PEOPLE OF MI V MARKEE BAILEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
Plaintiff-Appellee,
v
No. 199473
Genesee Circuit Court
LC No. 93-049618-FH
MARKEE BAILEY,
Defendant-Appellant.
Before: Sawyer, P.J., and Hood and Hoekstra, JJ.
SAWYER, P.J. (dissenting).
I respectfully dissent.
In my opinion, the trial court did not err when it did not suppress the evidence seized by the
police officers. I therefore would affirm.
In the course of an investigatory stop, a police officer may conduct a reasonable search for
weapons where he has reason to believe that he is dealing with an armed and dangerous individual.
People v Taylor, 214 Mich App 167, 169; 542 NW2d 322 (1995) (citing Terry v Ohio, 392 US 1;
88 S Ct 1868; 20 L Ed 2d 889, 909 [1968]). In determining the validity of such a search, the issue is
whether a reasonably prudent person in the circumstances of the officer would be warranted in the belief
that his safety or that of others was in danger. Id. In determining the lawfulness of a stop and frisk
procedure, this Court must consider the general governmental interest of effective crime prevention and
detection, and the more immediate interest of the police officer in protecting himself against armed
violence. Taylor, supra at 170.
Law 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, or by putting questions to him if the person is willing to listen. People v Daniels, 160 Mich
App 614, 617-618; 408 NW2d 398 (1987). Moreover, the police may ask a person to do something,
such as produce identification, without necessarily converting the encounter into a Terry stop. Id. at
619, quoting, Florida v Royer, 460 US 491; 103 S Ct 1319; 75 L Ed 2d 229 (1983). Thus, for
Terry purposes, a police approach for questioning on the street amounts to a consensual encounter, not
a Terry stop, unless there exist intimidating circumstances leading the person to reasonably believe he
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was not free to leave or the person rebuffs the police officer by refusing to answer and walking away.
Id. It is in the latter situations that justification for a Terry stop must be present before the police may
detain the person. Id.
Given the facts as stated by the parties prior to the court’s ruling, I do not believe that it was
improper for Officer Kendall to approach the van in a public place in order to see what was going on
inside the van. Once Officer Kendall was standing at the driver’s window, defendant continued to stuff
something under his right leg. Officer Kendall therefore asked defendant for identification. Because
there do not appear to be any facts indicating that defendant did not believe he was free to leave, the
encounter did not rise to the level of an investigatory stop at this point. After Officer Kendall asked
defendant for identification, defendant did not produce his identification and continued to stuff something
under his leg. After defendant refused to produce his identification, Officer Kendall told defendant to
put his hands up, but defendant continued to stuff something under his leg. Because there were several
men in the van and defendant could have been attempting to hide a weapon, a reasonably prudent
person in the circumstances of the officer would be warranted in the belief that his safety or that of
others was in danger. Thus, Officer Kendall was justified in ordering defendant to exit the van. Once
defendant stepped out of the van, he dropped a baggie containing marijuana. Because the evidence
was obtained as a result of a valid investigatory stop, the court’s ruling that the stop was legal was not
erroneous.
Defendant argues that the facts of this case are analogous to those of People v Shabaz, 424
Mich 42; 378 NW2d 451 (1985). In that case, plain-clothed police officers in an unmarked car saw
the defendant leaving a building, carrying a small brown paper bag, in an area where “one might expect
to find narcotics, concealed weapons, and prostitutes.” The defendant saw the police officers and he
began stuffing the bag under his vest or in his pants. When the police car nearly came to a complete
stop, the defendant “took off running.” The officers chased the defendant into a building, but saw
nothing in his hands. After they caught up with the defendant, the officers found a closed brown paper
bag in the vestibule of the building. The bag contained a gun. The defendant was arrested for unlawfully
carrying a concealed weapon. The Supreme Court affirmed the trial court’s grant of defendant’s motion
to suppress, finding that the police did not have an articulable or particularized suspicion based on
objective manifestations that the defendant was involved in criminal wrongdoing. Id. at 60, 67. The
Court noted:
The officers did not approach [the defendant] merely for the purpose of
questioning him, after first identifying themselves as police officers, nor was the
defendant free to “go on his way.” Indeed, when he attempted to “go on his way,” he
was pursued and seized by the officers. And when the officers spotted the defendant
and began to chase him, they did not have probable cause to arrest him. [Id. at 58-59.]
To the contrary, in the present case, as indicated above, the police first approached defendant
merely for the purpose of asking questions. They did not immediately stop defendant pursuant to an
investigatory stop. They did so only after they gained suspicion from his continued attempt to hide
something under his leg.
I would affirm.
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/s/ David H. Sawyer
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