Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  June 7, 2019                                                                      Bridget M. McCormack,
                                                                                                  Chief Justice

  158673                                                                                 David F. Viviano,
                                                                                         Chief Justice Pro Tem

                                                                                       Stephen J. Markman
  PEOPLE OF THE STATE OF MICHIGAN,                                                          Brian K. Zahra
            Plaintiff-Appellant,                                                      Richard H. Bernstein
                                                                                      Elizabeth T. Clement
  v                                                        SC: 158673                 Megan K. Cavanagh,
                                                                                                       Justices
                                                           COA: 343668
                                                           Wayne CC: 18-001283-AR
  YOREL RENDELL-SIVAD FOSTER,
           Defendant-Appellee.

  _________________________________________/

        On 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).

         I 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.

         The 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 US 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
                                                                                                                 2

did not seize defendant when he approached defendant and asked him if he possessed a
weapon.

        Rather, 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 1 “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
enforcement effort.

       Thus, I 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.

         ZAHRA, J., would remand this case to the Court of Appeals as on leave granted.




1
    Terry v Ohio, 392 US 1 (1968).



                           I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           June 7, 2019
          t0604
                                                                               Clerk
