                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                       UNPUBLISHED
                                                                       August 10, 2017
               Plaintiff-Appellee,

v                                                                      No. 330238
                                                                       Wayne Circuit Court
KEVIN DUNSON,                                                          LC No. 15-001582-01-FH

               Defendant-Appellant.


Before: STEPHENS, P.J., and K. F. KELLY and MURRAY, JJ.

PER CURIAM.

        Defendant appeals as of right his bench trial convictions of carrying a concealed weapon
(CCW), MCL 750.227, felon in possession of a firearm, MCL 750.224f, and possession of a
firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b.
The trial court sentenced defendant to five years’ probation for the CCW and felon-in-possession
convictions, and five years’ imprisonment for the felony-firearm conviction. We affirm.

        Defendant argues that the evidence of his firearm possession should have been
suppressed because the police officers’ actions in initiating a foot chase before he discarded the
firearm constituted a warrantless seizure unsupported by reasonable suspicion. Defendant failed,
however, to preserve this argument by filing a motion to suppress the evidence. People v Unger,
278 Mich App 210, 243; 749 NW2d 272 (2008). Therefore, the issue is unpreserved. This Court
reviews unpreserved constitutional issues “for plain error affecting a defendant’s substantial
rights.” People v Bosca, 310 Mich App 1, 47; 871 NW2d 307 (2015). “In order for a defendant
to establish plain error, he must show that (1) an error occurred, (2) the error was plain, i.e., clear
or obvious, and (3) the plain error affected substantial rights.” People v Johnson, 315 Mich App
163, 197; 889 NW2d 513 (2016). “Additionally, reversal is warranted only when the plain,
forfeited error resulted in the conviction of an actually innocent defendant or when the error
seriously affected the fairness, integrity, or public reputation of the judicial proceedings.”
People v Clark (On Remand), 315 Mich App 219, 224; 888 NW2d 309 (2016).

     As this Court recently explained in People v Mahdi, 317 Mich App 446, 457-458; 894
NW2d 732 (2016):

              The United States and Michigan Constitutions protect against
       unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11.
       The Fourth Amendment to the United States Constitution provides, “The right of
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       the people to be secure in their persons, houses, papers, and effects, against
       unreasonable searches and seizures, shall not be violated, and no Warrants shall
       issue, but upon probable cause, supported by Oath or affirmation, and particularly
       describing the place to be searched, and the persons or things to be seized.” The
       corresponding provision of the Michigan Constitution provides, in part, “The
       person, houses, papers and possessions of every person shall be secure from
       unreasonable searches and seizures.” Const 1963, art 1, § 11. Whether a search
       or a seizure is lawful depends on whether it is reasonable. People v Nguyen, 305
       Mich App 740, 751; 854 NW2d 223 (2014). Therefor, “a search for purposes of
       the Fourth Amendment occurs when the government intrudes on an individual’s
       reasonable, or justifiable, expectation of privacy.” People v Antwine, 293 Mich
       App 192, 195; 809 NW2d 439 (2011) (citation and quotation marks omitted).

“Thus, in any given Fourth Amendment case, there are two general inquiries to be made: (1)
whether a ‘search or seizure’ of a person, area, or object protected by the amendment occurred,
and (2) if so, whether that search or seizure was unreasonable.” People v Frederick (On
Remand), 313 Mich App 457, 464-465; 886 NW2d 1 (2015) rev’d on other grounds by ___ Mich
___; 895 NW2d 541 (2017).

       We first consider whether defendant has standing under the Fourth Amendment to
challenge the admissibility of the firearm evidence. See People v Mamon, 435 Mich 1, 5-6; 457
NW2d 623 (1990) (opinion by RILEY, C.J.). “This initial standing inquiry depends upon whether
the defendant has a reasonable expectation of privacy in the particular goods at issue.” Id. at 6.
“A court determines the issue of standing by examining the totality of the circumstances, and a
defendant bears the burden of establishing that he has standing.” Mahdi, 317 Mich App at 459.
“A person can deprive himself of standing by abandoning the object of the search or seizure.”
People v Zahn, 234 Mich App 438, 448; 594 NW2d 120 (1999).

        In Mamon, 435 Mich at 3, the defendant challenged the introduction of a discarded bag
containing illegal drugs. The Court concluded that “the defendant unquestionably relinquished
any reasonable expectation of privacy in the bag and its contents when he voluntarily reached
into his right pocket and discarded the bag.” Id. at 7. Similarly, in this case, defendant pulled
the gun from his jacket and voluntarily threw it over a fence, thereby relinquishing any
reasonable expectation of privacy in the gun. See Mamon, 435 Mich at 7. Because defendant
abandoned the gun, he lacks standing to challenge the introduction of the gun under the Fourth
Amendment. See id.

        Nonetheless, as in Mamon, 435 Mich at 7-8, defendant contends that he was unlawfully
seized before the abandonment occurred and, therefore, the gun should have been suppressed.
Moreover, if the police 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.” People v Shabaz, 424 Mich
42, 66; 378 NW2d 451 (1985). Thus, it is necessary to determine whether the police officers’
conduct before the abandonment constituted a seizure.

       “The Fourth Amendment applies to all seizures of a person, including seizures that
involve only a brief detention, short of traditional arrest.” Shabaz, 424 Mich at 52. “A ‘seizure’

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within the meaning of the Fourth Amendment occurs only if, in view of all the circumstances, a
reasonable person would have believed that he was not free to leave.” People v Jenkins, 472
Mich 26, 32; 691 NW2d 759 (2005).

        In Shabaz, 424 Mich at 66, the Court concluded that when the officers began their pursuit
of the defendant, the defendant’s freedom was restricted. However, in Mamon, a three-Justice
lead opinion held that a police chase on foot does not automatically constitute a seizure. Mamon,
435 Mich at 11 (opinion by RILEY, C.J.). Rather, the police must exhibit some “show of
authority which would indicate to a reasonable person that he was not free to leave.” Id. at 12.
The Court listed factors that would constitute a show of authority, including the police activating
a siren or flasher, commanding the defendant to halt, displaying weapons, and attempting to
force the defendant to run in a direction other than the one chosen by him when he decided to
flee. Id.1 More recently, however, this Court explained that

       [t]he Supreme Court made clear that the actual pursuit of a person did not amount
       to a seizure under the meaning of the Fourth Amendment of the United States
       Constitution. Instead, the Court stated that to constitute a seizure for purposes of
       the Fourth Amendment there must be either the application of physical force or
       the submission by the suspect to an officer’s show of authority. [People v Lewis,
       199 Mich App 556, 559; 502 NW2d 363 (1993) (citations omitted).]

In Lewis, this Court concluded that the defendant was not seized until the officer “actually laid
his hands on him[.]” Id. at 559-560.

        In this case, the officers drove their fully-marked scout car alongside defendant and his
companion. The officers stopped the car in front of the individuals and Officer Johnny Hannah
illuminated the individuals with his flashlight. The individuals started to run and Hannah, 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. Thus,
under Mamon, the police chase did not constitute a seizure.

        Defendant relies on the fact that the police car was marked, the officers were wearing
uniforms, and the officers used their flashlight. Those factors were not, however, 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, although the officers
stopped in front of defendant, causing him to alter his path, this occurred before his flight. The
officers did not force defendant to run in a direction different than the one he chose when he
decided to flee. Accordingly, 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 Hannah told
defendant to get down from the fence and defendant complied. This did not occur until after


1
  The concurring Justice distinguished between police chases by vehicle and police chases by
foot. Mamon, 435 Mich at 18-19 (BRICKLEY, J., concurring).


                                                -3-
defendant discarded the firearm. Therefore, defendant’s abandonment was not the result of the
seizure. Accordingly, defendant lacked standing to challenge the firearm evidence. Because the
police chase before defendant discarded the gun did not constitute a seizure for purposes of the
Fourth Amendment, it is unnecessary to consider whether the officers had reasonable suspicion.

        Given that the admission of the firearm evidence was not erroneous, defendant’s
argument that his trial counsel was ineffective by failing to file a motion to suppress the evidence
of his alleged firearm possession also fails.

       Defendant failed to preserve his challenge to the effectiveness of his trial counsel by
moving for a new trial or a Ginther2 hearing. People v Lopez, 305 Mich App 686, 693; 854
NW2d 205 (2014). Where claims of ineffective assistance of counsel have not been preserved,
this Court’s review is limited to errors apparent on the record. People v Matuszak, 263 Mich
App 42, 48; 687 NW2d 342 (2004).

                  The United States Supreme Court has set forth a two-prong test to
         determine whether counsel was ineffective in a given case. First, defendant must
         prove that his trial counsel failed to meet an objective standard of reasonableness
         based on “prevailing professional norms.” Second, defendant must establish
         prejudice, which is “a reasonable probability that, but for counsel’s unprofessional
         errors, the result of the proceeding would have been different.” [Lopez, 305 Mich
         App at 694 (citations omitted).]

       Trial counsel did not file a motion to suppress, but such a motion would have been
meritless because the police chase did not constitute a seizure for purposes of the Fourth
Amendment. “[T]rial counsel is not ineffective for failing to make a futile motion.” People v
Horn, 279 Mich App 31, 42 n 5; 755 NW2d 212 (2008).

         Affirmed.



                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Christopher M. Murray




2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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