# People v. Mamon

> Michigan Supreme Court · June 20, 1990 · 435 Mich. 1

URL: https://www.frixlaw.com/law-library/cases/9850389

## Case

- **Full name:** People v. Mamon
- **Court:** Michigan Supreme Court
- **Decided:** June 20, 1990
- **Citations:** 435 Mich. 1; 457 N.W.2d 623
- **Precedential status:** Published
- **Opinion:** Concurrence by Brickley
- **Judges:** Brickley, Levin, Boyle, Griffin, Riley, Archer, Cavanagh
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Brickley, J.
(concurring). I agree with the result *16 reached in the lead opinion, 1 but, because I believe a distinction must be drawn between automotive pursuits of pedestrians and those undertaken on foot, I am compelled to write separately.
In Michigan v Chesternut, 486 US 567, 573, 575 ; 108 S Ct 1975 ; 100 L Ed 2d 565 (1988), the United States Supreme Court held that police pursuit of the defendant did not implicate the Fourth Amendment where the police followed the pedestrian defendant in a squad car and did not "attempt to capture or otherwise intrude upon respondent’s freedom of movement.” The Court identified factors which, if present, might have given rise to a contrary conclusion in that case — the use of sirens or flashers, a command to halt, a display of weapons, or an attempt to block the defendant’s path or otherwise affect the speed or direction of defendant’s movement. Chesternut explicitly declined the invitation to hold that "the Fourth Amendment is never implicated until an individual stops in response to the police’s show of authority.” Id., p 572. Rather, the totality of the circumstances presented in an individual case must be examined in order to determine whether a pursuit rises to the level of a Fourth Amendment "seizure.” Id.
I agree that the police actions in this case did not amount to a seizure implicating the protection of the Fourth Amendment. In my judgment, however, the factors which bear on the characterization of an automotive chase of a pedestrian should not be transferred automatically to the context of a foot chase. The lead opinion apparently sees no difference between these two scenarios. Applying the Chesternut factors to this case, the lead opinion finds the factors missing and holds that no *17 seizure occurred. While Chesternut is clearly relevant here, the lead opinion does not distinguish People v Shabaz, 424 Mich 42 ; 378 NW2d 451 (1985), in which we recently held that a pedestrian who was chased by police, first by car and then by foot, was seized for Fourth Amendment purposes. Because we are required to take into account the totality of the circumstances presented in the case before us, Chesternut, supra, p 572 , and because Shabaz is factually closer to the instant case than is Chesternut , I find this omission troubling. The facts of Shabaz are as follows:
The vehicle was proceeding westbound on Clair-mount from Woodward when Officer Surma observed defendant leaving a building at 60 Clair-mount, which is on the north side of Clairmount and which comprises approximately thirty apartments.
Surma observed defendant carrying a small brown paper bag, and walking east on Clairmount toward Woodward Avenue. At the time he observed defendant leaving the building, Surma was in the police vehicle approximately fifty feet from the defendant, and the police car was moving toward defendant. Defendant looked in Surma’s direction and began "stuffing a paper bag like under his vest,” or "in his pants.” The driver, Officer Scotsky, slowed the vehicle, and the defendant and the scout car passed each other. When the officers’ vehicle had nearly come to a complete stop, defendant "took off running.” Surma testified: "We started slowing down to take a better look at what he was doing. As we were coming to a stop, he immediately started to run.”
Officer Scotsky put the car in reverse and backed the vehicle to the corner of Woodward and Clairmount. When the car was approximately ten to fifteen feet from defendant, Surma got out of the car and chased the defendant south on Woodward while Officer Hayes "backed up” Surma. *18 Surma chased defendant a distance of about three storefronts, and observed defendant enter a doorway at 9037 Woodward. During the chase, Surma did not observe anything in defendant’s hands. By the time Surma reached the doorway the defendant had entered, defendant was coming out. Surma grabbed defendant and, as the defendant tried to push away, Surma "tossed him towards Officer Hayes,” and Hayes subdued the defendant. While chasing the defendant, Hayes had pulled his service revolver and, when defendant and Hayes collided, the firearm discharged, although no one was struck. Surma then went into the vestibule of the building and retrieved a closed, brown paper bag. Surma did not know what was in the bag until after he retrieved it. The bag contained a "Smith & Wesson, four inch blue steel revolver, .357.” [Shabaz, supra, pp 46-48 .]
Although we held that Shabaz’ flight from the unmarked squad car did not furnish sufficient suspicion for a stop, our opinion did not state that the "stop” occurred at the time Shabaz began to run. In my opinion, Shabaz was not seized until the police, after shifting the car into reverse to follow Shabaz, got out of the vehicle ten to fifteen feet from Shabaz and ran after him. Such behavior, in my judgment, communicates "to the reasonable person an attempt to capture . . . .” Chester-nut, supra, p 575. Officers in a squad car who do not manifest an intention to restrict a pedestrian’s movement may be intimidating to a pedestrian, but, absent efforts to restrict the pedestrian’s movement with the police car, they do not communicate an immediate ability to effectuate a stop. By contrast, a constable jumping out of a car to give chase on foot just a few feet behind a pedestrian can, even absent a command to halt, convey to a reasonable person not only an intent to detain, but also that detention is imminent. It is the combina *19 tion of these factors — a communicated intent and ability to detain — which, in my opinion, forms the basis of our finding in Shabaz that the defendant was seized within the meaning of the Fourth Amendment. 2
The question before us now is whether this case is distinguishable from Shabaz on the issue whether the defendant was "seized.” While I agree with the lead opinion that the ruling of the trial court should not be disturbed absent clear error, it is my judgment that the defendant has not brought out facts to show that the combination of the officers’ communicated intent and ability to "seize” the defendant would have caused the defendant, from the viewpoint of a reasonable person, to believe "that he was not free to leave,” Chesternut, supra, p 573 , quoting United States v Mendenhall, 446 US 544, 554 ; 100 S Ct 1870 ; 64 L Ed 2d 497 (1980), or to perceive an attempt to capture or other interference with his freedom of movement. Chesternut, supra, p 575 . 3
According to the preliminary examination testi *20 mony of Officer Patrick, 4 the defendant, unlike Shabaz, started to run before there had been any indication that he was being pursued. Thus, at the moment the defendant started to run, he was not seized. Thereafter, the police stopped the car, and Officer Patrick got out and began to run after the defendant. Eventually, Officer Patrick caught up with the defendant. It is clear that at this point, the "seizure” of the defendant had been accomplished. Between the time the defendant started to run and the time he was physically captured by the police, two significant events occurred: the defendant was "seized” under Chesternut , and the defendant discarded the drugs. It is not clear from the record, however, whether the defendant was seized before he discarded the bag. The record does not indicate (1) how long it took for the police car to pull over and for Officer Patrick to get out of the car, (2) how far away Officer Patrick was when he began to chase the defendant, (3) how far away Officer Patrick was when the defendant discarded the bag of drugs, or (4) whether there were other persons or activities present in the area. All these factors bear on the ultimate question — whether the defendant, from the perspective of a reasonable person, would have perceived an attempt to capture him or other interference with his freedom of movement.
From the scant record before us, I am reluctant to conclude that the defendant was seized the moment Officer Patrick left his car. There is nothing before us to suggest that the defendant, who was sprinting away from the police car, could reasonably perceive (1) that Officer Patrick had *21 left his car, and (2) that Officer Patrick was chasing him rather than responding to something else the officers had seen. Since it is possible that the defendant tossed the bag aside very shortly after he began running, and since it is not clear just what actions of the officer were made known to him before he discarded the bag, I conclude that, on the record before us, defendant has not established that he was "seized” when he jettisoned the pouch.
No Fourth Amendment seizure having been proven to have occurred at that moment, the contents of the bag are not suppressible as the fruit of any illegal detention of the defendant. The defendant does not — and on these facts could not— argue that the officers’ retrieval of the pouch flowed from any allegedly illegal police activity other than the pursuit by Officer Patrick preceding the defendant’s act of discarding the drugs. Because this pursuit did not, in my opinion, constitute a "seizure,” I find it unnecessary to reach the standing issue first discussed in the lead opinion. 5
For these reasons, I concur in the result of the lead opinion.
Archer, J. (dissenting).
i
We granted leave to appeal to determine whether the trial court erred in quashing the information and in dismissing this case. The majority believes the trial court did so err and, as a result, would reverse the decision of the Court of Appeals and remand the instant case to the trial *22 court. I write separately to express my disagreement.
ii
A
The defendant in this case filed a motion to quash the information, or in the alternative to suppress the evidence, and for an evidentiary hearing. The motion to quash was based on defendant’s argument that he was unlawfully seized. In contrast, the alternative motion to suppress concerned only the seizure of cocaine rocks allegedly dropped by the defendant. The trial court granted defendant’s motion to quash and ordered dismissal of the case, stating, "I’m convinced that Shabazz [sic] is controlling and, accordingly, your motion is granted.” In light of this ruling, the issue whether the evidence should have been suppressed was never raised or reached. Hence, the motion to suppress has not been litigated and is not at issue for this Court’s consideration.
The principal duty of this Court in this case is to determine whether the trial court erred in granting defendant’s motion to quash. The standard of review for motions to quash was stated by this Court in People v Medley, 339 Mich 486, 492 ; 64 NW2d 708 (1954), as follows:
Does the evidence justify, as a matter of law, the holding of the trial judge that the examining magistrate was guilty of an abuse of discretion?[ 1 ]
In determining whether the trial court has com *23 mitted error, this Court must determine whether that court properly granted the motion to quash on the basis of a sound and appropriate belief that there was an abuse of discretion by the magistrate, or whether the trial court merely substituted its judgment for that of the magistrate. See People v Talley, 410 Mich 378 ; 301 NW2d 809 (1981).
The question whether there has been an abuse of discretion by the magistrate is governed by People v Charles O Williams, 386 Mich 565, 572 ; 194 NW2d 337 (1972), wherein this Court held:
"In order to have an 'abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.” [Quoting Spalding v Spalding, 355 Mich 382, 384-385 ; 94 NW2d 810 (1959).]
B
The evidence in this case justifies, as a matter of law, the trial judge’s decision to quash the information, and hence, that the magistrate abused his discretion. The trial court decision resulted from the court’s direct application of the existing legal standard governing this issue found in People v Shabaz, 424 Mich 42 ; 378 NW2d 451 (1985).
In Shabaz , this Court held that a defendant’s presence in a high crime neighborhood, although a valid consideration in assessing reasonable suspicion, would not establish grounds for an investigative stop. Further, this Court opined that the police officer's observation of the defendant concealing a bag in his jacket did not amount to a particularized suspicion of possessory wrongdoing, only a generalized one. Finally, this Court held *24 that the defendant’s flight at the approach of the police, did not, by itself, in the circumstances of that case, support a reasonable suspicion. "Although it is uncontroverted that flight may be a factor to be considered in ascertaining whether there is reasonable suspicion to warrant a Terry[ 2 ] stop, . . . flight alone is not a reliable indicator of guilt without other circumstances to make its import less ambiguous.” Id. at 62 . Further,
[c]ertainly it is reasonable to conclude that the defendant’s flight away from the vehicle carrying the police officers might reasonably have heightened the officer’s general suspicion that the defendant must have had something to hide and wished to avoid contact with the occupants of the vehicle. But heightened general suspicion occasioned by the flight of a surveillance subject does not alone supply the particularized, reasoned, articulable basis to conclude that criminal activity was afoot that is required to justify the temporary seizure approved in Terry [v Ohio, 392 US 1 ; 88 S Ct 1868 ; 20 L Ed 2d 889 (1968)]. [Id. at 62-63.]
Contrary to the assertion of the majority, that the Shabaz Court "assumed, without deciding . . . that the police chase constituted a seizure,” the Shabaz Court stated:
The officers did not approach Shabaz merely for the purpose of questioning him, after first identifying themselves as police officers, nor was the defendant free to "go on his way.” . . . The prosecutor concedes as much, acknowledging in his brief and in oral argument, that the police-citizen encounter in this case was an "investigatory pursuit and stop” .... [Id. at 58-59.]
*25 [T\he pursuit itself by the officers was effectively the seizure of the defendant. ... As soon as the officers began their pursuit, defendant’s freedom was restricted. If he stopped running, he would not be free to leave. Events proved that. [Id. at 66. Emphasis added.]
In the present case, the magistrate stated the following:
Well, as I interpret the testimony, the defendant had a perfect right to be on that corner. He wasn’t using the phone or anything else. He had a perfect right to leave if he wanted. But I sun not aware of anything in the law that would prevent the officer from getting out of his car and leaving in the same direction if the defendant was leaving at a high rate of speed and the officer also left at a high rate of speed. Still nothing wrong with it. [Emphasis added.]
In my view, however, this Court’s decision in Shabaz points to several things that were wrong with it. First, a citizen’s mere presence in a high crime neighborhood, such as the Log Cabin and Grove area, coupled with that citizen’s flight at the sight of the police, does not amount to the "particularized, reasoned, [and] articulable” suspicion necessary to justify a temporary seizure. Second, police pursuit in Michigan can constitute an effective seizure under the Fourth Amendment.
The facts in this case were nearly identical to those in Shabaz . Furthermore, Shabaz unquestionably represents the present state of the law in *26 Michigan. 3 Therefore, I would hold that the magistrate’s decision to bind the defendant over in light of Shabaz was "not the exercise of judgment but the defiance thereof, not the exercise of reason but rather of passion or bias,” see Williams, supra at 572 , and was hence, an abuse of discretion. 4
hi
The issues before the lower courts in this case were, in light of this Court’s ruling in Shabaz , whether under the Fourth Amendment of the United States Constitution a seizure occurred and, if so, whether the seizure was lawful. The constitutional concepts applicable in resolving these issues are twofold. The first involves a police officer’s ability and authority to approach any citizen on the street and pose questions about any observed behavior without implicating, whatsoever, the Fourth Amendment. The second concerns exactly when and at what point an officer’s intrusion becomes a detainment, hence rising to the level of Fourth Amendment infringement.
The United States Supreme Court in United States v Mendenhall, 446 US 544, 554 ; 100 S Ct *27 1870 ; 64 L Ed 2d 497 (1980), attempted to objectively answer this question when it wrote, "[a] person has been 'seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Further, the Court in Terry, supra reasoned, "[i]t must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized’ that person.” Finally, "[o]nly 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 . (Emphasis added.)
In this case, Officer Patrick did not physically restrain Mr. Mamón while chasing after him. Thus, the inquiry is whether Officer Patrick’s actions amounted to "a show of authority,” which, in turn, restrained the defendant’s freedom to walk away. To this end, the United States Supreme Court in Chesternut, supra, included police-activated sirens or flashers, verbal commands of halt, or the display of a weapon, as examples of how police officers may communicate an intent to capture, and hence seize, a fleeing citizen. I do not believe the Court intended this list to be exhaustive, however. In my view, the presence of a uniformed police officer emerging from a marked police vehicle into an unrestrained, full sprint in pursuit of a citizen, communicates two things: a show of police authority and an intent to capture or detain the person.
Although I agree that Officer Patrick should not have been required, under the Fourth Amendment, to do nothing and simply watch as Mamón took flight and disappeared, my concern involves the question exactly what actions are constitution *28 ally permissible. For example, the police officer in Chesternut did not, as in the case at bar, immediately charge after the fleeing defendant. Instead, the officers chose to heighten their observation of the defendant, trailing quietly, while remaining inside the police vehicle, and, hence, displaying no objective intent to capture. Against this factual backdrop, the Supreme Court held that the officer’s cautious decision "to see where [the defendant] was going,” id. at 569 , could not have communicated to the fleeing defendant that he was not free to ignore the police and leave. Indeed, the officer in Chesternut did not get out of the police vehicle or in any way demonstrate a desire to capture or detain until the defendant discarded what the officer suspected to be packets of controlled substances. At that point, not only did the officer have a "particularized, reasoned, [and] articulable” suspicion, but also probable cause for arrest.
In the case at bar, Officer Patrick, likewise, would not have crossed the line intruding upon Mamon’s Fourth Amendment rights had he chosen merely to trail Mamón "to see where he was going.” 5 Such observation, even at close range, is not intrusive enough to unequivocally communicate a desire to detain or capture. Clearly, Officer Patrick’s decision to emerge from a marked police vehicle in uniform, for the purpose of aggressively chasing after Mamón, communicated more than *29 an intent to observe and approach for questioning. Officer Patrick unquestionably desired to capture and detain Mr. Mamón. Mamón simply was not free to ignore the police and proceed upon his way unrestrained, see Florida v Royer, 460 US 491 ; 103 S Ct 1319 ; 75 L Ed 2d 229 (1983), after the chase ensued. In accordance with Shabaz , Officer Patrick’s act of aggressive pursuit demonstrated, in my view, an unjustified act impermissibly interfering with the defendant’s Fourth Amendment right to be free from unreasonable seizures.
Hence, under the circumstances of this case, I believe the trial court appropriately granted the defendant’s motion to quash. Accordingly, I would affirm the Court of Appeals.
Cavanagh, J., concurred with Archer, J.
References to the "lead opinion” are to the opinion of Chief Justice Riley.
This situation can be contrasted with those in which either of the two factors mentioned above is missing. No seizure would be present where an officer manifests an intention to detain where detention cannot be accomplished. For example, in my opinion, it would border on the absurd to suggest that a police officer who yells "halt!” out of a fourth floor window at someone on the street who mounts a motorcycle and speeds away into traffic has "seized” the driver. Conversely, it is obvious that no seizure would be present where an officer merely has the ability to detain a citizen but displays no intent to do so. (These examples assume, of course, that no actual, physical detention has been accomplished.)
In my view, the burden of proof was on the defendant to show by a preponderance of the evidence that a "seizure” occurred. See generally 4 LaFave, Search & Seizure (2d ed), §§ 11.2(b), 11.2(c). In addition, I believe that Chesternut did not articulate a new legal standard, but rather applied the familiar Mendenhall standard in the context of a police chase. For this reason, I disagree with Justice Levin that the defendant is entitled to a second bite at the seizure issue. The defendant had both notice and an opportunity to demonstrate that, under the totality of the circumstances, he could reasonably have believed that he was not free to leave.
Officer Patrick’s testimony is the only evidence in the record before us. He was the only witness at the preliminary examination, and the defendant waived the production of additional witnesses at the subsequent hearing.
We discussed the standing issue in Shabaz only because we found that the defendant in that case had been "seized” before he parted with the evidence whose suppression was at issue.
In other words, a trial court grant of a defendant’s motion to quash the information is, in effect, a determination that there was an abuse of discretion by the magistrate in binding the defendant over for trial.
Terry v Ohio, 392 US 1 ; 88 S Ct 1868 ; 20 L Ed 2d 889 (1968).
Shabaz was not rejected, modified, or questioned by the United States Supreme Court in Michigan v Chesternut, 486 US 567 ; 108 S Ct 1975 ; 100 L Ed 2d 565 (1988). In that case, the Supreme Court specifically stated, "We, of course, intimate no view as to the federal constitutional correctness of . . . [Shabaz].” Id. at 575, n 8. Further, Chesternut affirmed the "case-by-case” approach to determinations of whether seizures have occurred, stating, "[rjather than adopting either rule proposed by the parties, ... we adhere to our traditional contextual approach, and determine only that, in this particular case, the police conduct in question did not amount to a seizure.” Id. at 572-573 . (Emphasis added.)
The trial court decision here also was not a "substitution of its judgment.” The facts here were undisputed. Hence, the only task before both the magistrate and the trial court in this case was the application of the legal standard to the facts. Accordingly, it is my opinion that the trial court, rather than substituting its judgment, rectified the magistrate’s discretionary error.
By this, I do not intend to imply, as intimated by the majority, that the actions of the police in Chesternut represent the only permissible actions that can be taken in response to a fleeing citizen. However, I do believe the facts in Chesternut are illustrative of passive yet effective surveillance which does not unduly intrude upon the Fourth Amendment. Thus, I venture to say that with the passage of time, the factual parameters governing this issue will emerge and provide this and other courts with a more consistent framework. Chesternut merely provides an example from which we can presently hypothesize.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9850389. Public record. Not legal advice.