Opinion
No. 352158 No. 352280
04-22-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MARCUS MARTELL MCCLOUD, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRUCE CLIFFIN EDWARDS, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 19-004033-01-FH Wayne Circuit Court
LC No. 19-004033-02-FH Before: BECKERING, P.J., and FORT HOOD and RIORDAN, JJ. RIORDAN, J. (dissenting).
I respectfully dissent. In my view, the police officers' seizure and subsequent search of defendants was consistent with the Fourth Amendment, and I would affirm the trial court.
"The Fourth Amendment of the United States Constitution and its counterpart in the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures." People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000), citing US Const, Am IV and Const 1963, art 1, § 11. "The right to be secure against unreasonable searches and seizures absent a warrant based upon probable cause is subject to several specifically established and well-delineated exceptions." Id.
The majority correctly states that "[o]ne exception to the warrant requirement is the so-called 'Terry stop,' an exception created by the United States Supreme Court in Terry v Ohio, 392 US 1, 30-31; 88 S Ct 1868; 20 L Ed 2d 889 (1968)." "Under this doctrine, if a police officer has a reasonable, articulable suspicion to believe a person has committed or is committing a crime given the totality of the circumstances, the officer may briefly stop that person for further investigation." People v Barbarich, 291 Mich App 468, 473; 807 NW2d 56 (2011). Further, as the majority implicitly recognizes, Terry also created the so-called "Terry frisk" exception, under which a police officer is permitted to engage in "a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Terry, 392 US at 27.
A police officer also is constitutionally allowed to detain an individual in order to safely conduct an investigation without meeting the higher "reasonable suspicion" identified in Terry. For example, in Maryland v Wilson, 519 US 408; 117 S Ct 882; 137 L Ed 2d 41 (1997), the United States Supreme Court held that a police officer may order a passenger out of a vehicle during a traffic stop for the purposes of officer safety even in the absence of any individualized reasonable suspicion to detain that passenger. See id. at 413. And in Michigan v Summers, 452 US 692; 101 S Ct 2587; 69 L Ed 2d 340 (1981), the United States Supreme Court held that the police may detain an occupant of a home during the execution of a search warrant because "[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Id. at 704-705. Here, even though a search warrant was not executed, "the [United States] Supreme Court has recognized [that] a police officer performing his lawful duties may direct and control—to some extent—the movements and location of persons nearby, even persons that the officer may have no reason to suspect of wrongdoing." Hudson v Hall, 231 F3d 1289, 1297 (CA 11, 2000).
[T]he [United States] Supreme Court has recognized limited situations at the scene of police activity in which it may be reasonable for police to detain people not suspected of criminal activity themselves, so long as the additional intrusion on individual liberty is marginal and is outweighed by the governmental interest in conducting legitimate police activities safely and free from interference. [United States v Howard, 729 F3d 655, 659 (CA 7, 2013).]See also M United States v Lewis, 764 F3d 1298, 1306 (CA 11, 2012) ("[F]or 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.").
Officer Kelsey testified at the motion hearing that the vice unit which, after receiving complaints about the operation of the establishment, conducted the investigation at issue. As a routine part of this type of operation, the vice unit regularly detains security guards for officer safety. He explained that the specific reason for doing so is that the undercover officers who attempt to purchase alcohol at unlicensed liquor establishments necessarily must possess service weapons when doing so. However, the officer testified, security guards at such establishments do not allow customers to enter while in possession of firearms. The obvious implication of his testimony, in my view, is that it is dangerous for undercover officers to attempt to purchase alcohol at an unlicensed liquor establishment without the protection of their service weapons. Because the Fourth Amendment permits police officers to briefly detain individuals in the absence of individualized reasonable suspicion to safely conduct an investigation, Howard, 729 F3d at 659, I would conclude that the officers in this case were permitted to briefly detain defendants so the undercover officers could safely conduct their investigation into the activities of the unlicensed liquor establishment.
Having concluded that a brief detention of defendants is consistent with the dictates of the Fourth Amendment, I would further conclude that the Terry frisks also were consistent with the Fourth Amendment as there was reasonable suspicion for the police officers to believe that defendants were "armed and dangerous." See Terry, 392 US at 27. It strikes me as elementary that many security guards in the City of Detroit—whether at a store, a bank, or an unlicensed liquor establishment—may be armed with some type of weapon. It also strikes me as elementary that an unlicensed liquor establishment might be the site of heightened criminal activity or potential danger. Indeed, Officer Kelsey testified at the hearing that such investigations are typically performed relatively early in the night "[b]efore a crowd gathers, because we are, like, short handed. And before it gets out of control, we go in early[.]" An armed security guard at such an establishment that has a known propensity to become "out of control" may very well pose a danger to investigating officers. These facts, taken together, established reasonable suspicion that defendants possibly were armed and could pose a danger, thus justifying the Terry frisks.
Of course, Terry only requires that the individual be "armed," not specifically armed with a firearm. As such, security guards often may carry other weapons such as pepper spray or stun guns.
I acknowledge that Michigan courts follow a peculiar rule under which an appellate court's review of a trial court's decision on a motion to suppress is limited to the evidence introduced at the motion hearing. See People v Hammerlund, 504 Mich 442, 450; 939 NW2d 129 (2019). However, as the prosecution asserts on appeal "for purposes of preservation," this rule is seemingly contrary to the general rule applied by the federal courts. See, e.g., United States v Newsome, 475 F3d 1221, 1224 (CA 11, 2007). If this Court was permitted to consider the trial testimony, it is worth noting that the police officers testified that security guards at such establishments are known to be armed.
Under the majority's decision, "the mere act of working security at an afterhours club being investigated for the possibility that it was selling liquor without a license" does not justify the type of detentions that occurred here. But if police officers cannot detain security guards in cases such as here, there seem to be only two realistic outcomes—the officers will be required to place themselves in greater danger by entering the unlicensed liquor establishment without service weapons, or the officers simply will be unable to conduct a proper investigation by attempting to purchase alcohol once inside such an establishment. In my judgment, the Fourth Amendment does not compel such a dilemma.
Contrary to the majority's suggestion, this case is not about whether the police officers possessed a warrant to approach the security guards or enter the public establishment. They had the right to do so in the absence of a warrant. See Maryland v Macon, 472 US 463, 469; 105 S Ct 2778; 86 L Ed 2d 370 (1985) ("[R]espondent did not have any reasonable expectation of privacy in areas of the store where the public was invited to enter and to transact business."). Rather, this case is about whether the police officers could engage in routine precautionary conduct to investigate an establishment that was the subject of several complaints of unlawful conduct and was liable to become "out of control."
To summarize, the police officers lawfully detained defendants for officer safety in the absence of individualized reasonable suspicion, and having done so, the officers possessed reasonable suspicion to conduct Terry frisks. Therefore, no constitutional violation occurred. I would affirm.
The majority concludes that the evidence at issue must be suppressed under Sibron v New York, 392 US 40; 88 S Ct 1889; 20 L Ed 2d 917 (1968), and Ybarra v Illinois, 444 US 85; 100 S Ct 338; 62 L Ed 2d 238 (1979). I respectfully disagree. Sibron stands for the proposition that a Terry frisk is not warranted when the police officer's only basis for believing that an individual is armed and dangerous is his or her "mere act of talking with a number of known narcotics addicts over an eight-hour period[.]" Sibron, 392 US at 64. Ybarra stands for the proposition that a Terry frisk is not warranted "on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place." Ybarra, 444 US at 94. Here, the record shows that the police officers possessed far more reason to believe that defendants were armed and dangerous than the officers possessed in Sibron and Ybarra.
In affirming, I would also reject defendant McCloud's second argument concerning the applicability of the exemption set forth in MCL 750.227(2). --------
/s/ Michael J. Riordan