People of Michigan v. Terrence Charles Hicks ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 4, 2023
Plaintiff-Appellant,
v No. 361204
Wayne Circuit Court
TERRENCE CHARLES HICKS, LC No. 21-005542-01-FH
Defendant-Appellee.
Before: RICK, P.J., and M. J. KELLY and RIORDAN, JJ.
PER CURIAM.
The prosecution appeals as of right the circuit court’s order of dismissal without prejudice
of the charge of carrying a concealed weapon, MCL 750.227, following its decision to grant
defendant’s motion to suppress evidence on the basis of a Fourth Amendment violation. On
appeal, the prosecution argues that the circuit court erred because the police did not violate the
Fourth Amendment when observing and seizing the concealed handgun at issue. We agree.
Therefore, we reverse the circuit court and remand to that court for further proceedings.
I. FACTS
On October 13, 2020, several Detroit police officers were driving through a residential area
when they observed a group of people drinking alcohol in the street near a parked minivan. The
group was blocking the police vehicles’ path, but they started to disperse once the police vehicles
were in sight. Some of the group walked past the minivan, which appeared to be occupied by
multiple individuals. Because drinking alcohol in the street is a violation of state law and city
ordinance,1 the police quickly exited their vehicles to investigate. From an officer’s video
recording of the incident, officers exited their vehicle, parked to the rear and street side of the
minivan, and approached the group by traversing on foot by the driver’s side and passenger’s side
of the parked minivan.
1
See MCL 436.1915(1) and Detroit Ordinance, § 31-5-2.
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Detroit Police Officer Amen-Ra, one of the officers involved in this incident, was the only
officer to testify at the preliminary examination. He testified that he immediately exited his “raid
van” once his “crew” observed the apparent alcohol consumption and approached the minivan to
investigate. He explained that he observed an individual, later identified as defendant, “sitting on
the rear floorboard and the backdoor was open of the minivan.”2 At that time, Officer Amen-Ra
observed a “pistol clip” which appeared to be “inside the waistband” of defendant. Officer Amen-
Ra stated that the “pistol clip” he observed was not a magazine, but instead it was a clip for a pistol
holster. Officer Rodriguez, who also was investigating the passenger side of the minivan with
Officer Amen-Ra, lifted defendant’s shirt and recovered a loaded handgun from the defendant.
The defendant admitted to Officer Amen-Ra that he did not have a concealed pistol license. After
hearing this testimony, the district court bound defendant over to the circuit court on the charge of
carrying a concealed weapon.
Defendant moved to suppress the seized concealed handgun in the circuit court, arguing
that the police officers “did not have a reasonable, articulable suspicion that [he] was engaged in
criminal activity” when he was sitting in the minivan, and consequently, the concealed handgun
was the fruit of an unlawful seizure. In other words, defendant argued that the testimony at the
preliminary examination and the police body-camera videos of the incident did not show that he
was openly consuming alcohol at the time, so the police officers had no legal justification for
quickly approaching the minivan and seizing him, which led to the discovery of the concealed
handgun.
The circuit court, after reviewing the preliminary-examination testimony and police body-
camera videos, granted defendant’s motion to suppress the concealed handgun, reasoning from the
bench as follows:
I understand that once they got to the van there was something that was seen, but
the Court doesn’t have an issue with that. And I saw the video and they claimed
that when they got to the van, they saw the clip. The problem I have is how do you
get to the van. . . . The crew investigated the group in the street and [Officer Amen-
Ra] just went to the van and that’s where they observed this clip. So, the question
was asked on Page 42. Did you see Hicks with any alcohol, no, I didn’t. . . . I did
not see him consuming any alcohol or an open container in his hand . . . .
***
And nobody testified that Mr. Hicks was a part of that group and went to the van
thus, would necessitate a reason to go to the van, reasonable suspicion. If he’s in
the group, he’s got open intoxicants the cops will come out and investigate because
they shouldn’t have open intoxicants which is, I believe a ticketible [sic] offense
and they got the van because they were—they were investigating individuals in the
street who were drinking. But the testimony on the record was that they didn’t even
2
Defendant was on the passenger’s side of the minivan.
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see Mr. Hicks as a part of that crowd and he specifically said he could have been
seated there already. So, what would be the reason that they went to the van at all.
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 circuit court accordingly dismissed the case, and the prosecution now appeals.
II. DISCUSSION
“We review for clear error a trial court’s findings of fact in a suppression hearing, but we
review de novo its ultimate decision on a motion to suppress.” People v Hyde, 285 Mich App 428,
436; 775 NW2d 833 (2009). We also review de novo whether the Fourth Amendment was
violated. Id. Clear error occurs when this Court is left “with a definite and firm conviction that
the trial court made a mistake.” People v Steele, 292 Mich App 308, 313; 806 NW2d 753 (2011).
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated . . . .” US Const, Am IX. See also Const 1963, art 1, § 11. When an individual’s Fourth
Amendment rights have been violated as a result of an unreasonable search or seizure, an
appropriate remedy is to suppress the evidence obtained as a result of that violation. See Terry v
Ohio, 392 US 1, 12; 88 S Ct 1868; 20 L Ed 2d 889 (1968). “A search for Fourth Amendment
purposes occurs only when an expectation of privacy that society is prepared to consider
reasonable is infringed.” People v Custer, 465 Mich 319, 333; 630 NW2d 870 (2001) (quotation
marks and citation omitted). “If the inspection by police does not intrude upon a legitimate
expectation of privacy, there is no ‘search’ subject to the Warrant Clause.” Id. (quotation marks
and citation omitted).3
“What a person knowingly exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection.” Katz v United States, 389 US 347, 351; 88 S Ct 507;
19 L Ed 2d 576 (1967). “[T]he mere fact that an individual has taken measures to restrict some
views of his activities [does not] preclude an officer’s observations from a public vantage point
3
“A ‘seizure’ occurs within the meaning of the Fourth Amendment if, in view of all the
circumstances surrounding an encounter with the police, a reasonable person would have believed
that the person was not free to leave.” People v Shankle, 227 Mich App 690, 693; 577 NW2d 471(1998).
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where he has a right to be and which renders the activities clearly visible.” California v Ciraolo,
476 US 207, 213; 106 S Ct 1809; 90 L Ed 2d 210 (1986). In other words, police officers are not
required “to shield their eyes . . . on public thoroughfares.” Id. Further, police officers are even
permitted “to approach the home by the front path, knock promptly, [and] wait briefly to be
received” without committing a search for the purposes of the Fourth Amendment. See Florida v
Jardines, 569 US 1, 9; 133 S Ct 1409; 185 L Ed 2d 495 (2013).
In the matter before us, the police officers, including Officers Amen-Ra and Rodriguez,
had a right to be on the public streets in Detroit—including the residential street on which
defendant was arrested. The police officers were investigating a group of people openly
consuming alcohol on a residential street in violation of MCL 436.1915(1) and Detroit Ordinance,
§ 31-5-2. Officers Rodriguez and Amen-Ra, and other 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. Moreover,
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.4 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 his waistband, which suggested to them that the
defendant may also be in possession of a firearm.
The circuit court also seemingly found as fact that the police officers viewed the pistol
holster while outside the minivan, stating that “I understand that once they got to the van there was
something that was seen, but the Court doesn’t have an issue with that.”5 This viewing by the
police officer justified a search of defendant for officer and public safety, a well-recognized
exception to the warrant requirement. See Terry, 392 US at 27 (“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.”);
id. at 29 (“The sole justification of the search . . . is the protection of the police officer and others
nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover
guns, knives, clubs, or other hidden instruments for the assault of the police officer.”). This is
particularly true in light of the fact that there was surrounding suspected criminal activity in the
street. See United States v Lewis, 674 F3d 1298, 1308 (CA 11, 2012) (“An officer may control
persons . . . if they are near a street encounter with persons reasonably suspected of criminal
activity.”) (cleaned up). Further, upon seeing the gun clip, the officers also were warranted in
suspecting that “criminal activity may be afoot,” and the defendant confirmed this when he stated
4
Although the conduct of the police officers in quickly approaching the minivan is obviously
explained by the fact that they observed a nearby group of people consuming alcohol in public,
the officers did not need to witness any violation of the law to permissibly be in a position to view
what defendant was exposing to the public.
5
Later, the circuit court added that “I understand that once they get to the van, yes, they see
something. That’s not my problem . . . .” However, we acknowledge that the circuit court also
stated after deciding the motion that “I don’t even think it’s on the record that it was in plain view,”
apparently referring to the pistol holster which could not be seen through the limited view and
angle of the recorded video.
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he did not have a permit to possess a concealed weapon. See Terry, 392 US at 30. For these two
reasons, the seizure and search of defendant, which led to discovery of the concealed handgun,
was justified and was not illegal.
In ruling otherwise, the circuit court reasoned that the police officers did not have
“reasonable suspicion” to “run to [the minivan] and then check somebody out who does not even
apply to the crew.” We agree with the circuit court that neither the testimony at the preliminary
examination nor the video of the incident showed that defendant was one of the individuals
drinking alcohol in the street, and as a result, the police officers did not have reasonable suspicion
to justify searching or seizing him based upon that violation. But, that is not the scenario before
us. The police did not view the pistol holster as a result of investigating those originally seen
consuming alcohol on the street. Rather, after exiting their vehicle and while on their way to
investigate, the police officers, on a residential street, where they had a right to be, as did any
person, they observed what defendant was exposing to the world—a pistol holster inside his
waistband. This observation did not implicate the Fourth Amendment because it was not a
“search,” nor was the defendant restrained at the time of the observation. Based upon this plain-
view observation, the resulting search of defendant by lifting his shirt, which led to discovery of
the concealed handgun itself, was justified under Terry. Accordingly, there was no Fourth
Amendment violation, and the concealed handgun should not have been suppressed and the case
should not have been dismissed.6
III. CONCLUSION
The police did not commit a “search” of defendant for the purposes of the Fourth
Amendment when they viewed the pistol holster from a public vantage point. As a result,
discovery of the pistol holster, which immediately led to discovery of the concealed handgun itself,
did not violate the Fourth Amendment.
6
On appeal, defendant suggests that the concealed handgun was obtained as the fruit of an
unlawful seizure. The essence of his argument in this regard is that he was “seized” for the
purposes of the Fourth Amendment when the police officers quickly surrounded the minivan under
circumstances that did not allow him to voluntarily leave the vicinity, see generally, Florida v
Bostick, 501 US 429; 111 S Ct 2382; 115 L Ed 2d 389 (1991), and the concealed handgun would
not have been obtained by the police without this unlawful seizure. We disagree with this framing
of the issue.
Assuming for the sake of argument that defendant was “seized” by the police presence, the
pistol holster was simultaneously observed while the police were lawfully in a public place and
viewing what defendant exposed to the public. In other words, if only one police officer
approached the minivan under circumstances that did not indicate a “seizure” under Bostick, the
pistol holster still would have been observed by the police. This supports our conclusion that the
pistol holster was viewed not as a result of any seizure, but instead by a visual observation from a
public vantage point.
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We therefore reverse the circuit court and remand to that court for further proceedings
consistent with our opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Michael J. Riordan
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