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Docket Number

Docket No. 99392.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief of the Criminal Division, for the people. Richard Paul Zipser, for defendant.

Judges

PER CURIAM.

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Smart Summary

Summary of Opinion: PEOPLE v SASSON, Docket No. 99392 (Mich. Ct. App. Mar. 7, 1989)

Factual and Procedural Background

Defendant (captioned as Sasson) was charged with possession of over fifty grams of cocaine, in violation of MCL 333.7401(1), (2)(a)(iii); MSA 14.15(7401)(1), (2)(a)(iii). Upon arrival at Detroit Metropolitan Airport on a flight from Fort Lauderdale, police officers observed defendant, followed him, approached him on either side, identified themselves, asked to speak with him "for a minute," and asked to see his airline ticket. Defendant produced his ticket and, when asked whether he had any narcotics, admitted that he did. He was arrested and taken to a DEA office where cocaine was recovered from around his waistband.

At the trial-court suppression hearing, the court concluded the officers' contact constituted a Terry stop (a seizure) because the officers never told defendant he was free to leave and because the request for an airline ticket was viewed as a further example of detention. The trial court found no reasonable suspicion to justify a Terry stop, suppressed the narcotics evidence, and dismissed the case. The People appealed as of right. The Court of Appeals reversed and remanded.

Legal Issues Presented

Whether the officers' approach and questioning of defendant at the airport amounted to a Fourth Amendment seizure (a Terry stop) requiring objective reasonable suspicion.
Whether the trial court's suppression ruling was clearly erroneous under the applicable standard of review for motions to suppress.

Arguments of the Parties

People's Arguments

The contact between the officers and defendant was a permissible police encounter in a public place, short of a Terry stop, and did not constitute a Fourth Amendment seizure.

Defendant's Arguments

Defendant contended the officers subjected him to a Terry stop without the reasonable suspicion required under Terry v. Ohio, and therefore his admission and the narcotics should be suppressed as fruits of an unlawful seizure.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Terry v Ohio, 392 U.S. 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968)	Framework for brief investigative stops: not all police-citizen contacts are seizures; reasonable suspicion is required for a Terry stop.	Used as the baseline rule distinguishing seizures from consensual encounters; the court evaluated whether the encounter rose to a Terry stop.
City of Pontiac v Baldwin, 163 Mich. App. 147, 150; 413 N.W.2d 689 (1987)	Statement that the Fourth Amendment applies to seizures short of traditional arrests (brief detentions).	Cited to note that Fourth Amendment protections extend to short detentions and therefore are relevant to the analysis.
United States v Mendenhall, 446 U.S. 544, 554; 100 S Ct 1870; 64 L Ed 2d 497 (1980)	Definition of seizure: a person is seized only if a reasonable person would have believed he was not free to leave; examples of circumstances that might indicate a seizure.	Primary analogue: court relied on Mendenhall to conclude the officers' approach, identification, and request for ticket and questions did not amount to a seizure under the Fourth Amendment.
Florida v Royer, 460 U.S. 491, 497; 103 S Ct 1319; 75 L Ed 2d 229 (1983)	Police may approach and ask questions in public places; identifying oneself as a police officer does not by itself convert an encounter into a seizure.	Quoted to support the proposition that mere approach and questioning in a public place, and identifying as police, do not automatically constitute a seizure.
People v Shabaz, 424 Mich. 42; 378 N.W.2d 451 (1985)	Cited as authority relevant to police-citizen encounters under the Fourth Amendment.	Cited by the court as additional state authority consistent with the court's analysis.
People v Daniels, 160 Mich. App. 614; 408 N.W.2d 398 (1987)	Cited as supporting authority regarding permissible police encounters.	Referenced as an accord: the court noted the result was consistent with Daniels.
People v Alfafara, 140 Mich. App. 551, 556; 364 N.W.2d 743 (1985)	Standard of review for suppression rulings: a trial court's ruling will not be set aside unless clearly erroneous.	Applied to decide whether the trial court's suppression ruling was clearly erroneous; the appellate court concluded it was.
Dunaway v New York, 442 U.S. 200, 207; 99 S Ct 2248; 60 L Ed 2d 824 (1979)	Cited for examples of circumstances that might indicate a seizure (referenced in Mendenhall's discussion).	Quoted via Mendenhall to illustrate factors that would indicate a seizure; court found those factors absent here.
Schneckloth v Bustamonte, 412 U.S. 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973)	Voluntariness of a person's responses does not depend on being affirmatively told he is free to decline to cooperate.	Cited to support the proposition that failure to inform defendant he was free to leave does not by itself convert a consensual encounter into a seizure.

Court's Reasoning and Analysis

The court framed the Fourth Amendment analysis around whether the officers' contact with defendant constituted a seizure (a Terry stop) requiring objective reasonable suspicion. It began by identifying the facts shown at the suppression hearing: plainclothes officers and federal agents at the airport observed defendant (from a flight originating in a city known as a drug distribution center), followed him, approached on either side, displayed police identification, asked to speak briefly, explained their purpose, and requested to see defendant's airline ticket. Defendant produced the ticket and, when asked if he had narcotics, admitted he did.

The court reviewed controlling principles from precedent. It relied principally on United States v Mendenhall and quoted the Mendenhall formulation that a seizure occurs only if a reasonable person would have believed he was not free to leave. The court emphasized Mendenhall's list of circumstances that might indicate a seizure (threatening presence of several officers, display of a weapon, physical touching, or language/tone indicating compliance might be compelled) and found no evidence of any of those circumstances here. The court also relied on Florida v Royer and related authorities for the proposition that merely approaching a person in a public place, identifying oneself as police, and asking questions does not itself constitute a seizure.

The court specifically rejected the trial court's reliance on two points: (1) the officers' failure to tell defendant he was free to leave, and (2) the officers' request to see his airline ticket. Citing Mendenhall and Schneckloth v Bustamonte, the court held that neither omission nor the request for a ticket, without more, transforms an otherwise noncustodial encounter into a Fourth Amendment seizure. Applying the clearly erroneous standard from People v Alfafara, the Court of Appeals concluded the trial court erred in finding a seizure and suppressing the evidence. The court noted the result was in accord with People v Daniels.

Holding and Implications

REVERSED AND REMANDED.

Holding: The Court of Appeals held that the officers' contact with defendant at the airport did not constitute a Fourth Amendment seizure (a Terry stop). Because there was no seizure, the narcotics evidence was not the fruit of an unlawful seizure and the trial court's suppression order was reversed.

Implications: The direct effect is that the suppression order is vacated and the case was remanded for further proceedings. The opinion confines its analysis to application of existing Fourth Amendment principles and cited authorities; it does not announce a new rule of law beyond applying precedent (the court noted the result was in accord with prior decisions).

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PEOPLE v SASSON

PER CURIAM.

Defendant was charged with possession of over fifty grams of cocaine, MCL 333.7401(1), (2)(a)(iii); MSA 14.15(7401)(1), (2)(a)(iii). The people appeal as of right from an order granting defendant's motion to suppress the cocaine as evidence and dismissing the case. We reverse.

Defendant was arrested at Detroit Metropolitan Airport upon his arrival on a flight originating from Fort Lauderdale, Florida, and he admitted to police officers who were questioning him that he was carrying cocaine. The only issue in this case is whether the questioning of defendant amounted to an unjustified detention in violation of the Fourth Amendment, so that the cocaine should be suppressed as the fruit of an unlawful seizure of defendant's person. Defendant's position is essentially that he was subjected to a Terry stop [Terry v Ohio, 392 U.S. 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968)] without the "reasonable suspicion" required under Terry. The people contend that this case amounts to a permissible police encounter in a public place, short of a Terry stop.

At an evidentiary hearing, Detroit Police Officer Alan Kment testified that he and another narcotics squad officer, along with two federal drug enforcement agents, were assigned to the airport to look for possible drug couriers. The officers were plainclothed but armed. Kment observed persons leaving a plane from Fort Lauderdale because that city is known as a drug distribution center. Defendant got off the plane carrying a shoulder bag, appearing nervous, looking from side to side and over his shoulder, and walking rapidly. Kment and one of the federal agents followed defendant to the outer part of the terminal, where they approached on either side of him and showed their police identification. Kment informed defendant that they were police officers, asked to speak with defendant "for a minute," and explained the officers' purpose at the airport. Kment next asked to see defendant's airplane ticket, which defendant produced. Defendant was then asked if he had any narcotics and he answered that he did. Defendant was arrested and taken to an airport DEA office, where he removed a roll containing cocaine from around his waistband.

The Fourth Amendment guarantees against unreasonable searches and seizures, and applies to seizures of persons that are short of traditional arrests, involving only brief detentions. City of Pontiac v Baldwin, 163 Mich. App. 147, 150; 413 N.W.2d 689 (1987), and cases cited therein. However, "not all personal intercourse between policemen and citizens involves `seizures' of persons." Terry, supra, 392 U.S. 19, n 16. "[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." United States v Mendenhall, 446 U.S. 544, 554; 100 S Ct 1870; 64 L Ed 2d 497 (1980) (opinion of Stewart, J.). Thus:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. . . . Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. [ Florida v Royer, 460 U.S. 491, 497; 103 S Ct 1319; 75 L Ed 2d 229 (1983) (opinion of White, J.; citations omitted).]

In this case, the trial court concluded that the officers made a sufficient showing of authority to constitute a seizure of defendant, i.e., that the encounter with defendant amounted to a Terry stop. In so ruling, the court noted that the police "at no time told defendant he was free to leave" and found that "[t]he request for an airline ticket is a further example of the detention and seizure." The court then found that the police lacked the reasonable suspicion necessary to conduct a Terry stop and ordered the narcotics evidence suppressed.

A court's ruling on a motion to suppress evidence will not be set aside unless clearly erroneous. A ruling is clearly erroneous when the reviewing court is firmly convinced that a mistake has been made. People v Alfafara, 140 Mich. App. 551, 556; 364 N.W.2d 743 (1985). In this case, we believe that such a mistake has been made.

In United States v Mendenhall, supra, two DEA agents observed the defendant, who matched a drug-courier profile, disembark an airplane and walk through an airport concourse. The agents approached her, identified themselves as federal agents, and asked to see her identification and airline ticket, which she produced. The Supreme Court held that this contact did not amount to a seizure within the meaning of the Fourth Amendment:

Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person or the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. See Terry v Ohio, supra at 19, n 16; Dunaway v New York, 442 U.S. 200, 207, and n 6; [ 99 S Ct 2248; 60 L Ed 2d 824 (1979)]; 3 W LaFave, Search and Seizure, pp 53-55 (1978). In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

On the facts of this case, no "seizure" of the respondent occurred. The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon the respondent to their presence, but instead approached her and identified themselves as federal agents. They requested, but did not demand to see the respondent's identification and ticket. Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest. The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official. See Terry v Ohio, 392 US at 31, 32-33 (Harlan, J., concurring). See also ALI, Model Code of Pre-Arraignment Procedure, § 110.1(1) and commentary, pp 257-261 (1975). In short, nothing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way, and for that reason we conclude that the agents' initial approach to her was not a seizure.

Our conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her having been so informed. See Schneckloth v Bustamonte [ 412 U.S. 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973)]. [ 446 U.S. 554-555 (opinion of Stewart, J.).]

In this case, as in Mendenhall, two plainclothes officers approached defendant in a public place, rather than "several" officers "summoning" defendant. Mendenhall, supra. There is no evidence that the officers displayed their weapons, touched defendant, or used threatening language. Further, as in Mendenhall, neither the officers' request to see defendant's ticket nor their failure to affirmatively inform defendant that he was free to decline to cooperate transformed their contact with defendant into a Fourth Amendment seizure, as the trial court apparently believed. In short, as in Mendenhall, nothing in the record suggests that defendant had any objective reason to believe that he was not free to end the conversation and proceed on his way. Accordingly, there was no seizure of defendant and the narcotics evidence was not tainted by an unlawful stop of defendant. Accord, Daniels, supra.

Reversed and remanded.

PEOPLE v. SASSON