursuant to that information. The importance of the preciseness of description allowing independent verification is great, as demonstrated by Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), where an informant's information was found to give police sufficient probable cause to arrest a Higher standard than we are considering in the instant case. ¹ In Draper, an informant gave police extremely detailed information about the location, time, dress, build, etc. of the defendant therein. The informant also told the officer that the defendant would be carrying narcotics. The Court found that there was probable cause to arrest, despite the fact that there was no warrant, by reasoning that a magistrate, if confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way. The Court further found that the officer's ability to personally verify the identification because of the detail of description and location was an important factor.

" * * * (W)hen, in pursuing that information, he saw a man having the exact physical attributes and wearing the precise clothing and carrying the tan zipper bag that * * * (the informant) had described, alight from one of the very trains from the very place stated by * *...