Court OKs Arrest

Case: People v. Evans

Court: Michigan Court of Appeals ( Unpublished Opinion )

Issues:

Search & seizure; Motion to suppress evidence; Whether defendant was subjected to an unlawful stop under Terry v. Ohio; People v. Steele; Probable cause for an arrest; People v. Maggit; The plain view doctrine; People v. Galloway; Peterson Novelties, Inc. v. City of Berkley; Sentencing; Consecutive sentencing for carrying a concealed weapon & felony-firearm; People v. Cortez; People v. Clark; People v. McCrady

Summary:

Concluding that a Terry stop did not occur, and holding that probable cause supported defendant’s arrest, the court rejected his claim that he was subjected to an illegal search. It added that because the gun was found in plain view on a shelf, it was not seized as a result of a search. However, while the court affirmed his convictions, it remanded for further sentencing proceedings because his CCW sentence could not run consecutively to his felony-firearm sentence. He was convicted of felon in possession (FIP), carrying a concealed weapon (CCW), and felony-firearm. He was sentenced as a third habitual offender to concurrent terms of 1 to 10 years each for the FIP and the CCW convictions, to be served consecutive to a 5-year term for the felony-firearm conviction. The court first rejected defendant’s argument that the trial court erred in denying his motion to suppress evidence. It concluded that the arresting officer (M) was able to show “that he had a reasonable, articulable suspicion that defendant was engaged in a crime.” However, he “never made a Terry stop.” He followed defendant into the store and tried “to close the gap between them so that he could stop defendant and speak to him. Before [he] could stop defendant, defendant pulled a ‘black object that appeared to be a gun’ out of the waistband of his pants and placed it on a metal shelf. Defendant was not stopped or seized” before M saw him drop the gun on the shelf. Once M saw that he “had what looked to be a gun, he bypassed the Terry stop altogether and attempted to place defendant under arrest.” The court further concluded that, based on the preliminary exam testimony that the trial court considered during the hearing on the motion to suppress, probable cause supported M’s decision to arrest defendant. Having followed him into the store and watched him place a gun on the shelf, M had probable cause for the arrest. The court added that the gun was in plain view on the shelf in a store open to the public. However, defendant’s CCW sentence could not be served consecutively to his felony-firearm sentence because CCW is not a predicate felony for felony-firearm.