People v. Sangster

Michigan Court of Appeals

People v. Sangster

333 N.W.2d 180, 123 Mich. App. 101

CourtMichigan Court of Appeals

DecidedFebruary 9, 1983

DocketDocket 55036

StatusPublished

Cited by10 cases

This text of 333 N.W.2d 180 (People v. Sangster) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Sangster, 333 N.W.2d 180, 123 Mich. App. 101 (Mich. Ct. App. 1983).

Pincite

Opinions

Bronson, J.

I agree with the dissent that defendant’s conviction must be reversed due to the untimely decision to allow evidence of defendant’s prior convictions to be used for impeachment purposes.

I write separately to state my disagreement with the dissent’s treatment of the search and seizure issue. A drawn gun does not transform a stop into an arrest. In Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), Chief Justice Warren stated:

"We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon [104]*104that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry, supra, p 23.

Terry allowed significant encroachments on privacy rights in order to protect police officers in the course of their duties. To achieve this measure of protection, Terry permitted officers to "stop and frisk” a subject, under circumstances in which probable cause did not exist, without offending the Fourth Amendment. The drawing of a gun does little to add to the intrusiveness of a frisk but may add greatly to the protection afforded the officer during the stop. Protective measures, such as drawing a gun on approaching a car whose driver may be armed, do not transform a stop into an arrest; the officer may increase the risk of being shot, however, by leaving the gun in its holster. United States v Jackson, 652 F2d 244 (CA 2, 1981).

In addition, I do not think it appropriate, in Fourth Amendment analysis, to attempt to devine what a police officer would have done had a suspect not fled. It is not the planned intrusion on privacy which must be examined, it is the actual one. See Terry, supra, p 21, fn 16.

I must also disagree with the statement that "the weapon seized by the police was clearly obtained as a result” of the allegedly illegal intrusion although I do agree that the problem must be analyzed by using the "fruit of the poisonous tree” doctrine. The trial court must ask whether the act of throwing the gun from the car was a result of the allegedly illegal action. In doing so, it cannot overlook the possibility that the discarding of the gun was the result of an unreasonable response to the situation by the defendant. This Court cannot conclude, as a matter of law, that the discarding of [105]*105the gun was the fruit of the allegedly illegal stop. All questions concerning the suppresssion of evidence remain open on our remand to the trial court.

Reversed and remanded.

R. J. Snow, J., concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

Bronson, J.

I agree with the dissent that defendant’s conviction must be reversed due to the untimely decision to allow evidence of defendant’s prior convictions to be used for impeachment purposes.

I write separately to state my disagreement with the dissent’s treatment of the search and seizure issue. A drawn gun does not transform a stop into an arrest. In Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), Chief Justice Warren stated:

"We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon [104]*104that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry, supra, p 23.

Terry allowed significant encroachments on privacy rights in order to protect police officers in the course of their duties. To achieve this measure of protection, Terry permitted officers to "stop and frisk” a subject, under circumstances in which probable cause did not exist, without offending the Fourth Amendment. The drawing of a gun does little to add to the intrusiveness of a frisk but may add greatly to the protection afforded the officer during the stop. Protective measures, such as drawing a gun on approaching a car whose driver may be armed, do not transform a stop into an arrest; the officer may increase the risk of being shot, however, by leaving the gun in its holster. United States v Jackson, 652 F2d 244 (CA 2, 1981).

In addition, I do not think it appropriate, in Fourth Amendment analysis, to attempt to devine what a police officer would have done had a suspect not fled. It is not the planned intrusion on privacy which must be examined, it is the actual one. See Terry, supra, p 21, fn 16.

I must also disagree with the statement that "the weapon seized by the police was clearly obtained as a result” of the allegedly illegal intrusion although I do agree that the problem must be analyzed by using the "fruit of the poisonous tree” doctrine. The trial court must ask whether the act of throwing the gun from the car was a result of the allegedly illegal action. In doing so, it cannot overlook the possibility that the discarding of the gun was the result of an unreasonable response to the situation by the defendant. This Court cannot conclude, as a matter of law, that the discarding of [105]*105the gun was the fruit of the allegedly illegal stop. All questions concerning the suppresssion of evidence remain open on our remand to the trial court.

Reversed and remanded.

R. J. Snow, J., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

333 N.W.2d 180, 123 Mich. App. 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-sangster-michctapp-1983.

Opinions

Related

Cite This Page — Counsel Stack