Bridget M. McCormack, Chief Justice, David F. Viviano, Chief
Justice Pro Tem Stephen J. Markman Brian K. Zahra Richard H.
Bernstein Elizabeth T. Clement Megan K. Cavanagh, Justices.
order of the Court, the application for leave to appeal the
October 4, 2018 order of the Court of Appeals is considered,
and it is DENIED, because we are not persuaded that the
question presented should be reviewed by this Court.
Markman, J. (dissenting).
respectfully dissent from the Court's order denying leave
to appeal and would instead reverse the circuit court's
affirmance of the district court's order suppressing the
firearm seized from defendant or, in the alternative, remand
to the Court of Appeals for consideration as on leave
granted. Defendant was charged with carrying a concealed
weapon, felon in possession of a firearm, and felony-firearm.
At the preliminary examination, the district court dismissed
the case, finding that the discovery of the firearm was
unconstitutional, and the circuit court affirmed. The Court
of Appeals then denied leave to appeal, but Chief Judge
Murray would have granted leave to appeal.
prosecutor argues that the lower courts (the district and
circuit courts) erred in finding that the discovery of the
firearm was unconstitutional. These courts determined that
the police engaged in unconstitutional conduct by approaching
defendant as he was walking in public and engaging him in
conversation. However, approaching a person walking in public
and engaging him in conversation does not amount to a seizure
of that person. People v Shabaz, 424 Mich. 42, 56
(1985) ("[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.") (quotation marks and citation
omitted); United States v Drayton, 536 U.S. 194, 200
(2002) ("Law enforcement officers do not violate the
Fourth Amendment's prohibition of unreasonable seizures
merely by approaching individuals on the street or in other
public places and putting questions to them if they are
willing to listen."). Therefore, I agree with the
prosecutor that the officer did not seize defendant when he
approached defendant and asked him if he possessed a weapon.
defendant was not seized until the officer ordered him to
place his hands in the air, at which point the officer could
see the handgun in defendant's jacket. However, this
seizure was justified because by that time the officer had
already noticed a bulge in defendant's pocket and when
asked about it, defendant became nervous, grabbed the bulging
object, and turned sideways away from the officer. That is,
at the point at which the officer asked defendant to place
his hands in the air, he possessed a "reasonable
suspicion that crime [was] afoot," which was sufficient
to justify a Terry "stop and frisk."
People v Champion, 452 Mich. 92, 98 (1996)
(quotation marks and citation omitted). During this
"stop and frisk," when the officer saw the handgun
and determined that defendant lacked a concealed weapons
permit, the officer possessed probable cause to arrest
defendant. For these reasons, I agree with the prosecutor
that the lower courts erred in finding a constitutional
violation here, instead of recognizing an effective law
would reverse the circuit court's affirmance of the
district court's order suppressing the firearm seized
from the defendant or, in the alternative, remand to the
Court of Appeals as on leave granted for consideration of
People v Anthony, Mich. App. __(2019) (Docket No.
337793), in which the Court of Appeals reversed a circuit
court order suppressing evidence based in part on the same
theory as both lower courts applied in the present case--
that the police engage in unconstitutional conduct by
approaching a suspect in a public area.
J., would remand this case to the Court of Appeals as on
Terry v. Ohio, 392 U.S. 1