PEOPLE OF MI V TOREESE HODGERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 11, 2010
Plaintiff-Appellant,
v
No. 287306
Wayne Circuit Court
LC No. 08-003628-01
TOREESE HODGERS,
Defendant-Appellee.
Before: Servitto, P.J., and Fort Hood and Stephens, JJ.
PER CURIAM.
The prosecution appeals by leave granted an order of the Wayne County Circuit Court
that affirmed a district court’s order declining to bind over defendant on the charges of carrying a
concealed weapon (CCW), MCL 750.227; possession of a firearm by a felon, MCL 750.224f;
and possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b.
Because an officer conducting a traffic stop is not prohibited from asking whether there are
weapons or narcotics in the vehicle, and because an officer who has a reasonable suspicion that a
weapon is in fact present in the vehicle may conduct a protective patdown search, we reverse and
remand.
This Court reviews a district court’s decision to bind over a defendant for prosecution for
an abuse of discretion. People v Hudson, 241 Mich App 268, 276; 615 NW2d 784 (2000). The
circuit court’s decision is not entitled to deference because the circuit court applies the same
abuse of discretion standard. Id. A trial court’s application of the exclusionary rule to Fourth
Amendment violations is a question of law that is reviewed de novo. People v Custer, 465 Mich
319, 326; 630 NW2d 870 (2001). Whether an officer’s suspicion is reasonable under the Fourth
Amendment is a question of law that is reviewed de novo. People v Bloxson, 205 Mich App
236, 245; 517 NW2d 563 (1994).
On appeal, the prosecutor contends that when an officer conducts a traffic stop there is no
prohibition against asking whether there are weapons in the vehicle, and when an officer is
thereafter presented with facts leading to reasonable suspicion that a weapon is in fact present, a
protective patdown search is appropriate. We agree.
A police officer may lawfully conduct a traffic stop when the officer has probable cause
to believe that a traffic violation has occurred. People v Davis, 250 Mich App 357, 363; 649
NW2d 94 (2002). Following a traffic stop for a traffic violation, a detention is usually justified
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only for the length of time necessary to issue a citation. People v Burrell, 417 Mich 439, 453;
339 NW2d 403 (1983). “[A] person may not be detained for roadside questioning beyond the
scope of a stop, absent at least an articulable basis for suspecting other criminal activity.”
Burrell, supra, 417 Mich at 441. Thus, an officer is justified in extending the detention when
“presented with additional suspicious circumstances that [warrant] further investigation.” People
v Williams, 472 Mich 308, 317; 696 NW2d 636 (2005). “A traffic stop is reasonable as long as
the driver is detained only for the purpose of allowing an officer to ask reasonable questions
concerning the violation of law and its context for a reasonable period.” Williams, supra, 472
Mich at 315. However, “[a]n officer’s inquiries into matters unrelated to the justification for the
traffic stop … do not convert the encounter into something other than a lawful seizure, so long as
those inquiries do not measurably extend the duration of the stop.” Arizona v Johnson, ___ US
___; 129 S Ct 781, 788; 172 L Ed 2d 694 (2009). “The determination whether a traffic stop is
reasonable must necessarily take into account the evolving circumstances with which the officer
is faced.” Williams, supra, 472 Mich at 315.
There is no dispute that Officer O’Shea had probable cause to stop defendant’s vehicle
for failing to stop at a defective traffic light. Therefore, no further inquiry into the justification
of Officer O’Shea’s actions “at the inception” is necessary. Terry v Ohio, 392 US 1, 20; 88 S Ct
1868; 20 L Ed 2d 889 (1968). There is also no dispute that Officer O’Shea did not initially have
reason to believe that defendant had narcotics or weapons in the vehicle when he stopped
defendant for the traffic violation. The focus of the inquiry then turns to whether, by asking
defendant if there were any narcotics or firearms in the vehicle, Officer O’Shea unreasonably
extended the scope of the traffic stop beyond the investigation of the underlying traffic violation.
In Johnson, supra, 129 S Ct 781, the Supreme Court was faced with facts somewhat
similar to those in the present case. There, officers stopped a vehicle, in an area known for gang
involvement, for a civil infraction that would warrant a citation. At the time of the stop, the
officers had no reason to suspect that the driver or the two passengers in the vehicle were
involved in criminal activity. The defendant, who was a passenger in the vehicle, was
nevertheless questioned about criminal activity that was not related to the reason for the traffic
stop. Based upon the responses provided and other articulable factors, the defendant was asked
to exit the vehicle and, when patted down for weapons, was found to have a handgun. The
Arizona Court of Appeals found that when the officer “undertook to question Johnson on a
matter unrelated to the traffic stop… patdown authority ceased to exist, absent reasonable
suspicion that Johnson had engaged, or was about to engage, in criminal activity.” Johnson,
supra, 129 S Ct at 787. In a unanimous decision, the Supreme Court reversed, and held, in part,
“[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not
convert the encounter into something other than a lawful seizure, so long as those inquiries do
not measurably extend the duration of the stop.” Id. at 788. Thus, the United States Supreme
Court’s analysis of traffic stop questioning focuses on the length of time of the questioning, not
the subject of the questioning.
The encounter between Officer O’Shea and defendant does not appear to be unreasonable
in length. While the record contains no specific reference to the time the questioning took before
Officer O’Shea became suspicious, the record reveals that the encounter consisted of two or
three questions asked of defendant at the driver’s side door immediately after defendant handed
Officer O’Shea his driver’s license and registration. Had Officer O’Shea returned to his patrol
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car, checked defendant’s license through LEIN, and written defendant a citation for the traffic
violation instead of asking defendant a few simple questions, the time that would have elapsed
would likely not have been shorter in comparison so as to make the actual encounter
unreasonably lengthy in this case. Therefore, under Johnson, the questioning of defendant about
narcotics and weapons was not unlawful, and the time it took to question defendant was not
unreasonable. The inquiries at issue did not measurably extend the traffic stop. Johnson, supra,
129 S Ct 788. As a result, the district court should not have implicitly suppressed the handgun
on this basis.
We next turn to whether Officer O’Shea had reasonable suspicion to believe that
defendant was armed and dangerous and whether his patdown search of defendant was therefore
reasonable. A police officer may conduct:
a reasonable search for weapons for the protection of the police officer, where he
has reason to believe that he is dealing with an armed and dangerous individual,
regardless of whether he has probable cause to arrest the individual for a crime.
The officer need not be absolutely certain that the individual is armed; the issue is
whether a reasonably prudent man in the circumstances would be warranted in the
belief that his safety or that of others was in danger. Terry, supra, 392 US at 27.
“[I]n determining whether the officer acted reasonably in such circumstances, due weight must
be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific
reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id.
An officer may conduct a patdown search of a person if he has reason to believe the person is
armed and dangerous, but the scope of the patdown is limited to what could reasonably lead to
the discovery of a weapon. People v Champion, 452 Mich 92, 99; 549 NW2d 849 (1996).
Here, Officer O’Shea testified that he pulled defendant over in a high crime
neighborhood at approximately 10:30 p.m. Officer O’Shea further testified that when asked if
there were narcotics or weapons in the vehicle, defendant became very nervous and made an
adjustment with his hand near the waist of his right side. According to Officer O’Shea, based on
his training and experience as a police officer, these actions were consistent with someone who
was carrying or about to pull a weapon. When Officer O’Shea then asked to search the vehicle,
defendant’s voice cracked. Defendant exited the vehicle when asked but, despite the fact that
defendant was told to keep his hands up, pulled at his coat near the right side of his waist. When
viewed in the totality of the circumstances as “understood by law enforcement officers,” the
actions gave rise to a reasonable suspicion that defendant was armed and dangerous. People v
Nelson, 443 Mich 626, 632; 505 NW2d 266 (1993).
While nervousness alone is “insufficient to create a reasonable suspicion of criminal
activity,” Bloxson, supra, 205 Mich App at 247, “[N]ervous, evasive behavior is a pertinent
factor in determining reasonable suspicion.” People v Oliver, 464 Mich 184, 197; 627 NW2d
297 (2001), quoting Illinois v Wardlow, 528 US 119, 124; 120 S Ct 673; 145 L Ed 2d 570
(2000). Likewise, while presence in a high-crime neighborhood does not, standing alone, create
a reasonable suspicion, this fact may nonetheless be taken into account in assessing reasonable
suspicion. People v Shabaz, 424 Mich 42, 60; 378 NW2d 451 (1985). Suspicious movements
also contribute to a finding of reasonable suspicion. See, e.g., People v Muro, 197 Mich App
745, 748; 496 NW2d 401 (1993).
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Defendant’s presence in a high crime area at night, his becoming nervous when asked
about the presence of weapons or narcotics, and his hand movements around his waist
immediately after he was asked whether there was anything in the vehicle, and again after exiting
the vehicle, when viewed together, through Officer O’Shea’s perspective, gave rise to a
particularized suspicion that defendant was armed. Officer O’Shea was thus justified in
conducting a limited, patdown for weapons. Champion, supra, 452 Mich at 99.
The above being true, the remaining issue for our consideration is whether, at preliminary
examination, there was “evidence regarding each element of the crime charged or evidence from
which the elements may be inferred” in order to bind over defendant. Hudson, supra, 241 Mich
App at 278, quoting People v Selwa, 214 Mich App 451, 457; 543 NW2d 321 (1995). The
prosecution need not prove an offense beyond a reasonable doubt at preliminary examination,
but must establish that a felony has been committed and “there is probable cause to believe that
the defendant was the perpetrator.” Selwa, supra, 214 Mich App at 456-457, citing MCL
766.13.
The elements of carrying a concealed weapon, MCL 750.227, are:
1) Carrying a concealed pistol or other dangerous weapon on one’s person, or
carrying the same in a vehicle whether concealed or otherwise; 2) without a
license; 3) unless in his dwelling house, place of business, or on his own land.
The prosecutor presented evidence in this matter that Officer O’Shea discovered a handgun that
was concealed on defendant’s person while defendant was operating his vehicle, and that
defendant did not have a permit to possess the weapon.
The elements of felon in possession of a firearm, MCL 750.224f, are:
1) Possession of a firearm; 2) when ineligible to do so due to a conviction of a
felony; and, 3) the requirements for regaining eligibility to possess a firearm had
not been met.
The prosecutor presented evidence that defendant possessed a handgun and had been convicted
of carjacking, MCL 750.529a, a felony punishable by life in prison. And, the elements of felony
firearm, MCL 750.227b, are:
1) Possession of a firearm; 2) during the commission or attempted commission of
a felony.
A felon in possession of a firearm charge can constitute the underlying felony for felony firearm.
People v Calloway, 469 Mich 448, 452; 671 NW2d 733 (2003). The prosecutor presented
evidence that defendant possessed a firearm while committing the underlying offense of felon in
possession of a firearm.
With the handgun properly considered as evidence, the prosecutor provided evidence on
the elements of each charged offense. Because the district court should not have suppressed the
handgun, evidence was presented on all of the elements of the three charges and, therefore, the
district court abused its discretion in failing to bind over defendant as charged.
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Reversed and remanded for proceedings not inconsistent with this opinion. We do not retain
jurisdiction.
/s/ Deborah A. Servitto
/s/ Karen M. Fort Hood
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