Opinion
SC: 163060 COA: 352158 SC: 163061 COA: 352280
08-12-2022
PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Marcus Martell MCCLOUD, Defendant-Appellee. People of the State of Michigan, Plaintiff-Appellant, v. Bruce Cliffin Edwards, Defendant-Appellee.
Order
On order of the Court, the application for leave to appeal the April 22, 2021 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Viviano, J. (dissenting).
The Court today forgoes an opportunity to examine an interesting and legally significant question: whether police may briefly detain and pat down a third party to facilitate an undercover operation against other individuals or entities. Because I believe that the Court should further explore this question by granting leave to appeal, I dissent from the Court's order denying leave to appeal.
In this case, the Detroit Police Department received several complaints about an after-hours club selling liquor without a license. The police verified that the club did not have a liquor license and planned an undercover operation to determine whether the club was indeed selling liquor. As part of the operation, two officers were assigned to briefly detain the club's security personnel so that undercover officers could enter and attempt to buy alcohol. Department policy required undercover officers to enter with their weapons for their own safety, and club security would not have allowed them to do this. Accordingly, on the night of the operation, the two officers approached the club as decoys before the undercover officers. The first officer entered the building and, after defendant Bruce C. Edwards identified himself as club security, the officer detained Edwards and escorted him outside the club before patting him down and finding a handgun. Then, a second officer entered and found defendant Marcus McCloud, another security guard. The second officer similarly escorted McCloud outside, patted him down, and discovered a firearm. Defendants moved to suppress the evidence obtained from the detention, arguing that the police did not have probable cause or reasonable suspicion to search them without a warrant. The trial court denied the motions. In a subsequent bench trial, both defendants were found guilty of carrying a concealed weapon without a license. In an unpublished per curiam opinion, the Court of Appeals reversed the convictions and remanded for further proceedings. Judge RIORDAN dissented, pointing out that a police officer may detain an individual briefly and conduct a pat-down search for officer safety, even without individualized suspicion of wrongdoing. The prosecutor now seeks leave to appeal in this Court.
At issue is whether the officers’ actions violated the Fourth Amendment's prohibition on unreasonable searches and seizures. See Terry v Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Police officers may make a limited search of a person if they possess "reasonable suspicion that criminal activity may be afoot." People v Oliver , 464 Mich. 184, 193, 627 N.W.2d 297 (2001). In particular, a police officer "is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." Terry , 392 U.S. at 30, 88 S.Ct. 1868. "Such a search," the Court held, "is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken." Id. at 31, 88 S.Ct. 1868. In these circumstances, "the intrusion on the citizen's privacy ‘[is] so much less severe’ than that involved in a traditional arrest that ‘the opposing interests in crime prevention and detection and in the police officer's safety’ could support the seizure as reasonable." Michigan v Summers , 452 U.S. 692, 697-698, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (citation omitted).
In the present matter, defendants argue, and the Court of Appeals majority agreed, that the officers did not have an individualized suspicion that defendants were armed or engaged in criminal activity. But, as Judge RIORDAN noted in his dissenting opinion, several United States Supreme Court cases indicate that the police may order brief stops and pat-downs "for the purposes of officer safety even in the absence of any individualized reasonable suspicion...." People v McCloud , unpublished per curiam opinion of the Court of Appeals, issued April 22, 2021 (Docket Nos. 352158 and 352280) ( RIORDAN , J., dissenting), p. 2, 2021 WL 1596498, citing Maryland v Wilson , 519 U.S. 408, 413, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). The United States Supreme Court has made clear that individualized suspicion is not an absolute prerequisite for every constitutional search or seizure:
The touchstone of the Fourth Amendment is reasonableness, not individualized suspicion. Thus, while this Court's jurisprudence has often recognized that "to accommodate public and private interests some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure," United States v. Martinez-Fuerte , 428 U.S. 543, 560 [96 S.Ct. 3074, 49 L.Ed.2d 1116] (1976), we have also recognized that the "Fourth Amendment imposes no irreducible requirement of such suspicion," id. , at 561 . Therefore, although this Court has only sanctioned suspicionless searches in limited circumstances, namely, programmatic and special needs searches, we have never held that these are the only limited circumstances in which searches absent individualized suspicion could be "reasonable" under the Fourth Amendment. [
Samson v California , 547 U.S. 843, 855 n 4, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) ].
In the typical cases dispensing with the individualized-suspicion requirement, a valid search pursuant to a warrant is being undertaken, or a valid investigatory stop based on reasonable suspicion is made. During that search or stop, the police conduct a pat-down or detention of a third party (i.e., someone who is not the target of the investigation or stop) without reasonable suspicion that the third party has engaged in a crime. For example, as Judge RIORDAN noted, two circuits of the United States Court of Appeals have held that such stops are permissible "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 F.3d 655, 659 (CA 7, 2013) ; see also United States v Lewis , 674 F.3d 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."). In Howard , the officer had probable cause to arrest an individual whom the officer believed was armed and dangerous. Howard , 729 F.3d at 657. The court determined that the officer properly detained the defendant, a third party who exited the same vehicle as the target suspect. Id. In Lewis , the officers approached four men in a high-crime area and asked them if they were carrying weapons. Lewis , 674 F.3d at 1300-1301. Two of them responded in the affirmative, giving the officers reasonable suspicion to detain them. Id. at 1301, 1305. The court concluded that the officers were justified on the basis of officer safety in also holding two other men, including the defendant, who did not state that they were carrying weapons, even absent any particularized reasonable suspicion that they also carried weapons. Id.
The United States Supreme Court has similarly held that an officer making a legitimate traffic stop may briefly detain passengers and order them out of the car, Maryland , 519 U.S. at 410, 117 S.Ct. 882, and that when officers have a search warrant for a home, the police may detain the occupant while the home is being searched, Michigan v Summers , 452 U.S. 692, 704-705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). And the Idaho Supreme Court recently held that the "suspicionless detention of a third party," a woman who was present during a routine parole search of a parolee's residence, as " ‘[d]epartment procedure to ensure officer safety,’ " was constitutional. State v Phipps , 166 Idaho 1, 454 P.3d 1084, 1086-1087 (2019).
The instant case presents the question of whether police officers conducting an undercover operation may briefly detain and pat down third parties without individualized suspicion. As a general matter, it does not appear that reasonable suspicion or probable cause is a requirement for undercover operations. Therefore, the Court of Appeals majority raised a valid concern about police officers being able to stop and frisk any third party without a warrant or reasonable suspicion in the name of safety just because an undercover operation is underway. But it seems unlikely that a court would countenance such an intrusion in the absence of at least reasonable suspicion. In any event, I believe a strong argument could be made that the police here did have a reasonable suspicion that criminal activity was afoot. Terry , 392 U.S. at 30, 88 S.Ct. 1868. "An anonymous tip, when sufficiently corroborated, can exhibit sufficient indicia of reliability to justify a Terry stop." People v Pagano , 507 Mich. 26, 33, 967 N.W.2d 590 (2021). Here, the record indicates that officers in the vice unit received multiple complaints from a neighboring precinct that the club was selling liquor without a license, and the department verified that the club did not have a liquor license. The pat-down was conducted for the safety of the undercover officers. And, arguably, it was reasonable to suspect that the defendant guards would be armed given their duties and responsibilities.
See generally Ross, Undercover Policing and the Varieties of Regulatory Approaches in the United States , 62 Am J Comp L 673, 675 (2014) (discussing caselaw and noting that "undercover operations in the United States are not regulated by statute and may be initiated without obtaining a warrant or establishing probable cause or even reasonable suspicion that a crime is being committed"); see also People v Jamieson , 436 Mich. 61, 90 n 22, 461 N.W.2d 884 (1990) ("This is not to suggest that the state must have reasonable suspicion or probable cause before an undercover investigation is undertaken"); United States v Kelly , 228 US App DC 55, 66 n 58, 707 F.2d 1460 (1983) (noting United States Circuit Courts of Appeals that have "rejected the argument that the government must have reasonable suspicion of wrongdoing before proceeding with an undercover operation"); cf. Jacobson v United States , 503 U.S. 540, 557, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992) (O'Connor, J., dissenting) (noting that the Court had never before required reasonable suspicion before the police could begin an investigation and that the majority opinion should not be misread to require such suspicion).
For these reasons, the cases cited by the Court of Appeals majority appear to be distinguishable. The Court of Appeals majority first cited Sibron v New York , 392 US 40, 64, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), in which the United States Supreme Court held that a suspect merely speaking to known narcotics addicts over several hours did not give rise to an officer's subsequent Terry stop and pat-down given that the officer did not have "fear of life or limb" or other grounds to search the defendant for weapons. The Court of Appeals majority found that like in Sibron , the mere act of working security at an after-hours club under investigation did not provide reasonable suspicion for the detention and pat-down. But unlike the patrolman in Sibron , the officers in this case appear to have had reasonable suspicion of criminal activity by the club, and surely it was reasonable to believe that security guards at an after-hours club would be armed. The Court of Appeals majority also cited Ybarra v Illinois , 444 U.S. 85, 92-94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), in which the United States Supreme Court held that the police could not pat down a patron of a bar that the officers had a warrant to search where there was no suspicion that the patron was involved in the criminal activity or armed and dangerous. The Court of Appeals concluded that in this case there was no indication that defendants possessed weapons; "[t]hey were simply working at a place being investigated for selling liquor without a license." McCloud (opinion of the Court), unpub. op. at 5. But unlike the tavern patron in Ybarra , for whom "the police had no reason to believe he had any special connection with the premises, and the police had no other basis for suspecting that he was armed or in possession of contraband," Summers , 452 U.S. at 695 n 4, 101 S.Ct. 2587, the security guards here arguably had a connection to the premises through their employment, and the officers surely could reasonably suspect they were armed given their duties.
This case provides an opportunity to address this jurisprudentially significant question. It seems unlikely that we would hold that a brief detention and pat-down of a third party to facilitate an undercover operation is always prohibited. For example, we might hold that such activities are permitted so long as there was reasonable suspicion for the undercover operation itself. It might also be relevant whether the brief detention and pat-down was necessary to carry out the undercover operation or if other means could have been employed. Resolving this question would provide guidance to law enforcement officers engaged in difficult and dangerous undercover work. I would grant leave in this case to provide that guidance. The Court declines to do so, and therefore I dissent.