Opinion
SC 165663 COA: 361204
07-26-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TERRENCE CHARLES HICKS, Defendant-Appellant.
Wayne CC: 21-005542-FH
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
On order of the Court, the application for leave to appeal the May 4, 2023 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and REINSTATE the Wayne Circuit Court's April 14, 2022 order of acquittal and dismissal without prejudice.
This case concerns whether evidence of defendant being in possession of an unlawfully concealed weapon was obtained as the result of an unlawful seizure and whether the trial court erred by suppressing this evidence. "A court's factual findings at a suppression hearing are reviewed for clear error, but the application of the underlying law-the Fourth Amendment of the United States Constitution and article 1, § 11 of the Michigan Constitution-is reviewed de novo." People v Slaughter, 489 Mich. 302, 310 (2011). A police officer may approach and temporarily detain a person for the purpose of investigating possible criminal behavior, even if there is no probable cause to support an arrest. Terry v Ohio, 392 U.S. 1, 20-22 (1968). A Terry stop allows an officer to conduct a brief, warrantless seizure when the officer has at least a reasonable suspicion of criminal activity based on articulable facts. Id. at 20-27. The threshold question under Terry is whether a person is seized, as not all encounters between police and individuals constitutes a seizure. Id. at 19 n 16. A person is seized under the Fourth Amendment if, in view of the circumstances surrounding the incident, a reasonable person would not believe they are free to leave or to terminate the encounter with law enforcement. People v Lucynski, 509 Mich. 618, 635-636 (2022). This question requires us to objectively consider the totality of the circumstances underlying the police encounter from the perspective of a reasonable person. See id. at 643. Accordingly, a brief recitation of the facts and the record findings of the lower courts illustrates why a reasonable person in defendant's position would not have believed they were free to leave or to terminate this police encounter.
A group of Detroit police officers in a law enforcement raid van and two other patrol vehicles had recently completed executing a search warrant and were driving through a residential neighborhood when they observed a group of five to eight people drinking alcohol while standing in the street. The group in the street was blocking the path of the police vehicle but began to disperse as the police vehicle approached. The officer driving the raid van parked in the middle of the street and at least five officers-including several wearing tactical police body armor-quickly exited the van, and some pursued the group that had already begun to disperse. Three of these officers, however, exited the van and rushed toward a minivan that was parked near the right-hand curb with its rear passenger door open. The minivan appeared to be occupied by at least two people, and two children were standing on the sidewalk near the open door. One of these officers, Officer Mario Rodriguez, physically grabbed defendant within two seconds of arriving at the side door of the minivan and lifted defendant's hooded sweatshirt revealing a handgun clipped to his waistband. Within two seconds of this, Officer Amir Amen-Ra, who was behind Officer Rodriguez, helped to pull defendant out of the vehicle. A third officer stood near the front passenger door of the minivan during this encounter. As the officers pulled defendant out of the minivan, the audio on the officers' body cameras engaged, and defendant can be heard admitting that he did not possess a concealed pistol license. The officers seized the gun and placed defendant under arrest. Defendant was charged with unlawfully carrying a concealed weapon in violation of MCL 750.227.
Drinking alcohol while on a public street is a violation of state law, MCL 436.1915(1), and city ordinance, Detroit Ordinance, § 31-5-2.
Two additional police vehicles parked in the street behind the raid van-one off to the left and one off to the right-effectively blocking the entire roadway during the pendency of the events in question. Multiple officers exited these vehicles to investigate.
Officer Amen-Ra testified at defendant's preliminary examination. He explained that after approaching the minivan, he "observed the [defendant] sitting on the floorboard of the minivan. And I immediately recognized that he had what appeared to be a pistol inside the waistband, uh . . . I don't know. Pistol clip inside the waistband." Officer Amen-Ra clarified that this was "the clip to inside the waistband holster. At this time[,] I didn't see a weapon. I just saw what I recognized as a clip to a holster." However, Officer Amen-Ra did not specify whether he observed the pistol clip on defendant's waist before or after Officer Rodriguez, who can be seen ahead of Officer Amen-Ra on the video footage, arrived at defendant's side, grabbed defendant, and reached for his waistband. Rather, Officer Amen-Ra stated that "I asked my partner and then I approached him. He gestured to me and pointed towards the clip. He-at this time he didn't verbalize anything at all. He just state[d] that he was concealing a weapon that he was a CPL and things like that[,]" and then "my partner I believe PO Rodriguez lifted his shirt and recovered a loaded firearm." When asked on cross-examination whether an officer "almost immediately grabbed" defendant, Officer Amen-Ra conceded, "it appears that one of my partners did make a very quick contact with [defendant]. But he could have observed the same thing I did immediately with the pistol-the clip for the holster." Officer Rodriguez did not testify at defendant's preliminary examination.
It is impossible to know exactly what was said during the initial moments of this encounter because the audio on the officers' body cameras was not activated until after defendant was pulled from the minivan.
It is not clear from the transcript whether this is a reference to defendant or Officer Amen-Ra's partner.
The district court bound defendant over to circuit court on charges of unlawfully carrying a concealed weapon. Following the bindover, defendant moved to suppress the seized firearm as the fruit of an unlawful seizure because the police officers "did not have a reasonable, articulable suspicion that [he] was engaged in criminal activity" before seizing him.
The circuit court granted the motion, specifically holding that there was no reason for police to investigate the minivan because there was no evidence presented that anyone saw defendant in possession of or consuming alcohol or an open container, "[a]nd nobody testified that [defendant] was a part of that group" of individuals who were observed drinking. The "testimony on the record was that they didn't even see [defendant] as a part of that crowd and [Officer Amen-Ra] specifically said he could have been seated there already. So what would be the reason that they went to the van at all." The circuit court went on to state the following:
The circuit court based this holding on the body-camera footage and Officer Amen-Ra's testimony at defendant's preliminary hearing.
They didn't follow somebody with alcohol in their [hand] to the van. We don't even know that Mr. Hicks was a part of that group. So, that is what I'm saying, [prosecutor], I understand that once they get to the van, yes, they see something. That's not my problem my problem is why did they go to the van in the first place there's no testimony on this record that he was a part of that group. And a matter of fact, the testimony is they don't know if he was a part of the group and, matter of fact, they could have been sitting there all together. So, there was no reason to go to the van. They had no reason[;] there needs to be reasonable suspicion based on something as to why you're investigating[;] you can't just jump out of your raid van and run to a van and then check somebody out who does not even apply to the crew. So, the Court is going to suppress [the evidence seized from defendant].As a result of suppressing the only evidence of illegal activity related to defendant, the circuit court dismissed the case without prejudice.
The prosecution appealed, and the Court of Appeals reversed the circuit court in a split decision. The Court of Appeals majority did not overrule any of the circuit court's factual findings as being clearly erroneous. Rather, the majority concluded that the police officers were "free to pass by both sides of the minivan on the street as they moved to investigate a potential violation of the law," and
because defendant was sitting near the edge of the minivan with his body exposed to public view on the residential street, the police officers-as with any private citizen passing by-had a right to view defendant as he sat exposed through the open door of the minivan. In the course of doing so, Officer Amen-Ra and apparently Officer Rodriguez as well observed that defendant appeared to be in possession of a pistol holster inside of his waistband, which suggested to them that the defendant may also be in possession of a firearm. [People v Hicks, unpublished opinion of the Court of Appeals, issued May 4, 2023 (Docket No. 361204), p 4.]
The majority went on to hold that once the officers observed a pistol clip, they were justified under Terry to search defendant "for officer and public safety" and "also were warranted in suspecting that 'criminal activity may be afoot . . . .'" Id. "For these two reasons, the seizure and search of defendant, which led to discovery of the concealed handgun, was justified and was not illegal." Id. at 4-5.
We disagree. As the circuit court and Judge Rick correctly concluded (in her dissenting opinion in the Court of Appeals), the record evidence demonstrates that three police officers ran from the police vehicle, immediately surrounded the minivan and the rear passenger door where defendant was seated, and blocked the defendant's only reasonable means of egress from the parked vehicle he occupied. In addition to the three officers who surrounded defendant, this event involved a police raid van and two additional patrol vehicles that appear to have blockaded the road and several additional officers who had fanned out to pursue the individuals who were observed drinking alcohol on the public street. This was not a consensual encounter, and a reasonable person would not believe that they were free to leave or terminate the encounter once three officers in tactical body armor exited a raid van and quickly surrounded them while they sat in a parked vehicle. The record reveals no evidence, at this stage of the interaction, to provide reasonable suspicion that defendant was engaged in criminal activity while sitting with his feet on the ground on the edge of a lawfully parked minivan near two children while talking with other individuals who were not seen drinking in the street. On the current record, we conclude that defendant was seized for purposes of the Fourth Amendment either seconds before Officer Rodriguez physically grabbed defendant or at the moment defendant was physically grabbed by the officer. Officer Amen-Ra could not provide clear testimony as to when he observed the pistol clip. It is unclear whether Officer Amen-Ra observed the pistol clip within the first second of arrival at the side of the minivan, whether his observation was simultaneous with when Officer Rodriguez physically grabbed defendant a second or two later, or whether Officer Amen-Ra's observation was made after this event. The prosecution did not present Officer Rodriguez as a witness at the preliminary examination, and thus we do not know what observations he made or when they were made. In the absence of more concrete testimony as to when the pistol clip was observed, we cannot conclude that any officer made this observation before defendant was seized within the meaning of the Fourth Amendment. As Judge Rick explained, "justification for a Terry stop must be present before the police may detain the person." Hicks (Rick, P.J., dissenting), unpub op at 5 (emphasis added).
Therefore, defendant was seized without reasonable suspicion of criminal activity because the police officers did not possess reasonable suspicion that defendant was armed until after he was seized for purposes of the Fourth Amendment. Accordingly, all evidence gathered as a result of this unlawful seizure was correctly suppressed by the circuit court, and the court correctly dismissed without prejudice the case against defendant.
Viviano, J. (dissenting).
The relevant events in this case occurred in a time span of approximately five seconds. That is how long it took for the officers to exit their vehicle, approach defendant, see in plain view from a public street that he had a pistol holster clip on his waistband, and seize defendant's loaded pistol. Five seconds. Instead of applauding the officers for their perceptiveness and speed-allowing them to avoid a potentially fatal encounter-the Court of Appeals dissenting judge declares these facts "egregious," People v Hicks, unpublished per curiam opinion of the Court of Appeals, issued May 4, 2023 (Docket No. 361204) (Rick, P.J., dissenting), p 1, and a majority of this Court apparently agrees with that ridiculous assessment. Reversing the Court of Appeals majority's opinion, the Court declares that an unlawful seizure occurred in this remarkably brief time span, and therefore the evidence gathered must be suppressed (and gun charges against this defendant dismissed). I am astounded by this outcome.
There is no dispute that the officers were properly investigating a group of people who they saw with open alcohol containers in a public street congregating near the minivan in which defendant was seated. There is no dispute that defendant was seated on the floorboard of the minivan, in the open side doorway, with his feet on the ground. And there is no real dispute that the officers saw a pistol holster clip on his waistband in plain view as they approached and that they immediately seized his weapon.
That the pistol holster clip on defendant's waistband was visible in plain view is apparent from Officer Amir Amen-Ra's testimony:
At that time I observed the individual I just referenced sitting on the floorboard of the minivan. And I immediately recognized he had what appeared to be a . . . [p]istol clip inside the waistband. . . .
* * *
. . . [N]ot a pistol clip but the clip to inside the waistband holster. At this time I didn't see a weapon. I just saw what I recognized as a clip to a holster.The officer immediately recognized the clip on defendant's waistband as a pistol holster clip because he comes across several people a day who have pistol holster clips and wears one himself when he is off-duty. This is confirmed by the police bodycam videos, which show the officers recovering the concealed weapon immediately upon approaching defendant. The majority contends that the record is unclear as to precisely when the responding officers observed the pistol holster clip. The majority is correct that Officer Mario Rodriguez, who physically seized defendant and secured his weapon, did not testify. But based on Officer Amen-Ra's testimony that he saw the pistol holster clip as he approached and the fact that the officers immediately seized defendant's weapon, it is certainly a reasonable inference from the evidence that the pistol holster clip was visible to the officers as they approached the van. In light of the instantaneous nature of the seizure, the majority's speculation that the officers may not have seen the pistol holster clip until after Officer Rodriguez grabbed defendant defies common sense. It would be an amazing stroke of luck to disarm a person so quickly if the officers had no idea that he had a weapon on his person, much less where it was located. The trial judge seemed to recognize this when she stated, "I understand that once they got to the van there was something that was seen . . . ." But later she stated, "I don't even think it's on the record that it was in plain view." To the extent she was referring to the weapon itself, as opposed to the pistol holster clip, this observation was accurate but not legally relevant.
I agree with the Court of Appeals majority that the officers' actions in approaching defendant on a public street to investigate the open-intoxicants violations did not implicate the Fourth Amendment. See United States v Franklin, 323 F.3d 1298, 1301 (CA 11, 2003) (" 'There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.' "), quoting Terry v Ohio, 392 U.S. 1, 34 (1968) (White, J., concurring). See also Florida v Bostick, 501 U.S. 429, 434 (1991) ("[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions."). An individual is only seized when, from the perspective of a reasonable person, (1) he "would have believed that he was not free to leave" or (2) if the person has no desire to leave, he does not "feel free to decline the officers' requests or otherwise terminate the encounter[.]" Brendlin v California, 551 U.S. 249, 255 (2007) (citations and quotation marks omitted).
The notion that defendant was spontaneously seized when the officers approached him and before they began speaking to him is a legal absurdity. As noted above, the officers had a right to be on this public street, and they had a right to investigate the occupants of the minivan and the other people who were congregating on the street near the minivan with open intoxicants. But, before the officers could even speak to defendant, they viewed a pistol holster clip on his waistband. In any event, the few seconds that passed between the officers' approach and their discovery of defendant's pistol holster clip was obviously too brief to amount to a seizure of defendant. See United States v Douglass, 467 F.3d 621, 624 (CA 7, 2006) (holding there was no seizure "considering the brevity and unintrusive nature of [an] encounter" where "[o]nly a few moments . . . passed between the officers' approach and [one officer's] discovery of . . . ammunition in [the defendant's] vehicle"); United States v Goodwin, 449 F.3d 766, 768 (CA 7, 2006) (holding that an encounter was too brief in time to amount to a seizure of the defendant); United States v Broomfield, 417 F.3d 654, 656-657 (CA 7, 2005) (holding that no seizure occurred where the record showed that the encounter "lasted only seconds" before the police officer developed probable cause; before the police officer even had a chance to ask a single question of defendant, he noticed the gun, at which point he had probable cause to arrest him).
The officers had a right to approach the minivan even if they did not see any of its occupants with open alcohol containers before they approached the vehicle. See United States v Drayton, 536 U.S. 194, 201 (2002) ("Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions [or] ask for identification . . . provided they do not induce cooperation by coercive means."). Indeed, even though they did not see defendant with an open alcohol container, and even if they did not see his pistol holster clip in plain view, the officers would likely have been justified in briefly detaining him in the course of their investigation of the other people congregating around the vehicle. See United States v Lewis, 674 F.3d 1298, 1306 (CA 11, 2012) ("Case precedent from both the Supreme Court and this Circuit has established that, for safety reasons, officers may, in some circumstances, briefly detain individuals about whom they have no individualized reasonable suspicion of criminal activity in the course of conducting a valid Terry stop as to other related individuals."), citing Maryland v Wilson, 519 U.S. 408 (1997).
See also United States v Childs, 277 F.3d 947, 950 (CA 7, 2002) (holding that "[a]pproaching a person on the street (or at work, or on a bus) to ask a question causes him to stop for at least the time needed to hear the question and answer (or refuse to answer)," but it is not a seizure); United States v Hooper, 935 F.2d 484, 489, 492 (CA 2, 1991) (rejecting the defendant's contention that the federal agents' conduct in approaching him and asking him questions amounted to a seizure).
And while there were "multiple police officers" on the scene, that fact alone does not tip the scales in favor of a seizure. First, "the threatening presence of several officers" is only one of the "seizure" factors cited in the seminal case of United States v Mendenhall, 446 U.S. 544, 554-555 (1980) (opinion by Stewart, J.). None of the other factors was present: the officers did not display their weapons, they did not physically touch defendant until after observing the pistol holster clip on his waistband, and there is no evidence they used forceful language. Second, the number of officers and, indeed, the encounter itself was mere happenstance: the officers were part of a crew that was returning from executing a search warrant in an unrelated matter when they happened upon a crowd consuming alcohol in the street. In any event, since there were a large number of people in the crowd, the number of officers was certainly reasonable in relation to the number of individuals being investigated.
Nor is it clear what the majority means when they assert that the officers "blocked the defendant's only reasonable means of egress." The officers parked their van behind the minivan, and there is no allegation that the minivan was blocked in by the police van. The officers approached on both sides of the minivan because there were people in the minivan and on the street who were part of the investigation. The officers did not "surround" the rear passenger door where defendant was seated; rather, in the span of a few seconds, the first officer approached defendant, saw defendant was armed, and the other officers helped to disarm defendant. The officers did not block defendant's egress until they saw that he had a weapon, which happened simultaneously with their approach.There was no seizure in this case in the brief moments before evidence of a weapon was discovered in plain view.
The majority notes that two additional patrol vehicles parked behind the police van and "appear to have blockaded the road . . . ." But the majority does not explain how the positioning of the police vehicles behind the minivan defendant was seated in is relevant to the analysis. Defendant never claimed that the minivan was blocked in-and it is hard to see how he could in light of the fact that there were no police vehicles in front of the minivan, and therefore the police vehicles did not prevent it from moving forward.
When the officers viewed the pistol holster clip on defendant's waistband, the encounter quickly ripened into an investigative stop under Terry, 392 U.S. 1, because the officers at a minimum had reasonable suspicion that defendant was committing a crime by carrying a concealed weapon. But more importantly (and more urgently), the officers certainly had sufficient cause to conduct an immediate search and remove the weapon from inside defendant's waistband. As this Court recently recognized:
Generally, under the United States Supreme Court's decision in Terry v Ohio, 392 U.S. 1 (1968), police officers may conduct an investigatory stop if they
have "reasonable suspicion that crime is afoot." People v Champion, 452 Mich. 92, 98 (1996) (quotation marks and citation omitted). When conducting such a stop, an officer who has reasonable suspicion that a person is armed and dangerous may perform a limited protective search without a warrant. Terry, 392 U.S. at 26; see also Champion, 452 Mich. at 99. "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. at 27; see also People v Custer, 465 Mich. 319, 328 (2001). [People v Turner, 511 Mich. 992, 992 (2023).]Here, the officers had a very high degree of confidence that defendant was armed after they saw his pistol holster clip in plain view-one's head must be buried deeply in the sand not to conclude that "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. at 27.
Courts have long recognized that the safety of police officers in the performance of their duties is of paramount importance. See Pennsylvania v Mimms, 434 U.S. 106, 110 (1977) ("We think it too plain for argument that the State's proffered justification-the safety of the officer-is both legitimate and weighty. 'Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.' "), quoting Terry, 392 U.S. at 23. And the United States Supreme Court has taken note of the particular dangers that exist when an officer approaches a person seated in an automobile. See Mimms, 434 U.S. at 110 ("And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile.").
See also United States v Michelletti, 13 F.3d 838, 844 (CA 5, 1994) ("The number of police officers killed annually in the line of duty has tripled since Terry was decided; the numbers of those assaulted and wounded have risen by a factor of twenty. Surely the constitutional legitimacy of a brief patdown such as occurred here may and should reflect the horrendously more violent society in which we live, twenty-five years after Terry."); State v McGill, 234 Wis.2d 560, 568-569 (2000) ("The need for officers to frisk for weapons is even more compelling today than it was at the time of Terry. In 1966, 57 law enforcement officers were feloniously killed in the line of duty and 23,851 officers were assaulted. . . . Although the number of officers killed in the line of duty has increased only slightly (61 officers killed in 1998), the number of assaults on officers has more than doubled (59,545 line-of-duty assaults in 1998)."). According to the National Fraternal Order of Police, "378 [police] officers were shot in the line of duty in 2023, the highest number the FOP has ever recorded." See Fraternal Order of Police, 378 Officers Shot in the Line of Duty in 2023 <https://fop.net/2024/01/378-officers-shot-in-the-line-of-duty-in-2023/> (posted January 2, 2024) (accessed May 16, 2024) [https://perma.cc/AC2A-38j4 ].
As Professor Wayne LaFave has observed, "[t]he police are frequently cautioned to assume that every person encountered may be armed, which is sound advice if it means only that the officer should remain alert in every case . . . ." 4 LaFave, Search and Seizure (6th ed), § 9.6(a), pp 871-872. Fortunately, as the district judge noted at the preliminary examination, the officers in this case were alert, and they "did act quickly and thank goodness."
From the comfortable remove of an appellate court, where we are seated behind metal detectors and have more than five seconds to evaluate a potentially life-or-death situation, it is fair to ask the majority what should the police have done in this circumstance? Not investigate alleged criminal activity in a public street? Walked past the van and ignored its occupants? Only let two officers venture into the crowd? Ignored defendant's gun holster clip? Be less concerned about their safety and the safety of others?
This case is yet another example of excellent police work disparaged by our Court as illegal activity. See, e.g., People v Lucynski, 509 Mich. 618, 672 (2022) (Zahra, J., dissenting) ("Deputy Robinson's conduct in this case was not only reasonable, it was exemplary, good police work. He should not be criticized for his conduct; instead, he should be congratulated."). The majority once again mischaracterizes a routine street encounter as a seizure. This trend "toward characterizing every encounter between a citizen and the police as a 'seizure' . . . will make the work of policing more dangerous and the public less safe from criminal activity." People v Duff, ____Mich ____(2024) (Docket No. 163961) (Viviano, J., dissenting); slip op at 20.
See Lucynski, 509 Mich. at 634-646, 656-657 (holding that the defendant was seized when the officer parked a few feet behind the defendant's vehicle, which was parked on a single-lane driveway on a rural road, even though the defendant was not in the vehicle); Duff____, Mich____(holding that the police seized the defendant, who was in a running vehicle parked in an empty school parking lot at night, by parking their vehicle 10 feet behind his vehicle, pointing their spotlight and headlights at his car, and approaching his vehicle, even though they left room for the defendant to drive away, did not activate their overhead lights, did not direct any commands toward defendant, did not touch their weapons, and did not use an aggressive tone of voice when they approached the defendant).
Zahra, J., did not participate due to a familial relationship with counsel of record.