Opinion
Docket No. 130410.
Decided July 20, 1992, at 9:30 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for the people.
Stempien Stempien, P.C. (by Scott D. Kappler), for Allan Chambers on appeal.
Jerome Harris, for Gray Chambers on appeal.
James A. Waske, for William K. Honeycutt on appeal.
Before: MICHAEL J. KELLY, P.J., and SULLIVAN and CONNOR, JJ.
Defendants were charged with several counts of breaking and entering an unoccupied building with intent to commit larceny, MCL 750.110; MSA 28.305. The trial court granted defendants' motion to dismiss based on their claim of an illegal arrest. The people appeal as of right. We reverse.
At about 3:00 A.M. on March 5, 1990, Canton Township Police Officer Jerry Hardesty was called to investigate a "suspicious situation." He talked to a tow-truck driver who had seen three white men moving something on a golf course near a highway he was traveling. When the driver confronted them, the men had threatened to "cap" him, and then had run away. Hardesty confirmed that a pile of "equipment" had been left behind, and saw three sets of footprints in the five inches of freshly fallen snow.
The footprints led in the direction of an apartment complex. Hardesty radioed for other officers to be on the lookout for three white males suspected of larcenous activity headed in the direction of the apartment complex. Officer Daniel Antieau heard the radio message. He saw three white men, the defendants, leaving the apartment complex in an automobile. The car was the only one on the road, and there were no other tire tracks in the snow.
Officer Antieau stopped the car and began to question, the driver. A couple of minutes later, Officer Hardesty arrived and saw that two of the men were wearing work boots and the third was wearing tennis shoes. He went back to the abandoned equipment and followed the tracks in the snow. He saw that the tracks were consistent with the shoes of the men Antieau had stopped. The tracks led to a storage locker facility that had obviously been broken into. In one of the storage rooms, Hardesty found the print of a tennis shoe on the top of a table. Officer Hardesty radioed Officer Antieau, who placed all three men under arrest. In all, defendants were detained for about twenty minutes before they were formally arrested.
The prosecution contends on appeal that the twenty-minute detention did not transform the "investigative stop" into an illegal arrest, and that therefore the trial court erred in dismissing this case. We agree.
We first note that suppression of evidence, not dismissal of the charge, is the proper remedy for an illegal search or seizure. People v Dalton, 155 Mich. App. 591, 597; 400 N.W.2d 689 (1986). However, without the evidence obtained as a result of the twenty-minute detention, there would be nothing to tie defendants to the crimes with which they were charged, making dismissal inevitable.
A trial court's decision to suppress evidence will not be disturbed unless the ruling was clearly erroneous. People v Martinez, 187 Mich. App. 160, 171; 466 N.W.2d 380 (1991), lv den 439 Mich. 929 (1992), remanded on other grounds on reconsideration 439 Mich. 979 (1992). A decision is clearly erroneous if, although there is evidence to support it, the Court is left with a definite and firm conviction that a mistake has been made. Id. Although we find no clear error in the trial court's factual findings in this instance, we reverse because we are left with the definite and firm conviction that the trial court erred in suppressing the evidence.
Whenever a police officer stops someone and restrains that person's freedom to leave, the officer has "seized" the person under the Fourth Amendment. Terry v Ohio, 392 U.S. 1, 16; 88 S Ct 1868; 20 L Ed 2d 889 (1968). However, the constitution does not forbid all seizures, only unreasonable ones. Id. at 9. A brief stop of a suspicious individual, in order to maintain the status quo momentarily while more information is obtained, may be reasonable. Adams v Williams, 407 U.S. 143, 146; 92 S Ct 1921; 32 L Ed 2d 612 (1972). And, "If the purpose underlying a Terry stop — investigating possible criminal activity — is to be served, the police must under certain circumstances be able to detain the individual for longer than the brief time period involved in Terry and Adams." Michigan v Summers, 452 U.S. 692, 701, n 12; 101 S Ct 2587; 69 L Ed 2d 340 (1981).
In determining whether an "investigatory stop" is reasonable, the court must examine both the character of the official intrusion and its justification. Id. at 701. Such an "investigatory stop" must be founded on a particularized suspicion, based on an objective observation of the totality of the circumstances, that the person stopped has been, is, or is about to be involved in criminal wrongdoing. People v Shabaz, 424 Mich. 42, 59; 378 N.W.2d 451 (1985). See also People v Armendarez, 188 Mich. App. 61, 66-68; 468 N.W.2d 893 (1991).
While arguing in support of the trial court's dismissal, defendants question whether Officer Antieau had a particularized suspicion sufficient to justify stopping the car. We agree with the trial court's implicit finding that he did.
A police officer's reasonable suspicion may be based on information obtained from another. Adams, supra at 147. See also People v Estabrooks, 175 Mich. App. 532, 536-537; 438 N.W.2d 327 (1989). It was reasonable for Officer Antieau to suspect that these were the three men about whom Officer Hardesty had radioed. They were the only people seen at the apartment complex. They were three white men in a group. They were leaving the area to which the three "suspects" had fled. And the lone tracks in the snow clearly reflected that their car was the only one to have left the apartment complex in some time.
Moreover, it was reasonable for Officer Hardesty, and therefore Officer Antieau, to suspect the men had been involved in criminal activity. They had been seen moving equipment on a golf course at three in the morning during a heavy snowfall. When discovered, they threatened violence, then abandoned the equipment and fled.
Defendants' conduct raises a reasonable inference that the equipment had been obtained illegally. This behavior was far more indicative of criminal activity than merely running, sitting in a parked car, driving away from a business after hours, carrying a brown paper bag, or being black and driving a car slowly in a predominantly white neighborhood. Hardesty had a particularized suspicion of criminal activity, which he voiced when he radioed that he thought the equipment had been stolen. Compare with Shabaz, supra at 63-64.
People v Bryant, 135 Mich. App. 206; 353 N.W.2d 480 (1984); People v Dixon, 85 Mich. App. 271; 271 N.W.2d 196 (1978).
People v Freeman, 413 Mich. 492; 320 N.W.2d 878 (1982).
People v Bloyd, 416 Mich. 538; 331 N.W.2d 447 (1982).
People v Shabaz, 424 Mich. 42; 378 N.W.2d 451 (1985).
People v Burrell, 417 Mich. 439; 339 N.W.2d 403 (1983).
The possibility that the occupants of the car were engaged in criminal conduct was strong enough that, upon an objective appraisal of the situation, we would be critical of the officer had he failed to stop the car and conduct a brief investigation to determine if, in fact, an offense had occurred in the area. We find Officer Antieau's suspicion that the three had been involved in criminal activity to be reasonable. Thus, the investigatory stop was justified.
The trial court decided that although the stop may have been justified, holding the men for twenty minutes was not. We disagree. A twenty-minute detention does not transform an investigatory stop into an arrest as a matter of law. Compare United States v Sharpe, 470 U.S. 675, 686; 105 S Ct 1568; 84 L Ed 2d 605 (1985), with United States v Place, 462 U.S. 696; 103 S Ct 2637; 77 L Ed 2d 110 (1983). The question that must be asked in assessing whether a detention is too long in duration to be justified as an investigatory stop is whether the police were diligently pursuing a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain those stopped. Sharpe, supra.
The police did not have to engage in a "fishing expedition" to determine whether the equipment had been stolen. Compare with People v Bloyd, 416 Mich. 538; 331 N.W.2d 447 (1982). The newly fallen snow made it possible for them to confirm or dispel their suspicions in a matter of minutes by following the footprints to find out where the equipment had come from. The police diligently pursued this avenue of investigation until they, in fact, confirmed their suspicions.
Moreover, it was necessary to detain defendants while following the tracks in the snow. Although the three men's identities could have been determined very quickly, the circumstances indicated that they had been "caught in the act." This being the case, they were likely to have in their possession evidence of the crime, which would be lost absent detention.
Under the circumstances, the twenty-minute detention was reasonable. Therefore, the detention was not grounds for suppression of the evidence, and dismissal was not mandated.
Reversed and remanded. We do not retain jurisdiction.
MICHAEL J. KELLY, P.J., concurred.
I dissent.
Defendants were charged with breaking and entering an unoccupied building with intent to commit larceny, MCL 750.110; MSA 28.305. The circuit court granted defendants' motion to dismiss on the ground that the prearrest investigative detention was unreasonably long. I would affirm.
The trial court found that the length of detention in this case, twenty minutes, while police investigated to determine if a crime had been committed, was "unusual" and dismissed the charges. We review the court's findings for clear error. People v Bryant, 135 Mich. App. 206, 210; 353 N.W.2d 480 (1984). Under the circumstances, the trial court's finding was not clearly erroneous.
The trial court focused on the length of the detention. The prosecution argues that it was reasonably necessary to pursue an investigation, relying on United States v Sharpe, 470 U.S. 675; 105 S Ct 1568; 84 L Ed 2d 605 (1985). I would not address the length of detention, because the initial stop was not justified. The officer who stopped defendants' car had no reasonable, articulable suspicion that defendants had committed a crime. People v Armendarez, 188 Mich. App. 61, 66-67; 468 N.W.2d 893 (1991). He stopped their car solely on the basis of a radio report that three men, possibly white, had fled on foot from the area of a possible larceny. A different officer received information from a citizen-informant and tracked the car from the area where the men were last seen. That officer, however, was not the one who stopped the car, and the officer who did stop the car had none of the information that the other officer had obtained. The officer who stopped the car neither observed the defendants acting suspiciously nor trailed their car from the scene of the first observed suspicious activity. Compare People v Estabrooks, 175 Mich. App. 532, 538; 438 N.W.2d 327 (1989). The connection here between the stop and the later-discovered crime is too attenuated to pass constitutional muster.
I also disagree with the prosecution's contention that the court should not have dismissed the charges because the only possible remedy was suppression of evidence. I note first that the prosecution failed to raise this objection in the trial court. Even if it is not waived, and even if the appropriate order would have been to suppress evidence, this case would have been dismissed. The only evidence linking these defendants to the crime flowed from the illegal stop.
I would affirm.