Opinion
Docket No. 78-2119.
Decided April 17, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.
Jay S. Kalish, Legal Aid and Defender Association of Detroit, for defendant on appeal.
Before: D.C. RILEY, P.J., and J.H. GILLIS and MacKENZIE, JJ.
Defendant was charged with carrying a concealed weapon. MCL 750.227; MSA 28.424. After he was bound over for trial defendant brought a motion to suppress evidence and quash the information. The trial court granted defendant's motion and the prosecutor appealed. In an unpublished per curiam opinion this Court remanded the case for additional findings. Docket NO. 77-1139 (released March 9, 1978). The trial court carried out these instructions in an order dated April 25, 1978. The people now appeal from that order.
The parties stipulated that the factual basis for determination of the motion was contained in the preliminary examination transcript. That evidence was provided by the arresting officer's testimony. He stated that at approximately 1:30 a.m. on November 12, 1976, he and his partner spotted defendant and a female companion walking along Mack Avenue in the City of Detroit. According to the officer the female "appeared young looking". Suspecting the woman was in violation of Detroit's curfew ordinance, the officers pulled their car to the curb and, in the officer's words, "told the female to stop". At that point defendant made a movement toward his waistband, prompting the officers to draw their weapons and order him to freeze. As defendant stopped, a gun fell out of his coat. He was arrested on the instant charge and the two persons were transported to the station. There it was discovered that the woman was 19 years old and she was released.
The trial court based its order on two distinct grounds. First, the court found the officer's testimony that he was investigating a curfew violation to be "inherently incredible" under the factual situation presented. The trial court pointed out that the female was 19 years old and accompanied by the defendant, an adult, and the officer should have been mindful of the exemption from the curfew ordinance for "a minor accompanied by * * * other adult person having the care or custody of the minor". Detroit Municipal Code, ch 36, art 3. The court, therefore, concluded that the stop was not justified under Terry v Ohio, 392 U.S. 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
The trial court went on to rule that even if the witness were believed, the Detroit curfew ordinance is unconstitutional. Hence, the stop was unsanctioned and the evidence was obtained as a direct result of a violation of defendant's constitutional rights.
In reviewing a trial court's order to suppress evidence and dismiss the charges, this Court applies a "clearly erroneous" standard. People v Ulrich, 83 Mich. App. 19; 268 N.W.2d 269 (1978), People v Robertson, 81 Mich. App. 446; 265 N.W.2d 365 (1978), People v Terrell, 77 Mich. App. 676; 259 N.W.2d 187 (1977). A finding is "clearly erroneous" when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been made. People v Hummel, 19 Mich. App. 266, 270; 172 N.W.2d 550 (1969).
In this case we are convinced that a mistake has been made. The trial court's decision to suppress the gun was based on its determination that the initial stop was unlawful.
In People v White, 84 Mich. App. 351; 269 N.W.2d 598 (1978), two officers asked two males to get out of a car. The defendant, a female, had been sitting on the passenger side of the car. She was not requested to exit the car, but did so on her own. As she approached one of the officers, she reached as if to go into her purse. She was told not to go into the purse and when she did not stop the officer grabbed her hand. At that point he saw a revolver in the purse. In reversing the trial court's order suppressing the evidence, this Court stated:
"The decision to order the two males out of the car is not a question here. Defendant has no standing to raise it. She was not ordered out of the car, but rather, voluntarily injected her presence into this affair. As the circumstances developed, stopping her hand from entering her purse must be considered a protective act, justified under Terry v Ohio, 392 U.S. 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). The officer was not required to allow defendant access to the purse without first checking the contents. People v Ridgeway, 74 Mich. App. 306; 253 N.W.2d 743 (1977), lv den, 401 Mich. 831 (1977). Since the officer's actions up to that point were reasonable, the subsequent seizure of the weapon after it came into his view in the open purse was not unreasonable." 84 Mich App at 354.
In the instant case, the arresting officer testified, "We told the female to stop" and "We asked her to stop and show age and identification". There is no indication that defendant was ordered to stop. Hence, we conclude that defendant has no standing to question the validity of the initial stop.
When defendant reached into his waistband under his coat the officers thought he was going for a gun and ordered him to freeze. As in White, supra, the officers' actions at this point were justified under Terry v Ohio, supra. Since the officers' actions were reasonable at this point, the seizure of the gun after defendant dropped it was not unreasonable.
The order to suppress the evidence is reversed and the proceedings against defendant are reinstated.
Reversed.