In our American system of criminal justice, you are presumed innocent of all crimes until proven guilty beyond a reasonable doubt by a prosecuting official. If you or your loved one is accused or charged with a criminal offense, do NOT, under any circumstances, talk to the police. Reveal only your name, date of birth, address, and telephone number to the police, and do NOT consent to a police search or government official search of your body, home, telephone, computer, or vehicle without a search warrant. If you are facing questioning from a police officer or prosecuting official, contact Lansing criminal defense attorney Eric J. Sheppard immediately at 517-618-1580, and let Eric J. Sheppard fight for your rights.
Citizens often wonder about their rights when encountering police and government officials. It is important to know some basic principles of our constitutional law regarding police and government officials searching individuals and property and seizing individuals and property.
The United States Constitution and Michigan Constitution both guarantee the right against unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11; People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000). Generally, a search or seizure conducted without probable cause is unreasonable. People v Lewis, 251 Mich App 58, 69; 649 NW2d 792 (2002). But the United States Supreme Court has determined that the Fourth Amendment permits police to stop and briefly detain a person based on “reasonable suspicion that criminal activity may be afoot.” Terry v Ohio, 392 US 1, 30-31; 88 SCt 1868; 20 LEd 2d 889 (1968). The Terry exception has been extended to incorporate “investigative stops” under a variety of circumstances for “specific law enforcement needs.” People v Nelson, 443 Mich 626, 631; 505 NW2d 266 (1993).
In order for law enforcement officers to make constitutionally proper investigative stops, they must satisfy the two-part test set forth in United States v Cortez, 449 US 411; 101 SCt 690; 66 LEd 2d 621 (1981). Id. The totality of the circumstances, as understood and interpreted by law enforcement officers, not legal scholars, must yield a particular suspicion that the individual being investigated has been, is, or is about to be engaged in criminal activity. The suspicion must be reasonable and articulable, and the authority and limitations associated with investigative stops apply to vehicles as well as people. Id.
Reasonable suspicion is something more than an inchoate or unparticularized suspicion or “hunch,” but it is less than the level of suspicion required for probable cause. People v Champion, 452 Mich 92, 98; 549 NW2d 849 (1996); United States v Sokolow, 490 US 1; 109 SCt 1581; 104 LEd 2d 1 (1989). The reasonableness of a police officer’s suspicion must be determined “case by case on the basis of the totality of all the facts and circumstances.” People v LoCicero (After Remand), 453 Mich 496, 501-502; 556 NW2d 498 (1996).
“Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].” Accordingly, traffic stops are seizures under the Fourth Amendment. Whren v United States, 517 US 806, 809-810; 135 LEd2d 89; 116 SCt 1769 (1996). And in order to justify a traffic stop, an officer must show “reasonable suspicion that criminal activity may be afoot.” Terry v Ohio, 392 US 1, 30-31; 88 SCt 1868; 20 LEd 2d 889 (1968).
The burden of proof is on the prosecution to show that the constitutional seizure of the defendant was justified. People v Galloway, 259 Mich App 634, 638; 675 NW2d 883 (2003). Generally, evidence obtained during an illegal search must be excluded, including all evidence discovered and found to be derivative of the illegal search. People v Goldston, 470 Mich 523, 528-532; 682 NW2d 479 (2004); Wong Sun v United States, 371 US 471; 83 SCt 407; 9 Led2d 441 (1963); People v LoCicero, 453 Mich 496; 556 NW2d 498 (1996).
Police and Citizen Encounters:
“There are three categories of encounters, between the police and citizens, associated with Fourth Amendment protections. The first category is an arrest, for which the Fourth Amendment requires that police have probable cause to believe that a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment 'seizure,' but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen's liberty, and is characterized by an officer seeking the citizen's voluntary cooperation through noncoercive questioning. This is not a seizure within the meaning of the Fourth Amendment.” People v Walsh, 2008 WL 3542144, (citing People v Bloxson, 205 Mich App 236, 240; 517 NW2d 563 (1994)).
A person is “seized” within the meaning of the Fourth Amendment “only if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave.” People v Jenkins, 272 Mich 26, 32; 691 NW2d 759 (2005). Thus, “a seizure occurs when a police officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” People v Bolduc, 263 Mich App 430, 441; 688 NW2d 316 (2004). An investigatory stop, which is limited to a brief and nonintrusive detention, constitutes a Fourth Amendment seizure. People v Jones, 260 Mich App 424, 429; 678 NW2d 627 (2004). See supra.
Conversely, “[w]hen an officer approaches a person and seeks voluntary cooperation through noncoercive questioning, there is no restraint on that person’s liberty, and the person is not seized.” Jenkins, supra at 33. A police approach for questioning on the street does not amount to an investigatory stop “unless there exist intimidating circumstances leading the person to believe he [or she] was not free to leave or the person rebuffs the police officer by refusing to answer and walking away.” People v Daniels, 160 Mich App 614, 619; 408 NW2d 398 (1987).
The Law Office of Eric J. Sheppard
2109 Hamilton Road, Suite 206
Okemos MI 48864
[email protected]
PH: 517-618-1580 (office)
PH: 216-973-9996 (cell)
Fax: 517-913-6321
Citizens often wonder about their rights when encountering police and government officials. It is important to know some basic principles of our constitutional law regarding police and government officials searching individuals and property and seizing individuals and property.
The United States Constitution and Michigan Constitution both guarantee the right against unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11; People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000). Generally, a search or seizure conducted without probable cause is unreasonable. People v Lewis, 251 Mich App 58, 69; 649 NW2d 792 (2002). But the United States Supreme Court has determined that the Fourth Amendment permits police to stop and briefly detain a person based on “reasonable suspicion that criminal activity may be afoot.” Terry v Ohio, 392 US 1, 30-31; 88 SCt 1868; 20 LEd 2d 889 (1968). The Terry exception has been extended to incorporate “investigative stops” under a variety of circumstances for “specific law enforcement needs.” People v Nelson, 443 Mich 626, 631; 505 NW2d 266 (1993).
In order for law enforcement officers to make constitutionally proper investigative stops, they must satisfy the two-part test set forth in United States v Cortez, 449 US 411; 101 SCt 690; 66 LEd 2d 621 (1981). Id. The totality of the circumstances, as understood and interpreted by law enforcement officers, not legal scholars, must yield a particular suspicion that the individual being investigated has been, is, or is about to be engaged in criminal activity. The suspicion must be reasonable and articulable, and the authority and limitations associated with investigative stops apply to vehicles as well as people. Id.
Reasonable suspicion is something more than an inchoate or unparticularized suspicion or “hunch,” but it is less than the level of suspicion required for probable cause. People v Champion, 452 Mich 92, 98; 549 NW2d 849 (1996); United States v Sokolow, 490 US 1; 109 SCt 1581; 104 LEd 2d 1 (1989). The reasonableness of a police officer’s suspicion must be determined “case by case on the basis of the totality of all the facts and circumstances.” People v LoCicero (After Remand), 453 Mich 496, 501-502; 556 NW2d 498 (1996).
“Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].” Accordingly, traffic stops are seizures under the Fourth Amendment. Whren v United States, 517 US 806, 809-810; 135 LEd2d 89; 116 SCt 1769 (1996). And in order to justify a traffic stop, an officer must show “reasonable suspicion that criminal activity may be afoot.” Terry v Ohio, 392 US 1, 30-31; 88 SCt 1868; 20 LEd 2d 889 (1968).
The burden of proof is on the prosecution to show that the constitutional seizure of the defendant was justified. People v Galloway, 259 Mich App 634, 638; 675 NW2d 883 (2003). Generally, evidence obtained during an illegal search must be excluded, including all evidence discovered and found to be derivative of the illegal search. People v Goldston, 470 Mich 523, 528-532; 682 NW2d 479 (2004); Wong Sun v United States, 371 US 471; 83 SCt 407; 9 Led2d 441 (1963); People v LoCicero, 453 Mich 496; 556 NW2d 498 (1996).
Police and Citizen Encounters:
“There are three categories of encounters, between the police and citizens, associated with Fourth Amendment protections. The first category is an arrest, for which the Fourth Amendment requires that police have probable cause to believe that a person has committed or is committing a crime. The second category is an investigatory stop, which is limited to a brief, non-intrusive detention. This is also a Fourth Amendment 'seizure,' but the officer need only have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime. The third category involves no restraint on the citizen's liberty, and is characterized by an officer seeking the citizen's voluntary cooperation through noncoercive questioning. This is not a seizure within the meaning of the Fourth Amendment.” People v Walsh, 2008 WL 3542144, (citing People v Bloxson, 205 Mich App 236, 240; 517 NW2d 563 (1994)).
A person is “seized” within the meaning of the Fourth Amendment “only if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave.” People v Jenkins, 272 Mich 26, 32; 691 NW2d 759 (2005). Thus, “a seizure occurs when a police officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” People v Bolduc, 263 Mich App 430, 441; 688 NW2d 316 (2004). An investigatory stop, which is limited to a brief and nonintrusive detention, constitutes a Fourth Amendment seizure. People v Jones, 260 Mich App 424, 429; 678 NW2d 627 (2004). See supra.
Conversely, “[w]hen an officer approaches a person and seeks voluntary cooperation through noncoercive questioning, there is no restraint on that person’s liberty, and the person is not seized.” Jenkins, supra at 33. A police approach for questioning on the street does not amount to an investigatory stop “unless there exist intimidating circumstances leading the person to believe he [or she] was not free to leave or the person rebuffs the police officer by refusing to answer and walking away.” People v Daniels, 160 Mich App 614, 619; 408 NW2d 398 (1987).
The Law Office of Eric J. Sheppard
2109 Hamilton Road, Suite 206
Okemos MI 48864
[email protected]
PH: 517-618-1580 (office)
PH: 216-973-9996 (cell)
Fax: 517-913-6321