People v. Mamon

Levin, J.

{separate opinion). I agree with the author of the dissenting opinion that

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,[ 1 ]

and that the record would support a finding that that was what was communicated to Mamón in the instant case. 2 _

*30 The implication of Chesternut is that if Mamón was "seized by the police before he discarded the [red case] containing the controlled substance,” 3 the evidence should be suppressed. The record, whatever its inadequacies, supports a finding that a reasonable person would not have thought he was "at liberty to ignore the police presence and go about his business” 4 after Officer Patrick "started running after him.” 5 It was not until after Patrick started running after Mamón that he took the red case out of his pocket and threw it to the ground. 6

There was no finding at the trial court level, however, whether, in the words of the United *31 States Supreme Court in Chesternut, " 'in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,’ ” 7 or that the police conduct here would "have communicated to the reasonable person an attempt to capture or otherwise intrude upon [his] freedom of movement,” 8 or "that he was not at liberty to ignore the police presence and go about his business.” 9

The magistrate bound Mamón over, finding that there was probable cause to charge him, and stating that whether there had been a violation of the Fourth Amendment "can be raised at a subsequent hearing,” adding, somewhat presciently in April, 1987, approximately one year before Chesternut was decided: "You will even have the advantage of whatever changes in the law occurs [sic] between now and then.”

The Recorder’s Court judge granted Mamon’s motion to dismiss the information, stating only, "I’m convinced that Shabaz[ 10 ] is controlling . . . .” Shabaz is not controlling. 11 Chesternut is.

The evidentiary record was made at the prelimi *32 nary examination. The Fourth Amendment issue has not been addressed in a separate hearing focusing on the question whether the evidence seized should be suppressed. 12 Chesternut was decided after the information was so dismissed by the Recorder’s Court a few months before the Court of Appeals affirmed the dismissal of the information. 13

Under the circumstances, the most appropriate course of action, I believe, is to remand the case to the Court of Appeals with the direction that the cause be remanded by that Court to the Recorder’s Court for the making of a record focusing, in light of Chesternut, on the questions posed 14 in the opinions of the justices filed today, and for findings of fact by the Recorder’s Court and reconsideration by the Court of Appeals of its decision in light of that record and those findings.

Ante, p 27.

Officer Patrick testified on cross-examination as follows:

Q. . . . And you said that you looked over, and the defendant was standing at the comer?

A. Yes, ma’am.

Q. And he took off running?

A. Yes, ma’am.

Q. Did you then pursue him in your car, or what happened?

A. Pursued him on foot.

*30 Q. You jumped out of your car and started chasing after him?

A. Yes, ma’am.

Q. And at that point, he had taken the red case out of his pocket?

A. Yes, ma’am.

Q. Okay.

A. Correction, ma’am. It was before we caught him that he took the case out of his pocket.

Q. Okay. It was before?

A. It was during the chase.

Q. So he took off running; you jumped out of your car, you started running alter him; he took the red case out of his pocket and threw it to the ground; is that right?

A. Yes, ma’am. [Emphasis added.]

Michigan v Chesternut, 486 US 567, 574 ; 108 S Ct 1975 ; 100 L Ed 2d 565 (1988).

Id., p 569.

See n 2.

The author of the concurring opinion states that "it is possible that the defendant tossed the bag aside very shortly after he began running . . . .” Ante, p 21. It appears, however, that Mamón took off running before the officer jumped out of his car and that Mamón discarded the red case "during the chase” after the officer "started running after him.” See n 2.

The author of the concurring opinion further states that "it is not clear just what actions of the officer were made known to him before he discarded the bag . . . .” Id. The officer stated, however, that he started running after Mamón before he took the red case out of his pocket and threw it on the ground. See n 2.

Michigan v Chesternut, n 3 supra, p 573 , quoting United States v Mendenhall, 446 US 544, 554 ; 100 S Ct 1870 ; 64 L Ed 2d 497 (1980) (Stewart, J.).

Id., p 575.

Id., p 569. Chesternut is not adverted to in Brower v Inyo Co, 489 US 593 ; 109 S Ct 1378 ; 103 L Ed 2d 628 (1989). The language quoted in the lead opinion from Brower is, as the lead opinion acknowledges, dicta.

People v Shabaz, 424 Mich 42 ; 378 NW2d 451 (1985).

The Michigan Constitution provides that "narcotic drugs” seized outside the curtilage of a dwelling house shall not be suppressed:

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. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive *32 or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state. [Const 1963, art 1, § 11.]

There was no motion to suppress or ruling at the trial court level on that question.

The Court of Appeals stated that it believed "that it is clear that defendant in this case was seized as soon as the officers began their chase,” and that because he discarded the red case after he was seized, there was an intrusion into his Fourth Amendment rights. People v Mamon, 173 Mich App 429, 442 ; 435 NW2d 12 (1988).

The author of the concurring opinion states:

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. [Ante, p 20.]