People v. Mamon

457 N.W.2d 623, 435 Mich. 1

• Court: Michigan Supreme Court
• Decided: June 20, 1990
• Docket: 85519, (Calendar No. 2)
• Status: Published

Opinions

Riley, C.J.

This case presents us with the issue whether the Fourth Amendment of the United States Constitution and Michigan’s analogous provision, Const 1963, art 1, § 11,¹ apply to a defendant who discards illegal contraband during a police chase. Our determination of this issue depends upon the resolution of two narrower issues: First, whether a person has standing in the context of the Fourth Amendment to challenge the introduction of a discarded bag containing illegal drugs, or, more specifically, whether the person has a reasonable expectation of privacy in the discarded bag and its contents, and, second, whether police pursuit of a person amounts to a seizure under the Fourth Amendment of the United States Constitution.

Under the facts of the instant case, we would hold that the defendant did not have standing to challenge the introduction of the narcotics discovered in the bag. Rather, we believe that the defendant renounced any reasonable expectation of privacy in the bag and its contents once he abandoned it during the police chase. We also would hold that the police pursuit of the defendant did not constitute a seizure under the Fourth Amendment. Consequently, the police conduct never implicated the constitutional protections provided by the Fourth Amendment. We would reverse the decisions of the Court of Appeals and the trial court and remand this case to the trial court for proceedings consistent with this opinion.²

I. FACTS AND PROCEEDINGS

The defendant was charged with possession of a controlled substance, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv). Kelvin Patrick, a Detroit police officer, offered the only testimony at the preliminary examination. He testified that on September 19, 1986, at approximately 7:50 p.m., he and his partner were driving a marked patrol car southbound on Log Cabin in Detroit. As they approached the corner of Log Cabin and Grove, an area with a history of narcotics activity, they observed the defendant, Mark Mamón, standing next to a public telephone. The defendant noticed the police car and fled toward a dwelling located at 16744 Log Cabin. The officers stopped the car and followed the defendant on foot, during which time they saw the defendant reach into his right pocket and throw away a burgundy-colored bag. The officers detained the defendant and retrieved the bag, in which they discovered six particles of suspected cocaine.³

Upon the basis of this information, the district court bound the defendant over to Detroit Recorder’s Court on the controlled substance charge. At a hearing on May 29, 1987, the Recorder’s Court suppressed the cocaine and dismissed the case upon the basis of People v Shabaz, 424 Mich 42; 378 NW2d 451 (1985). The court reasoned that the police obtained the cocaine as a result of an unlawful seizure. In particular, the court found that the police pursuit constituted a seizure and that, at the time the police initiated their pursuit of the defendant, they did not have a reasonable, articulable suspicion upon which they could base their actions. The Court of Appeals affirmed the decision of the trial court.⁴ On June 30, 1989, this Court granted the people’s application for leave to appeal.⁵

II. ANALYSIS

The Fourth Amendment provides in pertinent part, "[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 IV. In order to receive the panoply of its constitutional safeguards, a person must have standing in the context of the Fourth Amendment to challenge the introduction of the particular piece of evidence being offered against him. This initial standing inquiry depends upon whether the defendant has a reasonable expectation of privacy in the particular goods at issue. Katz v United States, 389 US 347, 361; 88 S Ct 507; 19 L Ed 2d 576 (1967) (Harlan, J., concurring); Terry v Ohio, 392 US 1, 9; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Moreover, a person does not have a reasonable expectation of privacy. in property which he has "abandoned.” Abel v United States, 362 US 217, 241; 80 S Ct 683; 4 L Ed 2d 668 (1960); Hester v United States, 265 US 57, 58; 44 S Ct 445; 68 L Ed 898 (1924); People v Jackson, 175 Mich App 562; 438 NW2d 84 (1988); People v Wright, 151 Mich App 354; 390 NW2d 187 (1986); People v Boykin, 119 Mich App 763; 327 NW2d 351 (1982); United States v Thomas, 275 US App DC 21, 23-24; 864 F2d 843 (1989). As the United States Court of Appeals for the District of Columbia recently explained:

A warrantless search or seizure of property that has been "abandoned” does not violate the fourth amendment. See, e.g., Abel v United States, 362 US 217, 241; 80 S Ct 683, 698; 4 L Ed 2d 668 (1960). "When individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had.” United States v Jones, 707 F2d 1169, 1172 (CA 10 [1983]) (citation omitted), cert den 464 US 859; 104 S Ct 184; 78 L Ed 2d 163 (1983). The test for abandonment in the search and seizure context is distinct from the property law notion of abandonment: it is possible for a person to retain a property interest in an item, but nonetheless to relinquish his or her reasonable expectation of privacy in the object. See, e.g., United States v Colbert, 474 F2d 174, 176 (CA 5, 1973). To determine whether there is abandonment in the fourth amendment sense, the district court must focus on the intent of the person who is alleged to have abandoned the place or object. See United States v Anderson, 663 F2d 934, 938 (CA 9, 1981). The test is an objective one, and intent may be inferred from "words spoken, acts done, and other objective facts.” Colbert, 474 F2d at 176.

Accordingly, in the instant case, we must determine whether the defendant had a reasonable expectation of privacy in the bag and its contents. If he did, then the search of the bag without a warrant violated the defendant’s Fourth Amendment rights. Whereas, if he did not, as the people contend, when the defendant threw away the bag, he abandoned it and cut off his standing to challenge the introduction of the bag and its contents under the Fourth Amendment.

The people argue, and we agree, that the police did not need a warrant to search the discarded bag. Our assessment of the facts persuades us that the defendant unquestionably relinquished any reasonable expectation of privacy in the bag and its contents when he voluntarily reached into his right pocket and discarded the bag.⁶ However, the defendant contends that even if he abandoned the bag, he did so contemporaneously with or after the police unlawfully seized him. Therefore, he contends that the trial court properly suppressed the narcotics found in the bag as evidence obtained solely from an unlawful seizure. Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963). We will only reverse the decision of the trial court if it clearly erred at the suppression hearing. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). Consequently, we must determine whether the police conduct constituted a seizure under the Fourth Amendment.

In a recent case almost identical to the one before this Court today, the United States Supreme Court refused to adopt a brightline rule to determine when a police chase constituted a seizure. Michigan v Chesternut, 486 US 567, 573; 108 S Ct 1975; 100 L Ed 2d 565 (1988).⁷ Rather, the Court reaffirmed its adherence to a "traditional contextual approach”:

In Terry v Ohio, 392 US 1 (1968), the Court noted:

"Obviously, not all personal intercourse between policemen and citizens involves 'seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure’ has occurred.” Id. at 19, n 16. . . . The test provides that the police can be said to have seized an individual "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” . . .

The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to "leave” will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs. [Citations omitted.]

In Chesternut, two police officers, while on routine patrol in a marked police car, approached an intersection in a high crime area of Detroit when they noticed the defendant standing at the street corner talking with another man. The defendant ran upon seeing the police car. The police followed the defendant in their car "to see where he was going.” Id., p 569. They caught up with him and drove alongside the defendant for a short distance. At this point, the police observed the defendant throw away a number of tiny packets. One officer got out of the car and examined the packets. The packets contained pills which the officer suspected contained codeine. The police arrested the defendant for possession of narcotics. A search of the defendant at the police station revealed more pills, heroin, and a hypodermic needle. Under these facts, the Supreme Court concluded

that respondent was not seized by the police before he discarded the packets containing the controlled substance. Although Officer Peltier referred to the police conduct as a "chase,” and the Magistrate who originally dismissed the complaint was impressed by this description, the characterization is not enough, standing alone, to implicate Fourth Amendment protections. Contrary to respondent’s assertion that a chase necessarily communicates that detention is intended and imminent . . . the police conduct involved here would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon respondent’s freedom of movement. The record does not reflect that the police activated a siren or flashers; or that they commanded respondent to halt, or displayed any weapons; or that they operated the car in an aggressive manner to block respondent’s course or otherwise control the direction or speed of his movement. . . . While the very presence of a police car driving parallel to a running pedestrian could be somewhat intimidating, this kind of police presence does not, standing alone, constitute a seizure. Cf. United States v Knotts, 460 US 276 [103 S Ct 1081; 75 L Ed 2d 55] (1983) (holding that continuous surveillance on public thoroughfares by visual observation and electronic "beeper” does not constitute seizure); Florida v Royer, 460 US [491, 497; 103 S Ct 1319; 75 L Ed 2d 229 (1983)] (plurality opinion) (noting that mere approach by law enforcement officers, identified as such, does not constitute seizure). Without more, the police conduct here — a brief acceleration to catch up with respondent, followed by a short drive alongside him — was not "so intimidating” that respondent could reasonably have believed that he was not free to disregard the police presence and go about his business. [Immigration & Naturalization Service] v Delgado, 466 US [210, 216; 104 S Ct 1758; 80 L Ed 2d 247 (1984)]. The police therefore were not required to have "a particularized and objective basis for suspecting [respondent] of criminal activity,” in order to pursue him. United States v Cortez, 449 US 411, 417-418 [101 S Ct 690, 694-695; 66 L Ed 2d 621] (1981). [Chesternut, supra, pp 574-576.]

The defendant contends that Chesternut is distinguishable from the instant case. More precisely, he argues this Court should distinguish the instant case from Chesternut because the police in Chesternut "drove alongside” rather than pursued the defendant on foot.⁸ We disagree.

The police in Chestemut "drove alongside” the defendant only after they accelerated their marked police car in an obvious attempt to catch up with him. Furthermore, they did so after the defendant fled from a street corner with a history of narcotics activity and without any provocation from the police. Although the Court recognized that this type of police conduct might be somewhat intimidating, it would not necessarily convey to a reasonable person that he was not free to leave. Similarly, in the instant case, the police followed the defendant on foot only after he fled a street corner with a history of drug transactions. As in Chesternut, while following a person on foot might be somewhat "intimidating,” it does not amount to a seizure under the Fourth Amendment. We do not believe that it would convey to a reasonable person that he was not free to leave. Conversely, it cannot be assumed that a person’s unprovoked flight from a street corner in a high crime area is an indication of that person’s desire to avoid communication with the police. Moreover, we see no distinguishable difference between accelerating in a police car to catch up with a fleeing person and doing so on foot. In either case, without more, the police have not seized the person.

We also believe that application of the other factors considered integral by the Chesternut Court in determining whether a seizure occurred supports our conclusion in the instant case. As the Chesternut Court noted,

[T]he police conduct involved here would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon respondent’s freedom of movement. The record does not reflect that the police activated a siren or flashers; or that they commanded respondent to halt, or displayed any weapons; or that they operated the car in an aggressive manner to block respondent’s course or otherwise control the direction or speed of his movement. [Chestemut, supra, p 575.]

Similarly, in the instant case, the police never acted in a manner which might transform a police chase into a Fourth Amendment seizure. They never activated a siren or flasher, they never commanded the defendant to halt, they never displayed any weapons, and they never attempted to force the defendant to run in a direction other than the one chosen by him when he decided to flee from the street corner.⁹ See People v Hamp, 170 Mich App 24; 428 NW2d 16 (1988). (The police seized the defendant when he entered a home. The police surrounded the defendant and began reaching for their badges.) Put simply, the police never exhibited any show of authority which would indicate to a reasonable person that he was not free to leave.¹⁰

To conclude otherwise, in the context we are presented with today, would effectively do what the United States Supreme Court has specifically refused to do: reduce the totality of the circumstances test to a brightline rule in which almost every police chase constitutes a seizure. For example, consider the Court of Appeals suggestion that the police can do more than "stand idly by and watch defendant run. Rather, defendant’s activity was suspicious enough to justify some further investigation.” 173 Mich App 429, 442-443; 435 NW2d 12 (1988). We think the Court of Appeals correctly recognized that the police can do more than stand by idly and observe the defendant run away. However, under the Court of Appeals analysis, once the police officers observe a person running, they cannot follow after him without "seizing” him for purposes of the Fourth Amendment. Surely the Court of Appeals and defendant do not suggest that the police may only walk after a person who is running away. In essence, the Court of Appeals and the defendant imply that the police can only pursue a defendant under the narrow factual circumstances of Chesternut. We do not read the United States Supreme Court opinions as limiting nonseizure police chases to these rare situations.

We find it incomprehensible that the police can drive up to and alongside a person fleeing in the opposite direction, but once they get out of the car and commence their pursuit on foot, the pursuit instantaneously transforms into a seizure. Nothing in Chesternut even remotely suggests this conclusion. In our opinion, without more, a police foot chase does not amount to a seizure within the meaning of the Fourth Amendment. Otherwise, we would effectively reduce the role of a police officer to that of a mere spectator. Effective law enforcement techniques not only require passive police observation, but also necessitate their interaction with citizens on the streets. This interaction means that oftentimes the police must follow after and observe persons moving faster than a person walking at a normal pace.

We recognize that there is a delicate balance between efficient police conduct which does not intrude upon a person’s constitutional rights, and that which does. However, we cannot ignore the devastating effect that illegal drugs has had on our society. Our decision today permits police to participate actively and effectively to help curtail the use of illegal drugs, while not intruding upon a person’s Fourth Amendment right against unreasonable seizures. On the one hand, it permits the police to follow and observe persons in public places, and on the other, it leaves open the possibility that some police chases might constitute a seizure under the Fourth Amendment. As the Chesternut Court noted, the inquiry is whether a "reasonable person” thought he was free to leave and not whether the defendant thought he was free to leave. A reasonable person would not necessarily believe that police following after him intended to capture him, nor would his unprovoked flight from a street corner necessarily express his preference not to communicate with the police.

Moreover, we believe that Brower v Inyo Co, 489 US 593; 109 S Ct 1378; 103 L Ed 2d 628 (1989), a recent civil rights case decided by the United States Supreme Court, supports our conclusion. In Brower, the police set up a roadblock in order to stop a car thief. The thief crashed into the roadblock and died. The thief’s estate brought a civil rights action against the police. Significantly, the majority stated in dicta that

[violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking [citations omitted], but the detention or taking itself must be willfül. . . .

... It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual’s freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied. [Id., pp 596-597. Emphasis in original.]

Although not necessary to our decision in the instant case because of our reliance upon Chester-nut, the Brower dicta strongly suggest that the police conduct in the instant case did not constitute a seizure within the meaning of the Fourth Amendment.

III. CONCLUSION

Therefore, we conclude that the police pursuit of the defendant did not amount to a seizure under the Fourth Amendment. Consequently, the defendant relinquished any reasonable expectation of privacy in the contents of the bag once he discarded it during his flight from the street corner. He had no standing to challenge its admissibility under the Fourth Amendment. We would reverse the opinion of the Court of Appeals and remand the case to the trial court for proceedings consistent with this opinion.

Boyle and Griffin, JJ., concurred with Riley, C.J.

1 The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.

We have not previously interpreted this provision differently from the Fourth Amendment of the United States Constitution. People v Shabaz, 424 Mich 42; 378 NW2d 451 (1985); People v Moore, 391 Mich 426; 216 NW2d 770 (1974); People v Pennington, 383 Mich 611; 178 NW2d 471 (1970). Therefore, any reference to the Fourth Amendment applies equally as well to Const 1963, art 1, § 11. See Michigan v Long, 463 US 1032; 103 S Ct 3469; 77 L Ed 2d 1201 (1983).

2 The defendant also contends, and the Court of Appeals agreed, that the police did not have a reasonable, articulable suspicion justifying the seizure. See Shabaz, n 1 supra; People v Terrell, 77 Mich App 676; 259 NW2d 187 (1977). However, we need not address this issue because we conclude that the police had not seized the defendant when he abandoned the narcotics.

We also note that in Michigan v Chesternut, 486 US 567, 575, n 8; 108 S Ct 1975; 100 L Ed 2d 565 (1988), in dicta, the United States Supreme Court distinguished, rather than overruled Shabaz, on the grounds that the prosecutor in Shabaz stipulated that the chase constituted a seizure. Our review of the briefs in Shabaz indicates that the prosecutor vigorously argued that the chase did not constitute a seizure. Apparently, the Shabaz Court assumed, without deciding, for purposes of this opinion that the police chase constituted a seizure.

3 Subsequent chemical tests confirmed that the bag contained cocaine.

4 173 Mich App 429; 435 NW2d 12 (1988).

5 432 Mich 921 (1989).

6 Many courts consider the determination of whether a person has abandoned property as a factual inquiry into the person’s intent, and therefore, reviewable under a “clearly erroneous” standard of review. See Wright, supra; Thomas, supra at 846. See also People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983) (the trial court decision at the suppression hearing was reviewed under a clearly erroneous standard). In the instant case, neither the trial court nor the Court of Appeals addressed this issue. However, we note that the defendant appears to concede the issue. More importantly, from our review of the record, we can find no testimony which would lead to the conclusion that the defendant did not intentionally relinquish any expectation of privacy in the cocaine when he threw away the bag in which it was contained. Thus, unlike Shabaz, there is no evidence which might lead to the conclusion that the defendant attempted to conceal, rather than abandon, the bag. 424 Mich 65-66.

7 The Chesternut Court rejected the defendant’s proposed brightline rule that all police chases are seizures. The Court also rejected the prosecutor’s proposed brightline rule that a seizure never occurs until the suspect responds to the police officer’s show of authority.

8 Apparently, the defendant also believes that we should distinguish between police "chases,” "pursuits,” and "followings.” We decline to do so. In our opinion, these terms have similar, if not the same, meanings in the context of these cases.

9 While we agree with the dissent that the Chestemut Court never intended this list of other factors to be exhaustive, without the existence of these or any "additional” factors in the instant case, the police pursuit did not constitute a seizure.

10 In Immigration & Naturalization Service v Delgado, supra at 218, the Court noted that immigration agents posted at the exits of a factory did not amount to a seizure of the factory worker because the agents did nothing that would lead the defendants to believe they were not free to leave. Analogously, in the instant case, the defendant ran from the street corner before the police chased after him. We find this significant because it shows that it was not the police conduct that coerced the defendant into fleeing, but rather the defendant’s belief that he was free to leave the street comer.