People v. Bloxson , 205 Mich. App. 236 ( 1994 )

Holbrook, Jr., P.J.

Defendant was charged with possession with intent to deliver less than fifty grams of a mixture containing cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), carrying a concealed weapon, MCL 750.227; MSA 28.424, resisting and obstructing a police officer, MCL 750.479; MSA 28.747, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Following a suppression hearing, the circuit court determined that there was an unreasonable seizure and suppressed the relevant evidence. The prosecutor appeals as of right. We affirm.

The parties do not dispute the facts. Jaime Corona of the Michigan State Police was assigned to the drug interdiction unit. Traveling to various public transportation stations to thwart the transport of narcotics and weapons on public carriers, members of the drug interdiction unit were trained to observe certain characteristics in people. On June 9, 1992, Detective Corona and two detectives from the Ingham County Sheriffs Department boarded a westbound bus in Lansing. The detectives were casually dressed and were not in uniforms. The three detectives did not display any guns. The two county detectives sat in the rear of the bus.

There were fifteen to twenty people randomly seated on the bus. When Detective Corona entered the bus, two people immediately caught his attention. The detective walked up to the defendant, identified himself by showing his credentials, and asked to speak with him. The detective stated that he was making citizen contact with people because the police were aware that people were using buses to transport weapons and narcotics. The detective asked the defendant if he had any weapons, and the defendant said, "No.” The detective observed the defendant’s nervousness, evidenced by the defendant’s shaking hands, his feet tapping on the ground, and his watery eyes. The detective also saw a duffel bag on the seat next to the defendant. The bag was partially unzipped, and the defendant’s hand covered the open end of the bag. Detective Corona again asked if the defendant had any weapons, and the defendant said, "No.” The detective did not advise the defendant that he could decline to speak with the detective. Detective Corona then asked the defendant whether he could look in the bag. The defendant said, "I really don’t see the reason.” The record does not indicate whether the defendant was advised that he had the right to refuse consent to a search of the bag. The detective asked the defendant why he was acting nervously. The detective then told the defendant that he sensed that the defendant had something illegal in the bag and that he should just be honest and let him know what was in the bag. During this questioning, the detective was standing in the bus aisle next to the seat in front of the defendant. The defendant then admitted that he had a gun in the bag and removed his hand to reveal it. Because the defendant kept returning his hand to the bag, the detective told him he was under arrest and asked him to stand. The defendant stood and physically confronted the detective. The other two detectives helped arrest the defendant. The other suspect who initially caught Detective Corona’s attention was arrested also.

In granting the defendant’s motion to suppress the evidence, the circuit court took into account the physical position of the detective standing in the bus aisle and determined that a reasonable person would not feel free to leave. The court also noted that the defendant neither was advised that he was free to leave nor was told that he did not have to consent.

The trial court’s decision to grant a motion to suppress evidence will not be reversed unless it is clearly erroneous. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983); People v Muro, 197 Mich App 745, 747; 496 NW2d 401 (1993).

The Supreme Court in People v Faucett, 442 Mich 153, 157-158; 499 NW2d 764 (1993), recently stated:

The Fourth Amendment, then, protects citizens from unreasonable searches and seizures. Terry v Ohio, 392 US 1, 9; 88 S Ct 1868; 20 L Ed 2d 889 (1968); United States v Brignoni-Ponce, 422 US 873, 878; 95 S Ct 2574; 45 L Ed 2d 607 (1975); United States v Sharpe, 470 US 675, 682; 105 S Ct 1568; 84 L Ed 2d 605 (1985); People v Shabaz, 424 Mich 42, 52; 378 NW2d 451 (1985). The reasonableness of a Fourth Amendment seizure balances the governmental interest that justifies the intrusion against an individual’s right to be free of arbitrary police interference. Terry, supra at 20-21; Brignoni-Ponce, supra.

In addition, the federal constitutional protections against unreasonable searches and seizures have been extended to state proceedings through the Due Process Clause of the Fourteenth Amendment. See Mapp v Ohio, 367 US 643, 655; 81 S Ct 1684; 6 L Ed 2d 1081 (1961); People v Nash, 418 Mich 196, 211; 341 NW2d 439 (1983) (opinion of Brickley, J.); People v Burrell, 417 Mich 439, 448, n 15; 339 NW2d 403 (1983). Because the Michigan Constitution does not provide more protection than its federal counterpart, under the circumstances of this case, federal law controls our inquiry. Thus, consideration of defendant’s motion for exclusion of the marijuana necessarily implicates his federal constitutional rights. See People v Toohey 438 Mich 265, 270-271; 475 NW2d 16 (1991), and People v Collins, 438 Mich 8, 25-31; 475 NW2d 684 (1991). [Emphasis in the original.]

Similarly, federal law is applicable in determining the issue presented in the present case.

The court in United States v Johnson, 910 F2d 1506, 1508 (CA 7, 1990), stated the extent of Fourth Amendment protections in the three categories of encounters between the police and citizens:

The first category is an arrest, for which the Fourth Amendment requires that police have probable cause to believe that a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment 'seizure,’ but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen’s liberty, and is characterized by an officer seeking the citizen’s voluntary cooperation through non-coercive questioning. This is not a seizure within the meaning of the Fourth Amendment. [Citations omitted.]

First, we must determine whether the defendant was seized within the meaning of the Fourth Amendment. In Florida v Bostick, 501 US 429; 111 S Ct 2382; 115 L Ed 2d 389 (1991), the United States Supreme Court held that drug interdiction agents may approach individuals on a bus, ask them questions, and request consent to search their luggage as long as a reasonable person would understand that he could refuse to cooperate. In Bostick, two officers boarded a bus and asked to inspect the defendant’s ticket and identification. The ticket matched the defendant’s identification. The officers identified themselves as narcotics agents and explained that they were looking for illegal drugs. They specifically advised the defendant that he had the right to refuse consent. The agents requested the defendant’s consent to search his luggage. The defendant consented to the search, and contraband was found in one of his bags. Although one of the officers carried a zipper pouch containing a pistol, it was neither removed from the pouch nor used in a threatening manner.

The United States Supreme Court in Bostick held that the Florida Supreme Court had erred in focusing on whether the defendant was free to leave and in adopting a rule that a police drug interdiction encounter on a bus necessarily constitutes an unreasonable seizure per se. Id. at 435-436, 439-440. Indeed, even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual as long as they do not convey a message that compliance with their requests is required. Id. at 434-435. In Bostick, it was stated that Immigration & Naturalization Service v Delgado, 466 US 210; 104 S Ct 1758; 80 L Ed 2d 247 (1984), is dispositive in determining whether police conduct is coercive. In Delgado, agents of the Immigration and Naturalization Service visited factories to question employees with respect to whether they were illegal aliens. Ins agents stood near the buildings’ exits while other agents questioned workers on the job. The confinement that the workers felt was not the result of police activity, but was the result of the workers’ voluntary obligations to their employers. Id. at 218. Consequently, there was no seizure in Delgado, because the agents’ conduct gave the employees no reason to believe that they would be detained if they answered the questions honestly or if they simply refused to answer. Id.

When determining the reasonableness of a seizure on a bus, courts must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. Bostick, supra at 402. The Court refrained from deciding whether a seizure occurred in Bostick, because the trial court had made no express findings of fact and because the Florida Supreme Court improperly had based its decision on the sole fact that the encounter took place on a bus.

Other federal courts have applied these principles in considering whether encounters between the police and individuals constituted a lawful seizure. In United States v Bloom, 975 F2d 1447, 1453-1456 (CA 10, 1992), the court decided that a seizure of the defendant occurred when narcotics agents questioned him concerning whether he was transporting drugs while the defendant was confined in a private train compartment without first having been advised that he was free to decline the agents’ request or to terminate the encounter. Likewise, in United States v Wilson, 953 F2d 116 (CA 4, 1991), an officer’s prolonged and persistent questioning of the defendant, who had indicated his unwillingness to continue the encounter, and the officer’s following and questioning of the defendant through an airport constituted investigative detention. However, in United States v Gonzales, 979 F2d 711 (CA 9, 1992), the court determined that the district court clearly did not err in ruling that the seizure on a bus of a bag containing marijuana was lawful where the defendant was not advised of his right to terminate the encounter, the agent who questioned the defendant was in uniform and armed, and there was no evidence that the defendant knew the agent could ask him to get off the bus if the defendant refused to answer questions. In addition, the court in United States v Washington, 957 F2d 559, 562 (CA 8, 1992), agreed with the district court’s determination that there was no coercion or restraint of liberty where the defendant was not physically detained or restrained and the defendant voluntarily talked to the detectives and produced identification and a train ticket.

After comparing the above cases with the present case and applying the principles espoused in Bostick, we believe that the police conduct in this case would convey to a reasonable person that he was not at liberty to ignore the police presence and go about his business. 501 US 437, citing Michigan v Chesternut, 486 US 567, 569; 108 S Ct 1975; 100 L Ed 2d 565 (1988). The detective in the present case asked the defendant if he had any weapons, and despite a negative response, the detective again asked if the defendant had any weapons. Although the confinement on the bus was not the result of police conduct, Bostick, supra at 436, one circumstance to consider is the fact that the detective was standing over the defendant and between the defendant and the bus door. Like the officers in Bostick, the detective in this case did not threaten the defendant by displaying a gun. However, unlike Bostick, supra at 432, the detective failed to. advise the defendant that he had the right to refuse consent. The detective asked to look in the defendant’s bag and the defendant denied the request. We disagree with the prosecutor’s contention that the defendant’s response at this point proves that a reasonable person would know that he was free to decline the detective’s request. The repetitive, potentially incriminating questions undoubtedly would lead a reasonable person to believe that he was less able to terminate the encounter. Wilson, supra. Considering all the circumstances surrounding the encounter, we conclude that the detective’s conduct communicated to the defendant, as it would to any reasonable person, that he was not free to decline the requests. Thus, the encounter involved a restraint on liberty sufficient to become a seizure of the defendant that necessarily implicated the defendant’s Fourth Amendment rights as set forth in Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).

Next, we must determine whether the seizure was based on a reasonable suspicion supported by articulable facts that criminal activity might be afoot. Id. at 30; United States v Sokolow, 490 US 1, 7; 109 S Ct 1581; 104 L Ed 2d 1 (1989). The standard of review to be applied to the lower court’s factual findings concerning the detective’s suspicion of criminal activity is whether the findings are clearly erroneous, but the question whether such suspicion was reasonable under the Fourth Amendment is a question of law that we review de novo. Bloom, supra at 1456. Like the district court in Bloom, the lower court in this case did not consider specifically whether the seizure was supported by a reasonable suspicion. However, because the facts are undisputed, we must determine as a matter of law whether Detective Corona’s suspicion was reasonable under the Fourth Amendment. Id. Accordingly, we must consider the totality of the circumstances in deciding the legality of the seizure. Sokolow, supra at 8.

There was a reasonable suspicion to justify an investigative stop in United States v Glover, 957 F2d 1004, 1010-1011 (CA 2, 1992), where the defendant was traveling on an early morning express bus that had been used by drug carriers to transport narcotics from a "source city” of narcotics for western New York. When the defendant left the bus, he was sweating profusely and was nervously looking around the bus terminal. The defendant entered a different terminal than the other passengers in an extremely slow manner while continually scanning the entire terminal. When confronted by the officers, the defendant produced two pieces of identification that bore different addresses. Similarly, in Washington, supra at 563, the court found that the police had a reasonable suspicion to justify the investigative stop where the codefendant had traveled from a known source city for drugs and paid for a one-way train ticket in cash. The codefendant lived within two blocks of the defendant, arrived on the same train with him, and talked with him in the station lobby, yet denied knowing the defendant. The codefendant also denied ownership of a suitcase that the detective had seen him carry into the train station. Also, in United States v Manuel, 791 F Supp 265, 269 (D Kan, 1992), the district court found that there were articulable facts justifying the investigative stop where the defendant arrived on a bus and was visiting a person whose last name and address he did not know. The defendant was supposed to dial a telephone number given to him so that someone could pick him up, and he did not know the contents of a package he was carrying that was wrapped in Christmas paper in late January.

On the other hand, the court in Bloom, supra at 1458-1459, decided that no reasonable suspicion of criminal activity existed to justify the investigative detention of a train passenger in his private compartment. The defendant in Bloom appeared nervous and somewhat agitated in the presence of the Drug Enforcement Administration agents. One of the agents was visibly armed. The agents identified themselves, and the defendant agreed to speak with them. After confirming the defendant’s travel plans, one of the agents told the defendant that he had a problem on board the train with people carrying drugs in their luggage. The defendant declined consent to a search of his luggage and stated that he was taking the remains of his mother to New York for burial. The agents checked the defendant’s story with the train attendant. The agents then seized the defendant’s luggage over his objection.

The court in Wilson, supra at 123-127, also found that the police did not have a reasonable suspicion to justify an investigative stop where the officer observed a bulge in the defendant’s coat pocket, the defendant glanced over his shoulder a few times when he walked through the airport terminal, and the defendant produced only a check-cashing card for identification. The defendant also falsely claimed that he was coming from Boston. The defendant consented to a search of his luggage and of himself, but refused to consent to a search of his coat.

We find that the facts in the present case did not create a reasonable suspicion that criminal activity was afoot. The defendant told the detective twice that he did not have any weapons. The defendant also declined consent to the search of the bag next to him. Under these circumstances, if the police were permitted to disregard the suspect’s attempts to decline consent and to instead persist until reasonable suspicion was created, the Fourth Amendment would be diminished greatly in its intended role as the bulwark against overbearing police conduct. Wilson, supra at 126, citing Terry, supra at 15. Although the defendant appeared to the detective to be nervous, nervousness alone is insufficient to create a reasonable suspicion of criminal activity. United States v $83,900 in United States Currency, 774 F Supp 1305, 1317 (D Kan, 1991).

When Detective Corona entered the bus, the defendant was one of the two people who immediately caught his attention. The detective was trained to observe certain characteristics in people. However, any special observations must be articulated to the courts, and its reasonableness as a basis for the seizure assessed independently of the detective’s subjective assertions. United States v Gooding, 695 F2d 78, 82 (CA 4, 1982). The only characteristic that the detective articulated to the court that made him immediately observe the defendant was that the defendant was seated sideways in his seat and was watching people enter the bus. We believe that the defendant’s actions were consistent with innocent travel and that any degree of suspicion that attached to his actions was minimal. Bloom, supra at 1458, citing Sokolow, supra at 9-10. Only after the detective accused the defendant of carrying something illegal and asked him to be honest did the defendant admit that he had a gun in the bag.

Considering the totality of the circumstances, we believe that the prosecution failed to meet its burden to demonstrate that the seizure was limited sufficiently in scope and duration to satisfy the conditions of the investigative seizure. Florida v Royer, 460 US 491, 500; 103 S Ct 1319; 75 L Ed 2d 229 (1983). We conclude that the detective did not have a reasonable suspicion based on articulable facts to justify the investigative stop. Because Detective Corona seized the defendant without a reasonable suspicion when the detective accused him of criminal activity, the defendant’s subsequent answer that he had a gun in the bag was the tainted fruit of the unlawful seizure of the defendant’s person. Bloom, supra at 1458-1459. Thus, the circuit court did not clearly err in suppressing the evidence. Burrell, supra.

Affirmed.