People of Michigan v. Anthony Duane Taylor

Opinion

Michigan Supreme Court

Lansing, Michigan 48909

____________________________________________________________________________________________

C hief Just ice Justices Maura D . Corrigan Michael F. Cavanagh

Opinion Elizabeth A. Weaver

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JUNE 12, 2001

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 112341

JOEY DUANE OLIVER,

Defendant-Appellant.

____________________________________

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 115064

ANTHONY DUANE TAYLOR,

Defendant-Appellant.

____________________________________

BEFORE THE ENTIRE BENCH

TAYLOR, J.

These consolidated cases arise from the same bank robbery

and ensuing police stop of a car in the city of Jackson. In

each case, the defendant argues that incriminating evidence

resulting from the stop of the car should have been suppressed

on the basis of the Fourth Amendment exclusionary rule. We

conclude that the stop of the car was supported by reasonable

suspicion and, thus, did not violate the Fourth Amendment.

Accordingly, we agree with the refusal of the lower courts to

suppress the evidence at issue.

I. FACTS AND PROCEDURAL HISTORY

Shortly before noon on December 1, 1994, an armed robbery

was committed at a Republic Bank branch in Jackson. It was

reported that two black males were the perpetrators and that

they left the bank on foot. Pivotal to the issue at hand is

the conduct of Jackson County Deputy Sheriff Roger Elder that

led to his stopping of the motor vehicle containing both the

defendants and two other passengers. Deputy Elder had been a

sheriff’s deputy for over sixteen years at the time of the

suppression hearing in Oliver. Notably, the great bulk of

Deputy Elder’s service with the sheriff’s department was with

the road patrol division. Before that, he was a township

police officer for about 2½ to three years. In the course of

his career as a police officer, Deputy Elder was directly

involved in investigating about twenty bank robberies.

Deputy Elder testified that while he was in his patrol

car shortly before noon on the date of the robbery he (along

3

with other police officers in the area) heard a general

dispatch that an armed robbery had just occurred at the

Republic Bank at the corner of North and Wisner Streets in

Jackson. This dispatch advised that the suspects were two

black males last seen heading northbound on foot from the

bank. When he heard the dispatch, Deputy Elder, who was north

of the bank, headed south to the general area of the bank to

look for suspects. Deputy Elder explained at the suppression

hearing in Oliver that he was not looking for just two

suspects,

[b]ecause it’s my experience in the years I’ve been a police officer, that there is almost always a getaway car in a bank robbery, and if there’s a getaway car, there’s at least one more person with it.[1]

In the course of driving toward the area of the armed

robbery, Deputy Elder stopped at a New York Carpet World store

where he encountered two store employees standing outside

smoking cigarettes. This store was located north of the

Republic Bank. Deputy Elder asked them if they had seen any

black males running in the area, and they replied that they

1 Deputy Elder likewise testified at the suppression hearing in Taylor that he was looking for at least three suspects:

Well, it’s been my experience in the past that there is usually someone nearby, in a robbery attempt, with a getaway vehicle, so I would look for at least three people.

4

had been outside for about ten minutes and had not seen anyone

except children across the street at a school.

He next went to the Westbay Apartments complex because he

thought that the apartment complex would have been an

excellent place for someone on foot to run and a good place to

hide a getaway vehicle. The Westbay Apartments were located

on the corner of North and Brown Streets, which was the first

major intersection along North Street to the west of the

Republic Bank, and this area was secluded. The Westbay

Apartments complex was within a quarter mile of the Republic

Bank.

When Deputy Elder was turning into an entrance to the

Westbay Apartments complex, he saw a green Mercedes with four

black male occupants heading out of the driveway. Deputy

Elder testified at the suppression hearing in Oliver that

“[a]s I was passing by them [the occupants of the Mercedes],

I turned and looked over at them, and all four subjects looked

directly ahead. They would not, any of them, look over at

me.” Deputy Elder said that he found this “very unusual”

because, on the basis of his nineteen years of experience as

a police officer, “[w]ell basically, because people always

look at the cops. When you drive by, they always look over

5

and see who’s in the car or—they just always look at you.”2

Deputy Elder testified that he saw the Mercedes within ten or

fifteen minutes of the dispatch regarding the bank robbery and

that he passed within six to eight feet of the Mercedes when

they passed by each other at the entrance to the apartment

complex.

After this, apparently concluding that these individuals

were possibly implicated in the robbery, Deputy Elder

requested backup over his police radio because he had spotted

a “possible suspect vehicle.” Deputy Elder, driving his

patrol car, then followed the Mercedes as it proceeded west on

North Street, then south on Brown Street, then east on Ganson

Street, and finally south on Wisner Street. In driving this

route, the Mercedes went through the intersection of Wisner

and Ganson Streets. It would have been a more direct route to

that intersection from the Westbay Apartments for the Mercedes

to have simply gone east on North Street and then turned south

on Wisner Street. Notably, this more direct route would have

2 Deputy Elder similarly testified at the suppression hearing in Taylor that no occupant of the Mercedes looked over at his patrol car. Deputy Elder explained that he found this significant because in his experience:

Inevitably, when a patrol car drives by somebody, they [sic] always look over at you.

Somebody in the vehicle will look at the patrol car.

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taken the Mercedes by the location of the Republic Bank that

was robbed in this case. When backup patrol cars arrived,

Deputy Elder stopped the Mercedes on Wisner Street.

Eventually, when another sheriff’s deputy patted down

Casual Banks, one of the passengers in the Mercedes, he found

a large amount of money, including a bundle of money with a

bank wrapper on it, and a Michigan identification for

defendant Oliver. Later at the police station, a wad of money

was found on defendant Oliver, who was a passenger in the

Mercedes. Defendant Taylor was the driver and owner of the

Mercedes. A search of the trunk of the Mercedes at the police

station located a bag containing money and a .32 caliber

automatic pistol. Also, defendant Taylor eventually made

statements to the police that were later used against him.

Notably, at each suppression hearing, the trial court

credited Deputy Elder’s testimony about the basic facts

surrounding the traffic stop. Defendants do not challenge

that determination, but rather accept the basic facts related

by Deputy Elder, while arguing that he nevertheless did not

have legal justification consistent with the Fourth Amendment

to effect the traffic stop.

In each of these consolidated cases, the circuit court

denied the respective defendant’s motions to suppress the

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incriminating evidence discussed above. The circuit court

held, contrary to the defense position, that the traffic stop

was supported by reasonable suspicion.

Thereafter, defendant Oliver entered a conditional guilty

plea to conspiracy to commit armed robbery, MCL 750.157a,

armed robbery, MCL 750.529, and possession of a firearm during

the commission of a felony, MCL 750.227b. The condition was

that defendant Oliver be able to appeal the trial court’s

ruling at the suppression hearing in his case. At a jury

trial, defendant Taylor was found guilty of the same crimes to

which defendant Oliver conditionally pleaded guilty.

In Oliver, the Court of Appeals declined to address

whether there was reasonable suspicion to effect the traffic

stop on the basis of its conclusion that defendant Oliver, as

a passenger in the car, did not have “standing to challenge”

admission of the evidence at issue under the Fourth Amendment

exclusionary rule.3 In Taylor, a different panel of the Court

3 In short, the panel in Oliver concluded that defendant

Oliver could not challenge the search of Banks in which incriminating evidence was first found and that, accordingly, he could not challenge the location of other incriminating evidence as a result of the ensuing events. The parties in each case have argued the issue of the scope of the respective defendants’ “standing to challenge,” or in other words the extent to which they may avail themselves of the Fourth Amendment exclusionary rule if there were a violation of the Fourth Amendment. However, in light of our conclusion that the traffic stop was supported by reasonable suspicion (and, (continued...)

8

of Appeals agreed with the trial court’s conclusion that the

stop of the car was a valid traffic stop supported by

reasonable suspicion.

II. ANALYSIS

A trial court’s factual findings at a suppression hearing

will not be reversed unless they are clearly erroneous.

However, as in the present case, the application of

constitutional standards regarding searches and seizures to

essentially uncontested facts is not entitled to this level of

deference. People v LoCicero (After Remand), 453 Mich 496,

500-501; 556 NW2d 498 (1996).

In LoCicero, supra at 501-502, this Court summarized the

requirements for the police to make a valid investigatory stop

based on reasonable suspicion consistently with constitutional

protections:

The brief detention of a person following an investigatory stop is considered a reasonable seizure if the officer has a “reasonably articulable suspicion” that the person is engaging in criminal activity. The reasonableness of an officer’s suspicion is determined case by case on the basis of the totality of all the facts and circumstances. “[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled

3 (...continued)

thus, did not violate the Fourth Amendment), we need not address these “standing to challenge” issues.

9

to draw from the facts in light of his experience.”

Although this Court has indicated that fewer facts are needed to establish reasonable suspicion when a person is in a moving vehicle than in a house, some minimum threshold of reasonable suspicion must be established to justify an investigatory stop whether a person is in a vehicle or on the street. [Citations omitted.]

Further, in determining whether the totality of the

circumstances provide reasonable suspicion to support an

investigatory stop, those circumstances must be viewed “as

understood and interpreted by law enforcement officers, not

legal scholars . . . .” People v Nelson, 443 Mich 626, 632;

505 NW2d 266 (1993). Also, “[c]ommon sense and everyday life

experiences predominate over uncompromising standards.” Id.

at 635-636.

In Terry v Ohio, 392 US 1, 30-31; 88 S Ct 1868; 20 L Ed

2d 889 (1968), the United States Supreme Court held that in

certain circumstances a police officer may “stop” and briefly

detain a person consistently with the Fourth Amendment on the

basis of reasonable suspicion that criminal activity may be

afoot. Notably, “[t]he type of intrusion authorized by

[Terry] has been extended to permit investigative stops under

various circumstances . . . .” Nelson, at 631.

The facts of Terry are instructive. In that case, plain

clothes police detective Martin McFadden was assigned to

10

downtown Cleveland. He observed two men walking a street,

each of them repeatedly stopping to look in the same store

window. Then, they were joined by a third man who talked with

them briefly. Officer McFadden “testified that after

observing [the two men’s] elaborately casual and oft-repeated

reconnaissance of the store window on Huron Road, he suspected

the two men of ‘casing a job, a stick-up,’ and that he

considered it his duty as a police officer to investigate

further.” Terry, supra at 6. Officer McFadden also explained

that he feared the men might have a gun. Officer McFadden

stopped the three men and asked their names. When the men

merely “mumbled something” in response, Officer McFadden

grabbed one of them and patted down the outside of his

clothing, finding a gun. Eventually, he conducted a similar

search of another of the men and found a gun on him as well.

The following discussion in Terry illustrates how factors

that in isolation appear innocent may, in combination, provide

a police officer with reasonable suspicion to justify an

investigative stop:

“[Officer McFadden] had observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation. There is nothing unusual in two men standing together on a street corner, perhaps waiting for someone. Nor is there anything suspicious about people in such circumstances strolling up and down the street,

11

singly or in pairs. Store windows, moreover, are made to be looked in. But the story is quite different where, as here, two men hover about a street corner for an extended period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything; where these men pace alternately along an identical route, pausing to stare in the same store window roughly 24 times;

where each completion of this route is followed immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly; and where the two men finally follow the third and rejoin him a couple of blocks away. It would have been poor police work indeed for an officer of 30 years’ experience in the detection of thievery from stores in this same neighborhood to have failed to

investigate this behavior further.” [Id. at 22­ 23.]

Similarly, in itself, there is certainly nothing

suspicious about four men occupying a car that is leaving an

apartment complex. However, there were other factors in this

case that provided Deputy Elder with reasonable suspicion to

stop the car. First, as Deputy Elder explained in his

testimony at both suppression hearings, he deduced that the

two direct perpetrators of the bank robbery would most likely

have the assistance of a getaway driver. Also, it was

reported that the bank was robbed by two black males. Thus,

the fact that the car had at least three occupants and at

least two black males4 indicated that its occupants were

4 The car was occupied by four black males, but the important point is that it had at least three occupants and at least two of those were black males. If, for example, the car (continued...)

12

consistent with the description of the suspected

perpetrators.5 Of course, that in itself would not provide

the particularized suspicion necessary for a valid

investigatory stop. See LoCicero, supra at 505.6

However, there were other factors that provided a

particularized basis for Deputy Elder to reasonably suspect

that occupants of the Mercedes in which defendants were

present had been involved in the bank robbery. The car was

spotted by Deputy Elder in the Westbay Apartments complex

4 (...continued)

would have had two black male and two white male occupants, we do not see any way that would alter the reasonable suspicion analysis.

5 We note that there are certainly many ways in which it

would be inappropriate for the police to use race as a factor in performing their duties. However, no reasonable person would contend that the police should disregard race where it has been reported by eyewitnesses that a crime has been committed by a person of a particular race or skin color. Simply put, it would have made no sense in the case at hand for the police to have pursued non-black individuals as having been the individuals who actually robbed the bank. As the United States Court of Appeals for the Sixth Circuit observed in United States v Waldron, 206 F3d 597, 604 (CA 6, 2000), “[c]ommon sense dictates that, when determining whom to approach as a suspect of criminal wrongdoing, a police officer may legitimately consider race as a factor if descriptions of the perpetrator known to the officer include race.”

6 Thus, we certainly agree with the dissent that Deputy Elder would not have been “justified in stopping every grouping of black males in the vicinity . . . .” Slip op, p 11. However, as we set forth in this opinion, there were a number of factors that, in combination, provided particularized suspicion for the traffic stop at issue.

13

within fifteen minutes of the report of the bank robbery. The

complex was located to the west of the bank along North Street

and within a quarter mile of the bank. Deputy Elder had first

essentially eliminated the direction north of the bank on the

basis of two men outside the carpet store (which was north of

the bank) telling him that they had not seen anyone go by in

that direction. He testified that he went to the Westbay

Apartments complex because that would have been an excellent

place to hide a getaway vehicle as the apartment complex

provided a secluded area to hide a car in contrast to the

parking lots of businesses near the bank.7 In this regard,

the fact that the car was leaving the apartment complex was

consistent with it being a getaway vehicle that was attempting

to leave the general vicinity of the crime. Thus, the

suspicion of Deputy Elder reasonably focused on the Westbay

Apartments. These deductions by Deputy Elder are particularly

entitled to deference because

[i]n analyzing the totality of the circumstances, the law enforcement officers are permitted, if not

7 At the suppression hearing in Oliver, Deputy Elder explained that a getaway vehicle was more often “in a hidden area somewhere close by” the site of a robbery than in front of the building. In Taylor, Deputy Elder testified at the suppression hearing that his “experience tells me that they wouldn’t have put” the getaway car in the parking lot of a Wendy’s restaurant or laundromat (which were apparently among the businesses near the bank) as opposed to a more secluded place.

14

required, to consider “the modes or patterns of operation of certain kinds of lawbreakers. From [this] data, a trained officer draws inferences and makes deductions–inferences and deductions that might well elude an untrained person.” [Nelson, supra at 636, quoting United States v Cortez, 449 US 411, 418; 101 S Ct 690; 66 L Ed 2d 621 (1981).]

On top of this, the occupants of the Mercedes drew

further suspicion on themselves by their atypical conduct in

each declining to look in the direction of Deputy Elder’s

passing marked patrol car. As the deputy explained, in his

experience as a police officer, this was highly unusual.

There is no basis to conclude that this observation was

inaccurate, and, accordingly, we defer to his substantial

experience as a law enforcement officer. LoCicero, supra at

501-502.

For conduct to support a finding of a reasonable

suspicion, it need be, as we are instructed by the United

States Supreme Court, merely evasive. Indeed, the United

States Supreme Court has quite recently stated that “nervous,

evasive behavior is a pertinent factor in determining

reasonable suspicion.” Illinois v Wardlow, 528 US 119, 124;

120 S Ct 673; 145 L Ed 2d 570 (2000). In Wardlow, the

defendant was standing next to a building holding an opaque

bag in an area of Chicago known for heavy narcotics

15

trafficking. When a four-car caravan of police cars8 entered

the area, the defendant looked in the direction of the

officers and fled, eventually running through a gangway and an

alley. Ultimately, police officers stopped the defendant and

conducted a patdown search for weapons, discovering a gun in

the bag. The United States Supreme Court held that there was

reasonable suspicion to support this investigatory stop in

light of the defendant’s presence in an area of heavy

narcotics trafficking, coupled with his unprovoked flight when

he noticed the police. In making this determination, the

Wardlow Court stated:

In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. [Id. at 124-125.]

Further, in United States v Orozco, 191 F3d 578, 582 (CA 5,

1999), the Fifth Circuit United States Court of Appeals

approved consideration of the “overall behavior of the vehicle

driver,” including “the avoidance of eye contact” as one

factor that might be considered in determining whether there

was reasonable suspicion to support a traffic stop. Likewise,

8 The police cars were involved in an effort to investigate drug transactions in the area.

16

we see no reason that the overall behavior of all occupants of

a car in seeming to avoid looking in the direction of a marked

police car cannot be considered as one factor in support of a

finding of reasonable suspicion. Accordingly, we believe that

Deputy Elder was entitled to rely on his perception that it

was unusual that the occupants of the Mercedes seemed to avoid

looking in his direction. As in Wardlow, we do not have, nor

have we been offered, the benefit of any empirical studies

rebutting Deputy Elder’s experience-based conclusion regarding

how people ordinarily react to marked police cars. Deputy

Elder’s observation that it was suspicious for all four

occupants of a car not to look at his passing police car does

not strike us as unreasonable. Indeed, it may well comport

with “commonsense.” Accordingly, we consider Deputy Elder’s

suspicion aroused by the occupants of the car not looking at

his patrol car to be one factor that is properly considered,

together with other factors such as the secluded nature of the

apartment complex and that the apartments were located within

a quarter mile of the bank, as supporting a finding of

reasonable suspicion in this case.9

9 We note that defendants have cited some pre-Wardlow decisions by panels of the United States Circuit Courts of Appeals indicating that avoidance of eye contact is not properly considered as a factor in support of a finding of reasonable suspicion. However, we regard these pre-Wardlow (continued...)

17

In addition to the foregoing, the route followed by the

Mercedes before the traffic stop provides another factor in

support of the existence of reasonable suspicion. The

Mercedes took a circuitous route to the intersection of Ganson

and Wisner Streets before the traffic stop was actually

effected.10 This is particularly suspicious because it

involved avoiding driving by the bank that had been robbed.

The most direct route to that intersection from the Westbay

9 (...continued)

decisions to be of little value in light of the recognition in Wardlow that evasive conduct can be a factor supporting (or even providing the primary basis for) an investigatory stop. Moreover, we note that there are federal appellate decisions that consider an apparent avoidance of eye contact as one factor in support of a finding of reasonable suspicion. See, e.g., United States v Brown, 188 F3d 860, 864-865 (CA 7, 1999) (considering the defendant’s “unusually nervous demeanor, including his failure to make eye contact” as one of “several distinct articulable bases” for reasonable suspicion); United States v Robinson, 119 F3d 663, 667 (CA 8, 1997) (concluding that “the fact that [the defendant] appeared nervous and the fact that he would not make eye contact” provided “[f]urther justification” for a finding of reasonable suspicion). Of course, none of this is to suggest that the mere fact that a car passes by a patrol car without any of its occupants looking at the patrol car would justify a traffic stop, but merely that such apparent avoidance of eye contact can be one factor that, together with others, may support a stop.

10 The dissent states that “it is impossible to say that the ‘route’ they [the occupants of the car] chose was ‘circuitous when they had not yet traveled to a specified destination when stopped. At most, we can conclude that they chose to drive a longer distance than necessary between two points.” Slip op, p 21. We do not perceive the distinction that the dissent would draw in this regard. It seems plain to us that a route would be “circuitous” precisely because it involved driving longer than necessary.

18

Apartments would have been east on North Street and then south

on Wisner Street to the intersection. This would have taken

the car past the bank at the intersection of North and Wisner

Streets. Instead, the car took a longer route by proceeding

west on North Street, then south on Brown Street, and finally

east on Ganson Street before reaching the intersection of

Ganson and Wisner Streets.

We recognize that the route followed by the Mercedes was

not mentioned in Deputy Elder’s testimony and evidently was

not subjectively relied on by the police in effecting the

traffic stop. Nevertheless, the location of the bank robbery

and the route followed by the Mercedes were obviously facts

known to the police before the traffic stop occurred. Thus,

these facts are appropriately considered in determining

whether there was reasonable suspicion to support the traffic

stop because, as this Court unanimously recognized in People

v Arterberry, 431 Mich 381, 384; 429 NW2d 574 (1988):

[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. [Quoting Scott v United States, 436 US 128, 138; 98 S Ct 1717; 56 L Ed 2d 168 (1978).]

Accordingly, objective facts known to the police officers who

effected the traffic stop should be considered in determining

19

whether the stop was justified by reasonable suspicion

regardless of whether the officers subjectively relied on

those facts.

We conclude that, under the totality of the

circumstances, Deputy Elder’s investigatory stop of the car at

issue was supported by reasonable suspicion that occupants of

that car may have been involved in the robbery of the Republic

Bank. The reasons for that conclusion include: (1) the deputy

encountered the car near the crime scene, given that the

apartment complex was within a quarter mile of the bank; (2)

the time was short, with at most fifteen minutes elapsing from

the time of the report of the robbery to the traffic stop;

(3) the car was occupied by individuals who comported with the

limited description that the officer had at his disposal; (4)

Deputy Elder had tentatively eliminated the direction north of

the bank as an escape route on the basis of the information he

received from the carpet store employees; (5) on the basis of

his familiarity with the area and experience with crimes of

this nature, Deputy Elder formed the reasonable and well­ articulated hypothesis that the robbers had fled to the

secluded Westbay Apartments; (6) the deputy also reasonably

hypothesized on the basis of his experience that the robbers

would use a getaway car to try to escape from the area; (7)

Deputy Elder also reasonably inferred on the basis of his

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experience that a driver would probably be at the getaway car

waiting for the actual robbers; (8) the behavior of each of

the car’s four occupants in seeming to avoid looking in the

direction of the deputy’s marked police car was atypical; (9)

the car was leaving the apartment complex, which is consistent

with it being a getaway car whose occupants were attempting to

leave the area; (10) the car followed a circuitous route that

avoided driving by the site of the bank robbery.11

The viewpoint of the dissent may best be summed up in its

statement that “in this case, the sum of zero suspicion and

zero suspicion is zero suspicion.” Slip op, p 19. Whatever

the obvious merits of this proposition, we respectfully

disagree that it bears any relevance to this case. The

factors that we have discussed above as supporting a finding

of reasonable suspicion were not each of “zero suspicion” in

themselves. Rather, as we have acknowledged, while the degree

11 As the dissent indicates, there was testimony from Deputy Elder that the car that was stopped was being driven in a manner that seemed overly cautious because of the driver’s strict compliance with traffic laws. Slip op, p 6. However, we place no reliance whatsoever on this strict compliance with the traffic laws in concluding that there was reasonable suspicion to support the present traffic stop. Indeed, we agree with the dissent that it would seem anomalous to consider the mere fact of strict compliance with the traffic laws as being a factor in support of a finding of reasonable suspicion of criminal activity. Of course, we do not mean to suggest that an act in compliance with the law cannot be a factor in support of reasonable suspicion.

21

of suspicion from each of the factors in isolation may have

fallen short of providing reasonable particularized suspicion

to support the present traffic stop, that does not mean that

these factors properly considered in the aggregate would not

provide reasonable suspicion to support the stop under the

totality of the circumstances. The validity of such a

cumulative analysis, as we have discussed, is well established

in our law.

It is always possible, as the dissent does, to

hypothesize innocent explanations for the circumstances

preceding the traffic stop. That possibility alone cannot

thwart the proper efforts of law enforcement to protect our

communities. “Terry accepts the risk that officers may stop

innocent people.” Wardlow, supra at 126.12 Indeed, the

possibility that innocent people will more than infrequently

be briefly detained during valid investigatory stops is

foreshadowed by guiding United States Supreme Court precedent,

given that the reasonable suspicion needed for such stops

“requires a showing considerably less than preponderance of

the evidence.” Id. at 123. As this Court explained in 1993

12 Indeed, the United States Supreme Court pointed out in

Wardlow that “the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent.” Id. at 126.

22

in Nelson, supra at 632:

[T]he absence of apparent innocent behavior has never been a requirement for the suspicion required to make an investigatory stop. United States v Sokolow, 490 US 1, 9; 109 S Ct 1581; 104 L Ed 2d 1 (1989). The question is not whether the conduct is innocent or guilty. Very often what appears to be innocence is in fact guilt, and what is indeed entirely innocent may in some circumstances provide the basis for the suspicion required to make an investigatory stop. Thus, the focus is on the “‘degree of suspicion that attaches to particular types of noncriminal acts.’” Id.

at 10.

Indeed, the facts of Nelson are instructive because they

also involve defendants of whom the police were reasonably

suspicious because of the location of occupants in a car near

a location where criminal activity was known to have occurred.

In Nelson, a police informant bought a quantity of cocaine

from a house that was under police surveillance. After about

thirty minutes, a vehicle with three occupants (unconnected

with the police informant) arrived at the house and remained

for only four minutes. A detective with twenty-three years of

experience testified that this behavior “was characteristic of

a ‘crack-house’ buy.” Id. at 629. Shortly after leaving the

house, the car in Nelson was stopped to investigate the

possible drug transaction. This Court, showing deference to

the experience of the police detective, held that the stop was

supported by reasonable suspicion, noting that the behavior in

23

that case “was indicative of drug trafficking.” Id. at 637­ 638. This Court in Nelson noted—and rejected—the argument of

one of the defendant’s counsel in the trial court that there

was no reasonable suspicion to support the traffic stop

because there were innocent explanations for the conduct such

as dropping off a birthday card or stopping to say hello.

This Court pointedly stated that “[t]he question is not the

number of scenarios that the imagination can conjure, but the

degree of suspicion conferred on the seemingly legal conduct.”

Id. at 635. Accordingly, the existence of reasonable

suspicion in the present case is not negated by the ability to

imagine possible innocent explanations for the presence of the

Mercedes at the apartment complex and the actions of the car’s

occupants.

In sum, the police in the present case stopped a car that

contained at least three people in a situation where the

police were looking for two bank robbers and expecting to find

a getaway driver as well. Because the car had at least two

black male occupants, its occupants were consistent with the

description of the bank robbers. After Deputy Elder

eliminated the direction north of the bank, the car was found

leaving a secluded area close to the bank (indeed, within a

24

quarter mile) that was a logical hiding place.13 The occupants

of the car drew further suspicion on themselves by appearing

to a trained law enforcement officer to be evasive by

declining to look in the direction of his marked police car as

it passed close by the car. Finally, the car followed a

circuitous route that avoided the site of the bank robbery

before the traffic stop. While one or more of these factors

in isolation may not have constituted reasonable suspicion to

stop the car, under the totality of the circumstances, there

was reasonable suspicion to justify the traffic stop in this

case.

13 While not expressly stated, the dissent seems to suggest that one of the reasons provided by Deputy Elder for investigating the Westbay Apartment complex may have been that “he knew blacks lived there.” See post at 10-12. However, Deputy Elder never indicated that he went to the Westbay complex because “he knew from personal experience that black individuals lived there.” Post at 11. Instead, his comments in this regard were isolated responses to specific questions concerning what he had observed while he had been at the complex on a previous occasion looking for an apartment with his wife. Accordingly, Deputy Elder’s testimony does not reflect that he decided to go to the Westbay Apartments because of the number of African-Americans that may have lived there, but merely that he happened to know from an unrelated event that African-Americans lived there.

In any event, we, of course, agree with the dissent that there would be nothing reasonably suspicious about African- Americans merely being at the apartment complex. Rather, as we have addressed, it is the particular circumstances surrounding the occupants of the car that was stopped in this case that provided reasonable suspicion for the present traffic stop.

25

III. CONCLUSION

We conclude that, under the totality of the

circumstances, the police had the necessary reasonable

suspicion to justify the traffic stop underlying these

consolidated cases. Accordingly, we affirm the judgment of

the Court of Appeals in each case.14

CORRIGAN , C.J., and WEAVER , YOUNG , and MARKMAN , JJ., concurred

with TAYLOR , J.

14 We note that defendant Taylor makes arguments in his brief on appeal regarding issues other than the validity of the stop of the Mercedes and the scope of his standing to challenge the evidence obtained as a result of that stop. These issues are beyond the scope of defendant Taylor’s application for leave to appeal that was previously granted by this Court. Accordingly, we decline to review those issues.

S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 112341

JOEY DUANE OLIVER,

Defendant-Appellant.

_______________________________________

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 115064

ANTHONY DUANE TAYLOR,

Defendant-Appellant.

_______________________________

CAVANAGH, J. (dissenting).

The primary issue in this case is whether reasonable

suspicion existed to stop and search a vehicle and its four

black occupants. I would hold that (1) the officer

effectuating the stop failed to articulate a particularized

and objective basis that would lead a reasonable person to

2

suspect the occupants of the vehicle of criminal activity, and

(2) evidence derived from the illegal stop is subject to

analysis under the exclusionary rule.

I

The issue in this case implicates the Search and Seizure

Clause of the Fourth Amendment of the United States

Constitution,1 which protects individuals against unreasonable

searches and seizures conducted by governmental actors. Whren

v United States, 517 US 806, 809-810; 116 S Ct 1769; 135 L Ed

2d 89 (1996). When a police officer detains, even

temporarily, the occupants of a vehicle, they have been

“seized” within the meaning of the Fourth Amendment. Delaware

v Prouse, 440 US 648, 683; 99 S Ct 1391; 59 L Ed 2d 660

(1979). Thus, the question becomes whether the seizure of the

defendants was constitutionally reasonable.

Our United States Supreme Court has spoken on the

requisite test to be applied in cases involving an

investigatory stop of criminal defendants. The Court has held

that “[a]n automobile stop is thus subject to the

constitutional imperative that it not be ‘unreasonable’ under

the circumstances.” Whren at 810. In United States v Cortez,

1

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated . . . .

449 US 411, 418; 101 S Ct 690; 66 L Ed 2d 621 (1981), the

United States Supreme Court stated that the totality of the

circumstances inquiry, in the event of a Terry stop, should

take into account the whole picture. On the basis of that

whole picture, the detaining officers must have a

particularized and objective basis for suspecting criminal

activity by the particular person stopped. In other words, to

justify the seizure, the officer must act on more than an

“inchoate and unparticularized suspicion or hunch.” Terry v

Ohio, 392 US 1, 27; 88 S Ct 1868; 20 L Ed 2d 889 (1968).

Instead, the officer must have at least “a particularized

suspicion, based on an objective observation, that the person

stopped has been, is, or is about to be engaged in criminal

wrongdoing.” People v Shabaz, 424 Mich 42, 59; 378 NW2d 451

(1985).

When the seizure of a defendant is unreasonable because

it does not comport with Terry, evidence flowing from that

seizure may be suppressed as fruit of the poisonous tree. Wong

Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441

(1963); Shabaz, supra. Pursuant to Wong Sun, “the fruits of

the officers' illegal action are not to be admitted as

evidence unless an intervening independent act of free will

purge the primary taint of the unlawful invasion.” Shabaz at

66.

II

In order to determine whether the stop in this case

passes constitutional muster, we are required to consider the

underlying facts as well as the deductions predicated upon the

facts and to make a determination of whether the detaining

officer had a reasonable, articulable, and particularized

basis for detaining the defendants. The majority does a fair

job of detailing the objective facts underlying this case and

recapping Deputy Elder’s testimony. However, the majority

occasionally commingles the facts with Deputy Elder’s

deductions and with its own deductions, and omits a few facts

that I find key to the case. This opinion offers a

disentangled version of the underlying events in order to

separate the circumstances giving rise to Deputy Elder’s

suspicions from the conclusions he drew on the basis of those

factors. I find the distinction to be crucial, especially in

light of the majority’s conclusions that an officer’s

subjective deductions must be given special deference, and

that factors not articulated by the officer may factor into a

determination of whether a stop was objectively reasonable.

Given the tests offered by the majority, I believe that the

Court must distinguish which parts of Deputy Elder’s testimony

amount to facts and which parts compose the officer’s

articulated particularized reasonable suspicion. In addition,

5

the Court should recognize which factors were extrinsic to the

officer’s articulated basis for effectuating the stop.

Deputy Elder’s testimony in this case revealed the

following facts common to both Oliver and Taylor: (1) Deputy

Elder overheard a dispatch2 that an armed robbery had just

occurred at the Republic Bank and that two black male suspects

had been last seen heading north on foot; (2) Deputy Elder

spoke to two men outside a New York Carpet World, which was

located north of the bank, who indicated that they had seen no

one but some children across the street during the preceding

ten minutes; (3) Deputy Elder then decided to go to the

Westbay Apartments, which were located approximately one

quarter mile west of the bank; (4) Deputy Elder came upon four

black men in a car as they were exiting the Westbay Apartment

complex, approximately ten to fifteen minutes after hearing

the dispatch; (5) Deputy Elder had previously observed that

blacks lived at the Westbay Apartment complex; (6) according

to Deputy Elder, the car’s occupants did not look in the

direction of his patrol car when he passed within six to eight

feet of them; (7) Deputy Elder doubled back, began following

2 In Oliver, Deputy Elder testified that he received a dispatch that was broadcast to all police agencies. In Taylor, he testified that he did not receive the dispatch directly, but heard some radio traffic.

the car, and radioed for back-up3; (8) while being followed by

Deputy Elder, the driver of the car drove cautiously and

obeyed all traffic laws; (9) while being followed by Deputy

Elder, the car drove west on one street, then turned south,

then turned east, and then turned south again before being

stopped.4

From these objective facts, Deputy Elder testified that

his experience as a police officer led him to deduce the

following: (1) that the Westbay Apartment complex would be an

excellent place for someone to run on foot or to hide a

getaway vehicle because it was close and secluded, (2) that if

there were a getaway vehicle, it would likely have at least

three occupants because an additional person usually drives

the getaway vehicle, (3) that it was very unusual for people

not to look at an officer or patrol car driving by, and (4)

that by driving the speed limit, using turn signals, and

making complete stops, the driver of the car seemed to be

overcautious. The majority adds one additional deduction–that

the defendants were acting suspiciously by driving a

3 It is unclear at what point the officer radioed for back up. In Taylor, he testified it was at the point he turned around and began to follow the defendants. In Oliver, he indicated it was while he was already following them.

4 In Oliver, Deputy Elder additionally testified about the fact that he had seen no black males either in vehicles or on foot before encountering the defendants.

“circuitous” route while being tailed by Deputy Elder.

III

According to the majority, reasonable suspicion is the

sum total of all the circumstances presented by this case. I

disagree. An analysis of the underlying facts and deductions

reveals that Deputy Elder’s suspicions were generalized,

rather than particularized, articulable, and reasonable.

Deputy Elder failed to demonstrate that these particular

defendants were acting in a fashion that would support a

suspicion that they had been or were about to be engaged in

criminal wrongdoing. As such, the stop lacked reasonableness

and was unjustified. See Shabaz at 59.

This case boils down to a situation in which our

defendants fell within the universe of possible suspects

because they were of the race, gender, and minimal number

described in the dispatch and because they were in the

vicinity of the robbery shortly after the time that it had

occurred. It is important to remember that the original

description Deputy Elder heard was that two black men (not

four), fled north (not west), on foot (not in a car). While

Deputy Elder’s testimony provided reasons to justify his

belief that he should look for a broader class of suspects

than the dispatch described, it is crucial to recognize that

many of the factors cited by Deputy Elder and relied upon by

8

the majority would justify a stop of any grouping of two or

more black males who happened to be traveling within the

vicinity of the robbery at the time of Deputy Elder’s search.

The law does not permit random stops of automobiles. Rather,

officers may make a stop only when particularized facts lead

them to reasonably believe that the occupants have

transgressed or will transgress some law.5

As a preliminary matter, it should also be recognized

that the majority had to deduce that the Westbay Apartment

complex was a reasonable place for Deputy Elder to look for

5 As we stated in Sitz v Dep’t of State Police, 443 Mich

744, 747; 506 NW2d 209 (1993), “there is no support in the constitutional history of Michigan for the proposition that the police may engage in warrantless and suspicionless seizures of automobiles for the purpose of enforcing criminal law . . . .”

Similarly, as we warned in People v Roache, 237 Mich 215, 224-225; 211 NW 742 (1927):

While we may take judicial notice of the fact that rum runners and bandits ride in automobiles, and use them to commit crimes and effect their escape, may we not also take judicial notice of the fact that where there is one bandit or rum runner passing over a public highway, there are thousands of respectable, law-abiding citizens who are doing likewise? The protection afforded by the constitution to such persons must be regarded as paramount to any right to be given a police officer to enable him to verify his ungrounded suspicion that a law is being violated.

The granting, if such were possible, to over­ zealous officers, of powers, the performance of

which would invade constitutional rights of the citizen, would do more to retard the enforcement of the law than to promote it.

suspects as a precursor to the conclusion that he had the

requisite reasonable suspicion. Though Deputy Elder testified

that he had headed to the Westbay Apartment complex after

ruling out the area north of the bank, and also stated that a

getaway car would probably be located in a secluded area, his

search nonetheless began north of the bank and he made

inquiries of individuals standing in a public parking lot.

Thus, it is not entirely clear that the Westbay Apartment

complex was an area any more suspicious than anywhere else

near the robbery, or that Deputy Elder would have been any

less suspicious of black males in a crowded parking lot.

Further, Jackson is a mid-sized city with a population over

37,000; it seems reasonable to infer that there could be

scores of places to hide a getaway vehicle. Additionally, ten

to fifteen minutes had passed before Deputy Elder arrived at

the Westbay Apartments. Given that the apartment complex was

located only a block away from the bank, the amount of time

that passed between when Deputy Elder received the dispatch

and the time he encountered the defendants was well beyond the

necessary time to escape. Thus, the passage of time made it

less likely that there was a connection between the robbery

and the presence of four black men.

Even assuming that it is appropriate to rely on the

deduction that the Westbay Apartment complex was a reasonable

10

place to hide a getaway car, almost all the factors noted in

Deputy Elder’s testimony reveal only that he believed that he

was in a location where the suspects might reasonably be when

he stopped the defendants: he had ruled out the area near the

New York Carpet World, he was within a quarter mile of the

bank, he thought a getaway car might be hidden there, he

thought it was within walking distance of the bank, and he

knew blacks lived there. None of these factors were tied to

our defendants. Similarly, Deputy Elder also offered a few

factors that tend to show that the defendants were not

precluded from the list of suspects: they were black, they

were male, and there were at least two of them. At most,

these collective observations by Deputy Elder narrowed the

list of possible suspects. None of these factors would tie

our specific defendants to the crime. While Deputy Elder may

have been justified in stopping only black males in the

vicinity, nothing in his testimony indicates that he was

justified in stopping every grouping of black males in the

vicinity, or these black males in particular.

Even if special weight is given to the fact that Deputy

Elder believed the apartment complex would be a good place to

hide a getaway vehicle and that at least three people would

have been involved in the crime, the prosecution was still

required to show that Deputy Elder believed that these

11

particular defendants had been or were about to be engaged in

criminal activity. Instead, a review of the factors leading

to Deputy Elder’s suspicions of these particular defendants,

as opposed to his suspicion of groups of black men in general,

amount to nothing more than a hunch that they in fact may have

been the robbers. For Fourth Amendment purposes, a hunch is

an insufficient basis for initiating a stop. See Terry at 27.

In Oliver, Deputy Elder testified that he was familiar

with the Westbay Apartments, that he knew from personal

experience that black individuals lived there, and that it

would not be unusual for black individuals to be coming out of

the Westbay Apartment complex. These factors undercut the

reasonableness of Deputy Elder’s suspicions that any

particular black men or group of black men at the apartment

complex were the bank robbers.6 This is especially true in

6 As a matter of logic, searching for a black person in an

area where there is a concentration of black people makes it less likely that any particular black individual is the one unknown individual you are searching for than if you were to see a black individual in an area where the black population is less concentrated.

With regard to the fact that Deputy Elder knew blacks lived at the Westbay Apartments, the majority writes,

Deputy Elder never indicated that he went to the Westbay complex because “he knew from personal experience that black individuals lived there.”

Post at 11. Instead, Deputy Elder’s comments in this regard were isolated responses to specific questions concerning what he had observed while he had been at the complex on a previous occasion (continued...)

light of the fact that the officer had absolutely no

description of the suspects’ size, age, or clothing.

Beyond the fact that the defendants were a group of black

men traveling together in a car near the location of the

robbery, Deputy Elder offered only two reasons for stopping

these defendants: they over-cautiously followed all traffic

laws, and they did not look at him when he drove by them. The

majority wisely has chosen not to place emphasis on the fact

that the defendants were obeying all traffic laws while being

followed by a police officer. On cross-examination, Deputy

Elder conceded that it is not unusual for persons followed by

a marked police car to drive cautiously. The trial judge also

found that the way the car was driven was not unusual, as an

average citizen would drive similarly.

6 (...continued)

looking for an apartment with his wife. [Slip op at 24-25.]

I note that this opinion nowhere states that Deputy Elder went to the Westbay Apartments because he believed that he would find blacks there. The opinion simply points out that Deputy Elder himself testified that he knew that he was in an area where it was not unusual to see blacks leaving the apartment complex. Thus, his testimony is indicative of the fact that there was nothing inherently suspicious about the fact that our defendants were leaving the Westbay Apartments, and that Deputy Elder knew there was nothing suspicious about black individuals exiting the Westbay Apartments.

It is entirely irrelevant whether Deputy Elder’s testimony came to light in response to questions posed by defense counsel or whether he offered the information voluntarily. The fact remains that his testimony sheds light on whether his suspicions were reasonable and particularized.

The final factor, that the defendants did not look at the

patrol car when leaving the apartment complex, is the only

other factor enunciated by Deputy Elder that potentially tends

to separate these particular defendants from the general

populace of black men. With regard to this observation, the

majority defers to Deputy Elder’s experience as a law

enforcement officer, and concludes that courts may consider

“evasive” behavior as a factor in determining whether

reasonable suspicion exists. I believe that the majority

places too much weight on this solitary factor, and I disagree

with the majority’s analysis in several regards.

First, I disagree that the law somehow decisively

supports the proposition that failure to look at a police

officer constitutes a specific factor. The primary case

relied upon by the majority is distinguishable. The majority

cites Illinois v Wardlow, 528 US 119, 124; 120 S Ct 673; 145

L Ed 2d 570 (2000), for the proposition that, “nervous,

evasive behavior is a pertinent factor in determining

reasonable suspicion.” Slip op at 14. However, Wardlow

involved a defendant who fled at the sight of police officers.

Failure to react to police officers and reacting by fleeing

are very different, even opposite, behaviors. Wardlow is in

no way controlling. Thus, unlike the majority, see slip op at

16, n 8, I believe that pre-Wardlow decisions are of great

14

value, and are more persuasive than the limited authority

offered by the majority.7

Second, while I agree that courts may consider an

officer’s years of experience when determining whether his

actions were reasonable, the majority overstates the degree of

deference that must be given to an experienced police

officer’s deductions. The majority relies in large part on

People v Nelson, 443 Mich 626; 505 NW2d 266 (1993). Though

Nelson did recognize that a certain degree of deference should

be given to officers who draw inferences based on experiences

with crimes occurring under similar circumstances or committed

by similarly situated defendants, see id. at 636, an officer’s

7 See United States v Dela Cruz-Tapia, 162 F3d 1275, 1280

(CA 10, 1998)(the lack of eye contact is so innocent or susceptible to varying interpretations as to be innocuous and does not afford a reasonable suspicion for a stop); United States v Garcia-Camacho, 53 F3d 244, 246-247 (CA 9, 1995)(the fact that occupants of a vehicle stared straight ahead when passing a marked police car cannot weigh in the balance of whether there existed a reasonable suspicion for a stop); United States v Halls, 40 F3d 275, 276 (CA 8, 1994)(merely avoiding eye contact with state troopers while driving a vehicle fails to give rise to a reasonable inference of illegal activity); United States v Pavelski, 789 F2d 485, 489 (CA 7, 1986)(the fact that four men in a car failed to make eye contact with an officer cannot justify an investigatory stop); United States v Pacheco, 617 F2d 84, 87 (CA 5, 1980)(in assessing reasonable suspicion for stopping a vehicle, “the avoidance of eye contact can have no weight whatsoever”); United States v Lamas, 608 F2d 547, 549-550 (CA 5, 1979)(“testimony that the occupants of a car avoided eye contact with [the officer] as they passed” cannot weigh in the balance whatsoever “because of the precarious position travelers on our nation’s highways would be placed in if avoiding eye contact with an officer could be considered a suspicious reaction”).

bald assertion that a particular situation looks like a

criminal transaction to the officer is not enough to justify

a Fourth Amendment intrusion. People v LoCicero (After

Remand), 453 Mich 496, 506; 556 NW2d 498 (1996). Where an

officer institutes an investigatory stop that is based on a

mere hunch rather than reasonably articulated and

particularized facts, deference must be given to the

constitution in lieu of the officer’s years of experience.8

8 The majority places great reliance on Nelson, stating

that “the facts of Nelson are instructive because they also involve defendants of whom the police were reasonably suspicious because of the location of occupants in a car near a location where criminal activity was known to have occurred.” Slip op at 22. Nelson involved factors that were more particularized than the factors at issue in the present case. In Nelson, the police were on surveillance at a particular location where criminal activity had previously occurred and was suspected to occur again. The exact type of activity the police were watching for in fact occurred before the time that the police stopped the defendants. In LoCicero at 503, this Court noted Nelson’s observation that

the detective watching the house testified “that on the basis of his twenty-three years experience, the defendant’s behavior was characteristic of a ‘crack-house’ buy: ‘a short visit, in/out back in the car and down the road.’ It was described as a ‘carbon copy’ of what had occurred two weeks earlier.” The Court concluded that this knowledge, coupled with the other information the police had regarding the house, formed the basis for reasonable suspicion justifying further inquiry.

Contrast these factors with what occurred in our case: the police knew that a crime occurred somewhere in the area, but they were not watching for the crime to be repeated; the police knew that suspects would likely be in the general area, but they did not know where; and the police did not observe behavior that amounted to a carbon copy of behavior they had previously seen while observing robbers.

Even if Deputy Elder’s conclusion that it is unusual for

people to avoid looking at police is given a great deal of

weight as the majority suggests, his observation is

insufficient in and of itself to create reasonable suspicion

in this case. The majority correctly points out that it does

not suggest that “the mere fact that a car passes by a patrol

car without any of its occupants looking at the patrol car

would justify a traffic stop, but merely that such apparent

avoidance of eye contact can be one factor that, together with

others, may support a stop.” Slip op at 17, n 8.

In sum, the factors cited by Deputy Elder in support of

his decision to stop the defendants do not amount to

reasonable suspicion. In this regard, I agree with the

majority that the fact that four men are leaving an apartment

complex is not suspicious.9 Similarly, the majority correctly

concludes that the fact that the defendants fit within the

description of possible suspects did not create particularized

reasonable suspicion.10 Additionally, I find nothing

9

[I]n itself, there is certainly nothing suspicious about four men occupying a car that is leaving an apartment complex. [Slip op at 11.]

10 The majority states:

[T]he fact that the car had at least three occupants and at least two black males indicated that its occupants were consistent with the description of the suspected perpetrators. Of (continued...)

particularly suspicious about the fact that the defendants

were leaving Westbay Apartments at the time Deputy Elder was

patrolling the area, especially in light of Deputy Elder’s own

testimony that it was not unusual for black men to be leaving

the complex.11 Similarly, I find nothing suspicious about the

10 (...continued)

course, that in itself would not provide the particularized suspicion necessary for a valid investigatory stop. [Slip op at 11-12.]

11 During oral argument before this Court, even the

attorney for the people recognized that a Fourth Amendment problem could arise when an officer simply goes to an area near a crime scene where a high concentration of people fitting the description might be found, and then relies on something as minimal as the avoidance of eye contact to support a stop. The following discourse occurred:

Court: So let’s say the robbery were reported to have been committed by a senior citizen with gray hair. I presume if Elder drove to a nearby retirement center and waited for the first person coming out that had gray hair in the car and looked straight ahead, he could stop him.

Attorney: Boy, I’d have trouble with that one because in the first place, senior citizens with gray hair, statistically there are a lot more of them than . . . .

Court: Than black males?

Attorney: In the Jackson area, oh yes. If the facts of this had occurred in East Detroit, I’d be in really big trouble. I personally would not find reasonable suspicion in your case . . . .

The people’s attorney then went on to explain that the inquiry entails looking at the totality of the circumstances, and that a limiting description that cuts out over half the population would add support for a finding of reasonable suspicion. What the attorney failed to recognize is that Deputy Elder himself admitted that he was not in an area where the description was (continued...)

fact that the defendants were obeying all traffic laws.

Again, I would point out that even Deputy Elder’s testimony

indicated that it is not unusual for people to follow traffic

laws when followed by a marked police car. Once these clearly

nonsuspicious singular factors are subtracted from the list of

factors offered by Deputy Elder, all we are left with is the

fact that the defendants did not look at Deputy Elder’s patrol

car. I agree with the majority that taken alone, the failure

to look at a passing patrol car would not justify a traffic

stop.12 For these reasons, I would hold that Deputy Elder’s

decision to stop the defendants was not predicated upon

reasonable, articulable, and particularized suspicion.

IV

None of the factors cited by Deputy Elder as suspicious

would justify the stop in this case in and of itself. Thus,

the only way that particularized suspicion can be found on the

facts offered by Deputy Elder is to conclude that the

collection of unsuspicious behaviors offered by Deputy Elder

somehow acted in tandem to create particularized reasonable

11 (...continued)

limited. Instead, he was in an area where it was not unusual to see black males.

12

[N]one of this is to suggest that the mere fact that a car passes by a patrol car without any of its occupants looking at the patrol car would justify a traffic stop . . . . [Slip op at 17, n 8.]

suspicion. I would conclude that, in this case, the sum of

zero suspicion and zero suspicion is zero suspicion.13 In

reaching an opposite conclusion, the majority turns to the

facts of Terry, the original “stop and frisk” case. According

to the majority, “Terry illustrates how factors that in

isolation appear innocent may, in combination, provide a

police officer with reasonable suspicion to justify an

investigative stop . . . .” Slip op at 10. However, what the

majority fails to recognize is that in Terry, the police

officer observed particular individuals engaging in a series

of behaviors that the officer believed to be characteristic of

defendants preparing to commit a robbery. In the present

case, Deputy Elder’s first glance of the defendants was at the

moment he observed them pulling out of the parking lot at the

Westbay Apartments. While he may have had a reason for

heading toward the apartment complex, any deductions the

officer made before encountering our defendants pertained to

suspects in general and added nothing to the determination of

whether these particular defendants had been or were about to

be engaged in criminal wrongdoing as required by the Fourth

Amendment. Thus, I believe the majority makes a fundamental

13 Though the majority attempts to assert otherwise, the

simple fact remains that nothing in the majority opinion shows that our particular defendants were any more suspicious than any other black men who would have been leaving the Westbay Apartments together.

error.

V

It is clear that reasonable suspicion has not been

proven on the basis of the factors relied upon by Deputy

Elder. The factors were not suspicious, either individually

or collectively. However, the majority asserts that this

Court should consider all the factors available to the police

in determining whether the stop was justified, regardless of

whether the officers subjectively relied upon those facts.

Citing People v Arterberry, 431 Mich 381, 384; 429 NW2d 574

(1988). In particular, the majority finds significance in the

fact that the defendants drove a “circuitous” route while

being followed. I disagree with the majority that a

significant level of suspicion is objectively raised by the

fact that a car full of persons being tailed by a police

officer who doubled back to follow them choose not to drive

the most direct route between two points along the path to an

unknown destination. First of all, the officer’s suspicions

were apparently aroused before he decided to follow the

defendants, as indicated by his decision to double back and

follow them. Moreover, it is impossible to say that the

“route” they chose was “circuitous,” when they had not yet

traveled to a specified destination when stopped. At most, we

can conclude that they chose to drive a longer distance than

21

necessary between two points. Moreover, it is entirely

plausible that an innocent defendant would change course,

hoping that the police officer would continue in another

direction. Further, it is possible that a driver with a car

full of passengers might be distracted in conversation, and

travel in a direction he might not otherwise. If we are to

look at the objective circumstances of this case, without

regard to the officer’s subjective state of mind, then we must

consider not only factors indicative of guilt, but also other

possible innocent explanations for the defendants’ behavior.

Objectively viewed, I would not consider the defendant’s

behavior to be particularly suspicious. Nothing indicates

that these particular defendants had or were about to be

engaged in criminal wrongdoing, as is required for a Fourth

Amendment stop to be valid. Shabaz at 59. Rather, the

officer acted upon an inchoate or unparticularized hunch. I

would, therefore, hold that Deputy Elder’s actions were

unreasonable under the circumstances, and that the stop was

constitutionally invalid. See Whren at 810; Terry at 27.

As such, the fruits of the illegal stop are subject to an

exclusionary rule analysis.

The unlawful invasion in this case was an illegal stop of

a vehicle occupied by four men. The subsequent searches and

seizures of the occupants produced the “fruits” sought to be

22

suppressed. Wong Sun explained that, in determining whether

evidence should be excluded as fruit of the poisonous tree,

the question is “whether, granting establishment of the

primary illegality, the evidence to which instant objection is

made has come by exploitation of that illegality or instead by

means sufficiently distinguishable to be purged of the primary

taint.” Id. at 488. In this case, the evidence obtained

appears to have come about directly by exploitation of the

illegal stop.

The trial court’s decision to admit the evidence flowing

from the stop was made without consideration for the

exclusionary rule because the decision was based on an

erroneous conclusion that the stop was reasonable. The Court

of Appeals affirmance similarly found the exclusionary rule to

be inapplicable.14 Given the illegality of the stop, the

exclusionary rule would be directly implicated. I would,

therefore, reverse and remand for a determination of whether

the “fruit” of the illegal stop came about by any legitimate,

distinguishable means that would purge the taint of this

unlawful seizure.

KELLY , J., concurred with CAVANAGH , J.

14 The Court of Appeals affirmed on grounds different than

that offered by the trial court. However, the Court of Appeals conclusion that the defendant was lawfully arrested ignored the illegality of the initial stop. Thus, like the trial court, the Court of Appeals erred at the outset.