People v. Payton , 166 Mich. App. 428 ( 1988 )

166 Mich. App. 428 (1988) 421 N.W.2d 191

PEOPLE
v.
PAYTON

Docket No. 97989.

Michigan Court of Appeals.

Decided February 16, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division Research, Training and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the people.

Defenders' Office — Legal Aid & Defender Association of Detroit (by Sherry A. McCameron), for defendant on appeal.

Before: D.F. WALSH, P.J., and SHEPHERD and A.T. DAVIS, JR.,^[*] JJ.

SHEPHERD, J.

The prosecutor appeals from a Detroit Recorder's Court order granting defendant's motion to suppress evidence and dismissing a charge of carrying a concealed weapon against defendant.

Following defendant's preliminary examination, he was bound over on a charge of carrying a concealed weapon. Defense counsel subsequently filed a motion to suppress the evidence or, in the alternative, for an evidentiary hearing. The thrust of defendant's motion was that the police lacked either probable cause or reasonable suspicion to stop and frisk him.

At the evidentiary hearing, Detroit police officer Douglas Weems testified that he was on routine patrol at approximately 1:00 A.M. on October 26, 1986, when he heard gunshots fired in the area of Trowbridge and Brush in the City of Detroit. Officer Weems and his partner investigated the area with a search light and observed a man, whom he later identified as defendant, duck between two buildings. There were other people in the area. A moment later officer Weems observed a black car "take off" with its lights off. Officer Weems and his partner followed the car but lost sight of it. They again saw the car and, in the process of following the car, observed the same man they previously had seen disappear between the two buildings standing at Trowbridge and Brush. The officers stopped defendant and patted him down. The pat-down revealed a loaded gun.

The trial court granted defendant's motion to suppress evidence of the weapon. The trial court concluded that the officers had no probable cause to stop the defendant.

First, we note that this Court will not disturb a trial court's ruling at a suppression hearing unless it is clearly erroneous. People v Burrell, 417 Mich. 439, 448; 339 NW2d 403 (1983).

The Fourth Amendment to the United States Constitution proscribes seizures which are not justified by probable cause. Dunaway v New York, 442 U.S. 200; 99 S. Ct. 2248; 60 L. Ed. 2d 824 (1979). In Terry v Ohio, 392 U.S. 1; 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968), the Supreme Court noted that whenever a police officer accosts an individual and restrains his freedom to walk away he has "seized" that person. Id. However, not all seizures of a person must be sustained by probable cause. Terry created a limited exception to the requirement of probable cause in a "seizure" of a person if the police officer has a reasonable, articulable suspicion that the person has committed or is about to commit a crime. See People v Sovoda, 155 Mich. App. 735, 738-739; 400 NW2d 702 (1986), lv den 428 Mich. 898 (1987). Once an officer has reasonably concluded that criminal activity may be afoot he may conduct a pat-down search if he reasonably concludes that the person with whom he is dealing may be armed and dangerous. People v Parham, 147 Mich. App. 358, 360; 382 NW2d 786 (1985), lv den 425 Mich. 862 (1986), cert den ___ US ___; 107 S. Ct. 432; 93 L. Ed. 2d 382 (1986). Of course, flight from the police alone does not provide the reasonable suspicion necessary to justify a Terry-type investigation. People v Shabaz, 424 Mich. 42, 62; 378 NW2d 451 (1985).

In this case, the police officers, on routine patrol, heard gunshots in the immediate vicinity. The officers' search of the area revealed defendant, who immediately ducked between two buildings. A moment later they observed a black car leave the area with its headlights off. Although the car and defendant apparently had no relationship, defendant was spotted once again, approximately one minute later, in the immediate vicinity of the shots. Having heard the gunshots, and seen several individuals fleeing the area, we believe the officers had reasonable grounds to suspect criminal activity was afoot. Defendant was seen fleeing the immediate vicinity of the shots by the police officers. We believe the officers were justified in stopping defendant, and, having heard shots, it was reasonable to conclude that the person with whom they were dealing may have been armed and dangerous. We distinguish this case from those in which a defendant flees upon seeing a police car and the police stop and frisk the individual for no other reason than his flight. See People v Chesternut, 157 Mich. App. 181, 183-184; 403 NW2d 74 (1986), lv den 428 Mich. 874 (1987). In this case, the police could reasonably conclude that criminal activity was afoot and that the person with whom they were dealing may have been armed and dangerous. Parham, 360. We further note that the standard applied by the trial court was clearly erroneous in that the police officers do not need probable cause under the stop and frisk exception established by Terry. It is sufficient if they have a reasonable, articulable suspicion.

Reversed and remanded.

A.T. DAVIS, JR., concurred.

D.F. WALSH, P.J. (dissenting).

I must respectfully dissent. The trial judge had the advantage of hearing the testimony of the arresting officers. He was obviously unpersuaded after listening to this testimony and observing the officer that the officers had a sufficient basis for making a determination that the man they stopped was the same man they saw in the area where the shots were fired. If the basis for that essential determination is inadequate, as the trial court apparently concluded, then the foundation for the Terry stop collapses.

I would affirm.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.