PEOPLE OF MI V GJERGJ DELIA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 18, 1998
Plaintiff-Appellee,
v
No. 200033
Oakland Circuit Court
LC No. 95-141864 FH
PJETER GRISHAJ,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 200034
Oakland Circuit Court
LC No. 95-141865 FH
MARION ADRIAN SHORDI,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 200998
Oakland Circuit Court
LC No. 95-141866 FH
GJERGJ DELIA,
Defendant-Appellant.
Before: Saad, P.J., and Kelly and Bandstra, JJ.
PER CURIAM.
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Following a jury trial, defendants were convicted of attempted breaking and entering, MCL
750.92(2); MSA 28.287(2), MCL 750.110; MSA 28.305.1 Defendants were each sentenced to
terms of two to five years in prison. They now appeal their convictions and sentences as of right. We
affirm.
Defendants first argue that their convictions must be reversed because evidence was introduced
at their trial which was obtained as a result of an unlawful stop of defendants by police. Defendants
raised this challenge below on several occasions. The last time was during trial, after the judge had
heard substantial testimony regarding the circumstances of the stop. We will defer t findings of
o
historical fact by the trial court that are not clearly erroneous, but we review the application of the
constitutional standard for lawful police stops to those facts de novo. People v LoCicero, 453 Mich
496, 500-501; 556 NW2d 498 (1996).
The right of an individual to be free from unreasonable searches and seizures is recognized
under both the federal and state constitutions.2 An investigative stop, or Terry3 stop, is a type of
seizure, less than an arrest, and is reasonable if it is based on “specific and articulable facts sufficient to
give rise to a reasonable suspicion that the person detained has committed or is committing a crime.”
People v Shankle, 227 Mich App 690, 693; 577 NW2d 471 (1998). See also LoCicero supra at
501. The validity of a police officer’s investigative stop turns on whether the requisite suspicion existed
at the stop’s inception, considering the totality of the circumstances. People v Champion, 452 Mich
92, 98-99; 549 NW2d 849 (1996); People v Shabaz, 424 Mich 42, 59; 378 NW2d 451 (1985);
People v Peebles, 216 Mich App 661, 664-665; 550 NW2d 589 (1996).
The suspicion raising facts of the instant case fall closer to those in Peebles and People v
Yeoman, 218 Mich App 406; 554 NW2d 577 (1996) than to the facts of LoCicero. The time of night
that defendants were seen by the officers venturing behind two different commercial buildings was
suspicious because the stores were long since closed. See Peebles, supra. The fact that defendants
parked in a neighboring apartment complex and scaled the wall to access the K
-mart parking lot,
combined with the fact that one defendant remained circling in the car while two defendants went behind
Foodland, also suggests that defendants’ presence behind the buildings was inconsistent with legitimate
behavior. Moreover, one of the observing officers had knowledge of a specific technique used by
break-in artists which was consistent with defendants’ conduct and involved monitoring the police
response. See Yeoman, supra. When the surveillance units switched to one of the regular Southfield
frequencies, the manner in which defendants’ vehicle was driven changed noticeably. Under the totality
of the circumstances, we agree with the trial court that the detaining officers had reasonable suspicion,
based on objective and specific criteria, that criminal activity was afoot before they initiated the stop.4
Therefore, the trial court did not err in denying defendants’ motions to suppress.
Defendants next assert that because the minimum sentences exceeded the sentencing guidelines’
recommended ranges of zero to nine months, their sentences of two to five years in prison violate the
principle of proportionality. We review the sentence imposed by a trial court for abuse of discretion in
that it must be proportionate to the circumstances surrounding the offense and the offender. People v
Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).
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Generally, a sentence within the guidelines is presumed to be proportionate. People v Kennebrew,
220 Mich App 601, 611; 560 NW2d 354 (1996). On the other hand, unless there are factors which
should be considered at sentencing which the guidelines do not adequately address, an upward
departure from the sentencing guideline range signals a potential disproportionate sentence and thus, an
abuse of discretion. People v Houston, 448 Mich 312, 320; 532 NW2d 508 (1995); Milbourn,
supra at 659-660.
In written evaluations, the trial judge indicated that he sentenced defendants outside of the
recommended guideline range because (1) they showed no remorse, (2) they had a large amount of
burglary tools, (3) it was a calculated crime, (4) they possessed a police scanner, (5) they fled, and (6)
they rammed a police car. Given defendant Delia’s prior conviction for a similar crime, the subsequent
arrest of defendants Grishaj and Shordi for two more similar crimes, and the large amount of tools they
possessed when apprehended (including gloves, walkie-talkies, a police scanner, crowbars, and an
electric circuit tester), we agree with the trial court’s assessment that defendants appear to have made a
substantial commitment to the business of breaking and entering. It then follows that a minimum
sentence of zero to nine months was insufficient impetus to persuade defendants of the folly of this
career.
Because the two-year minimum sentences imposed appropriately address the circumstances of
the offense and the offenders, including their lack of remorse, their flight from the police, their prior and
subsequent involvement in similar activity, and their apparent commitment to breaking and entering as a
commercial endeavor, the sentences do not violate the principle of proportionality. Accordingly, the
court did not abuse its discretion in sentencing defendants.
Affirmed.
/s/ William Henry Saad
/s/ Michael J. Kelly
/s/ Richard A. Bandstra
1
Defendant Shordi was also convicted of equipping a vehicle with a police radio scanner, MCL
750.508; MSA 28.776, fleeing or eluding a police officer, MCL 257.602a(1); MSA 9.2302(1), failure
to display his operator’s license upon demand, MCL 257.311; MSA 9.2011, and driving in violation of
license restrictions, MCL 257.312(4); MSA 9.2012(4).
2
The Fourth Amendment of the United States Constitution protects the “the right of the people to be
secure in their persons, houses, papers and effects, against unreasonable searches or seizures . . . .” US
Const Am IV. It was incorporated and made applicable to the states through the Due Process Clause
of the Fourteenth Amendment. US Const Am XIV; Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L
Ed 2d 1081 (1961). The Michigan Constitution provides “[t]he person, houses, papers and
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possessions of every person shall be secure from unreasonable searches and seizures . . . .” Const
1963, art 1, § 11.
3
Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
4
The prosecution also contends on appeal that because defendant Shordi was cited for driving with his
bright lights on, the stop was justified based on a traffic violation. In light of our above analysis and
because the record is absent any assertion by the police officers that they were cognizant of the traffic
violation at the inception of the stop, we do not address the issue.
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