Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – K.F. Kelly and Murray; Concurring in part, Dissenting in part – Stephens
Search & seizure; People v. Mahdi; People v. Frederick (On Remand); Plain error review; People v. Bosca; People v. Johnson; Standing; People v. Mamon; Abandoning an object; People v. Zahn; Whether the defendant was unlawfully seized before the abandonment occurred; People v. Shabaz; People v. Lewis; Ineffective assistance of counsel; People v. Lopez; People v. Matuszak; Failure to file a futile motion to suppress evidence; People v. Horn
The court held that the defendant’s abandonment of the gun was not due to a police seizure and thus, he lacked standing to challenge the firearm evidence. Further, defense counsel was not ineffective for failing to file a futile motion to suppress. Thus, the court affirmed his convictions of carrying a concealed weapon, felon in possession, and felony-firearm.
He pulled the gun from his jacket and threw it over a fence, surrendering any reasonable expectation of privacy in it. However, as in Mamon, he argued that he was unlawfully seized before he abandoned the gun and thus, it should have been suppressed. If the “officers’ actions before defendant discarded the gun were coercive in nature, it would nullify any claim of abandonment because ‘defendant’s actions cannot be used to dissipate the taint flowing from the unreasonable police conduct.’” The court held that “under Mamon, the police chase did not constitute a seizure.” The officers drove a “fully-marked scout car alongside defendant” and another man, stopped the car in front of them, and Officer H illuminated them with his flashlight. They started to run and H, “who was wearing a modified uniform, pursued them. There was no evidence that the officers activated their siren or lights, commanded defendant to halt, displayed any weapons, or forced defendant to run in a direction other than the one chosen by him when he decided to flee.” While he relied on the facts that the car was marked, they were wearing uniforms, and they used their flashlight, these factors were not “listed in Mamon as examples of conduct that would display authority. Moreover, the fact that a police car is marked, that officers are wearing uniforms, or that the officers use a flashlight would not lead a reasonable person to conclude that he was not free to leave. Similarly,” while they stopped in front of him, causing him to alter his path, this occurred before he fled. As in Mamon, “there was no show of authority that transformed the police chase into a seizure. Rather, under Lewis, defendant was not seized until” H told him to get down from the fence and he complied, which was after he discarded the gun.