                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________
                                                                C hief Just ice                  Justices
                                                                Maura D . Corrigan	              Michael F. Cavanagh




Opinion
                                                                                                 Elizabeth A. Weaver
                                                                                                 Marilyn Kelly
                                                                                                 Clifford W. Taylor
                                                                                                 Robert P. Young, Jr.
                                                                                                 Stephen J. Markman

____________________________________________________________________________________________________________________________

                                                                                      FILED JUNE 12, 2001





                PEOPLE OF THE STATE OF MICHIGAN,


                        Plaintiff-Appellee,


                v	                                                                             No.          112341


                JOEY DUANE OLIVER,


                     Defendant-Appellant.

                ____________________________________

                PEOPLE OF THE STATE OF MICHIGAN,


                        Plaintiff-Appellee,


                v                                                                              No.          115064


                ANTHONY DUANE TAYLOR,


                     Defendant-Appellant.

                ____________________________________

                BEFORE THE ENTIRE BENCH


                TAYLOR, J.


                        These consolidated cases arise from the same bank robbery


                and ensuing police stop of a car in the city of Jackson.                                        In


                each case, the defendant argues that incriminating evidence

resulting from the stop of the car should have been suppressed


on the basis of the Fourth Amendment exclusionary rule.     We


conclude that the stop of the car was supported by reasonable


suspicion and, thus, did not violate the Fourth Amendment.


Accordingly, we agree with the refusal of the lower courts to


suppress the evidence at issue.




              I.   FACTS AND PROCEDURAL HISTORY


     Shortly before noon on December 1, 1994, an armed robbery


was committed at a Republic Bank branch in Jackson.     It was


reported that two black males were the perpetrators and that


they left the bank on foot.   Pivotal to the issue at hand is


the conduct of Jackson County Deputy Sheriff Roger Elder that


led to his stopping of the motor vehicle containing both the


defendants and two other passengers.    Deputy Elder had been a


sheriff’s deputy for over sixteen years at the time of the


suppression hearing in Oliver.      Notably, the great bulk of


Deputy Elder’s service with the sheriff’s department was with


the road patrol division.     Before that, he was a township


police officer for about 2½ to three years.   In the course of


his career as a police officer, Deputy Elder was directly


involved in investigating about twenty bank robberies. 


     Deputy Elder testified that while he was in his patrol


car shortly before noon on the date of the robbery he (along


                               2

with other police officers in the area) heard a general


dispatch that an armed robbery had just occurred at the


Republic Bank at the corner of North and Wisner Streets in


Jackson.     This dispatch advised that the suspects were two


black males last seen heading northbound on foot from the


bank. When he heard the dispatch, Deputy Elder, who was north


of the bank, headed south to the general area of the bank to


look for suspects.    Deputy Elder explained at the suppression


hearing in Oliver that he was not looking for just two


suspects,


     [b]ecause it’s my experience in the years I’ve been

     a police officer, that there is almost always a

     getaway car in a bank robbery, and if there’s a

     getaway car, there’s at least one more person with

     it.[1]


     In the course of driving toward the area of the armed


robbery, Deputy Elder stopped at a New York Carpet World store


where he encountered two store employees standing outside


smoking cigarettes.     This store was located north of the


Republic Bank.    Deputy Elder asked them if they had seen any


black males running in the area, and they replied that they



     1

       Deputy Elder likewise testified at the suppression

hearing in Taylor that he was looking for at least three

suspects:


          Well, it’s been my experience in the past that

     there is usually someone nearby, in a robbery

     attempt, with a getaway vehicle, so I would look

     for at least three people. 


                                3
had been outside for about ten minutes and had not seen anyone


except children across the street at a school. 


       He next went to the Westbay Apartments complex because he


thought    that   the   apartment    complex   would   have   been   an


excellent place for someone on foot to run and a good place to


hide a getaway vehicle.      The Westbay Apartments were located


on the corner of North and Brown Streets, which was the first


major intersection along North Street to the west of the


Republic Bank, and this area was secluded.               The Westbay


Apartments complex was within a quarter mile of the Republic


Bank.


       When Deputy Elder was turning into an entrance to the


Westbay Apartments complex, he saw a green Mercedes with four


black male occupants heading out of the driveway.              Deputy


Elder testified at the suppression hearing in Oliver that


“[a]s I was passing by them [the occupants of the Mercedes],


I turned and looked over at them, and all four subjects looked


directly ahead.     They would not, any of them, look over at


me.”     Deputy Elder said that he found this “very unusual”


because, on the basis of his nineteen years of experience as


a police officer, “[w]ell basically, because people always


look at the cops.       When you drive by, they always look over





                                    4

and see who’s in the car or—they just always look at you.”2


Deputy Elder testified that he saw the Mercedes within ten or


fifteen minutes of the dispatch regarding the bank robbery and


that he passed within six to eight feet of the Mercedes when


they passed by each other at the entrance to the apartment


complex.


       After this, apparently concluding that these individuals


were    possibly   implicated   in   the   robbery,    Deputy   Elder


requested backup over his police radio because he had spotted


a “possible suspect vehicle.”         Deputy Elder, driving his


patrol car, then followed the Mercedes as it proceeded west on


North Street, then south on Brown Street, then east on Ganson


Street, and finally south on Wisner Street.           In driving this


route, the Mercedes went through the intersection of Wisner


and Ganson Streets.    It would have been a more direct route to


that intersection from the Westbay Apartments for the Mercedes


to have simply gone east on North Street and then turned south


on Wisner Street.    Notably, this more direct route would have




       2

       Deputy Elder similarly testified at the suppression

hearing in Taylor that no occupant of the Mercedes looked over

at his patrol car. Deputy Elder explained that he found this

significant because in his experience:


            Inevitably, when a patrol car drives by

       somebody, they [sic] always look over at you.

       Somebody in the vehicle will look at the patrol

       car. 


                                 5
taken the Mercedes by the location of the Republic Bank that


was robbed in this case.           When backup patrol cars arrived,


Deputy Elder stopped the Mercedes on Wisner Street.


       Eventually, when another sheriff’s deputy patted down


Casual Banks, one of the passengers in the Mercedes, he found


a large amount of money, including a bundle of money with a


bank   wrapper   on    it,   and    a        Michigan   identification   for


defendant Oliver. Later at the police station, a wad of money


was found on defendant Oliver, who was a passenger in the


Mercedes.    Defendant Taylor was the driver and owner of the


Mercedes.   A search of the trunk of the Mercedes at the police


station located a bag containing money and a .32 caliber


automatic pistol.       Also, defendant Taylor eventually made


statements to the police that were later used against him.


       Notably, at each suppression hearing, the trial court


credited    Deputy    Elder’s   testimony         about   the   basic   facts


surrounding the traffic stop.                 Defendants do not challenge


that determination, but rather accept the basic facts related


by Deputy Elder, while arguing that he nevertheless did not


have legal justification consistent with the Fourth Amendment


to effect the traffic stop.


       In each of these consolidated cases, the circuit court


denied the respective defendant’s motions to suppress the




                                        6

incriminating evidence discussed above.     The circuit court


held, contrary to the defense position, that the traffic stop


was supported by reasonable suspicion. 


     Thereafter, defendant Oliver entered a conditional guilty


plea to conspiracy to commit armed robbery, MCL 750.157a,


armed robbery, MCL 750.529, and possession of a firearm during


the commission of a felony, MCL 750.227b.    The condition was


that defendant Oliver be able to appeal the trial court’s


ruling at the suppression hearing in his case.       At a jury


trial, defendant Taylor was found guilty of the same crimes to


which defendant Oliver conditionally pleaded guilty.


     In Oliver, the Court of Appeals declined to address


whether there was reasonable suspicion to effect the traffic


stop on the basis of its conclusion that defendant Oliver, as


a passenger in the car, did not have “standing to challenge”


admission of the evidence at issue under the Fourth Amendment


exclusionary rule.3   In Taylor, a different panel of the Court



     3
       In short, the panel in Oliver concluded that defendant

Oliver could not challenge the search of Banks in which

incriminating evidence was first found and that, accordingly,

he could not challenge the location of other incriminating

evidence as a result of the ensuing events. The parties in

each case have argued the issue of the scope of the respective

defendants’ “standing to challenge,” or in other words the

extent to which they may avail themselves of the Fourth

Amendment exclusionary rule if there were a violation of the

Fourth Amendment. However, in light of our conclusion that

the traffic stop was supported by reasonable suspicion (and,

                                                (continued...)


                               7

of Appeals agreed with the trial court’s conclusion that the


stop       of   the   car   was   a   valid   traffic   stop   supported   by


reasonable suspicion.


                                  II.   ANALYSIS


       A trial court’s factual findings at a suppression hearing


will not be reversed unless they are clearly erroneous.


However,        as    in    the   present     case,   the   application    of


constitutional standards regarding searches and seizures to


essentially uncontested facts is not entitled to this level of


deference.           People v LoCicero (After Remand), 453 Mich 496,


500-501; 556 NW2d 498 (1996).


       In LoCicero, supra at 501-502, this Court summarized the


requirements for the police to make a valid investigatory stop


based on reasonable suspicion consistently with constitutional


protections:


            The brief detention of a person following an

       investigatory stop is considered a reasonable

       seizure   if   the   officer   has  a   “reasonably

       articulable suspicion” that the person is engaging

       in criminal activity.     The reasonableness of an

       officer’s suspicion is determined case by case on

       the basis of the totality of all the facts and

       circumstances.     “[I]n determining whether the

       officer acted reasonably in such circumstances, due

       weight must be given, not to his inchoate and

       unparticularized suspicion or ‘hunch,’ but to the

       specific reasonable inferences which he is entitled



       3
      (...continued)

thus, did not violate the Fourth Amendment), we need not

address these “standing to challenge” issues.


                                         8

     to draw from the facts in light of his experience.”


          Although this Court has indicated that fewer

     facts are needed to establish reasonable suspicion

     when a person is in a moving vehicle than in a

     house, some minimum threshold of reasonable

     suspicion must be established to justify an

     investigatory stop whether a person is in a vehicle

     or on the street. [Citations omitted.]


     Further, in determining whether the totality of the


circumstances   provide   reasonable   suspicion   to     support   an


investigatory stop, those circumstances must be viewed “as


understood and interpreted by law enforcement officers, not


legal scholars . . . .”    People v Nelson, 443 Mich 626, 632;


505 NW2d 266 (1993).   Also, “[c]ommon sense and everyday life


experiences predominate over uncompromising standards.”             Id.


at 635-636.


     In Terry v Ohio, 392 US 1, 30-31; 88 S Ct 1868; 20 L Ed


2d 889 (1968), the United States Supreme Court held that in


certain circumstances a police officer may “stop” and briefly


detain a person consistently with the Fourth Amendment on the


basis of reasonable suspicion that criminal activity may be


afoot.   Notably, “[t]he type of intrusion authorized by


[Terry] has been extended to permit investigative stops under


various circumstances . . . .”       Nelson,   at 631.


     The facts of Terry are instructive.       In that case, plain


clothes police detective Martin McFadden was assigned to




                                9

downtown Cleveland.      He observed two men walking a street,


each of them repeatedly stopping to look in the same store


window.   Then, they were joined by a third man who talked with


them    briefly.     Officer   McFadden     “testified    that   after


observing [the two men’s] elaborately casual and oft-repeated


reconnaissance of the store window on Huron Road, he suspected


the two men of ‘casing a job, a stick-up,’ and that he


considered it his duty as a police officer to investigate


further.” Terry, supra at 6. Officer McFadden also explained


that he feared the men might have a gun.            Officer McFadden


stopped the three men and asked their names.             When the men


merely    “mumbled   something”   in    response,   Officer   McFadden


grabbed one of them and patted down the outside of his


clothing, finding a gun.       Eventually, he conducted a similar


search of another of the men and found a gun on him as well.


       The following discussion in Terry illustrates how factors


that in isolation appear innocent may, in combination, provide


a police officer with reasonable suspicion to justify an


investigative stop:


            “[Officer   McFadden]   had  observed   Terry,

       Chilton, and Katz go through a series of acts, each

       of them perhaps innocent in itself, but which taken

       together warranted further investigation. There is

       nothing unusual in two men standing together on a

       street corner, perhaps waiting for someone. Nor is

       there anything suspicious about people in such

       circumstances strolling up and down the street,



                                  10

     singly or in pairs. Store windows, moreover, are

     made to be looked in.      But the story is quite

     different where, as here, two men hover about a

     street corner for an extended period of time, at

     the end of which it becomes apparent that they are

     not waiting for anyone or anything; where these men

     pace alternately along an identical route, pausing

     to stare in the same store window roughly 24 times;

     where each completion of this route is followed

     immediately by a conference between the two men on

     the corner; where they are joined in one of these

     conferences by a third man who leaves swiftly; and

     where the two men finally follow the third and

     rejoin him a couple of blocks away. It would have

     been poor police work indeed for an officer of 30

     years’ experience in the detection of thievery from

     stores in this same neighborhood to have failed to

     investigate this behavior further.”    [Id. at 22­
     23.]


     Similarly,   in    itself,    there   is   certainly   nothing


suspicious about four men occupying a car that is leaving an


apartment complex.     However, there were other factors in this


case that provided Deputy Elder with reasonable suspicion to


stop the car.     First, as Deputy Elder explained in his


testimony at both suppression hearings, he deduced that the


two direct perpetrators of the bank robbery would most likely


have the assistance of a getaway driver.            Also, it was


reported that the bank was robbed by two black males.         Thus,


the fact that the car had at least three occupants and at


least two black males4 indicated that its occupants were



     4

       The car was occupied by four black males, but the

important point is that it had at least three occupants and at

least two of those were black males. If, for example, the car

                                                (continued...)


                                  11

consistent       with      the     description    of     the      suspected


perpetrators.5      Of course, that in itself would not provide


the       particularized     suspicion      necessary     for     a   valid


investigatory stop.         See LoCicero, supra at 505.6


      However,     there    were    other   factors     that    provided   a


particularized basis for Deputy Elder to reasonably suspect


that occupants of the Mercedes in which defendants were


present had been involved in the bank robbery.                  The car was


spotted by Deputy Elder in the Westbay Apartments complex




      4
      (...continued)

would have had two black male and two white male occupants, we

do not see any way that would alter the reasonable suspicion

analysis.

      5
       We note that there are certainly many ways in which it

would be inappropriate for the police to use race as a factor

in performing their duties.     However, no reasonable person

would contend that the police should disregard race where it

has been reported by eyewitnesses that a crime has been

committed by a person of a particular race or skin color.

Simply put, it would have made no sense in the case at hand

for the police to have pursued non-black individuals as having

been the individuals who actually robbed the bank. As the

United States Court of Appeals for the Sixth Circuit observed

in United States v Waldron, 206 F3d 597, 604 (CA 6, 2000),

“[c]ommon sense dictates that, when determining whom to

approach as a suspect of criminal wrongdoing, a police officer

may legitimately consider race as a factor if descriptions of

the perpetrator known to the officer include race.”

      6

       Thus, we certainly agree with the dissent that Deputy

Elder would not have been “justified in stopping every

grouping of black males in the vicinity . . . .” Slip op,

p 11. However, as we set forth in this opinion, there were a

number   of   factors   that,   in   combination,   provided

particularized suspicion for the traffic stop at issue.


                                      12

within fifteen minutes of the report of the bank robbery. The


complex was located to the west of the bank along North Street


and within a quarter mile of the bank.   Deputy Elder had first


essentially eliminated the direction north of the bank on the


basis of two men outside the carpet store (which was north of


the bank) telling him that they had not seen anyone go by in


that direction.   He testified that he went to the Westbay


Apartments complex because that would have been an excellent


place to hide a getaway vehicle as the apartment complex


provided a secluded area to hide a car in contrast to the


parking lots of businesses near the bank.7     In this regard,


the fact that the car was leaving the apartment complex was


consistent with it being a getaway vehicle that was attempting


to leave the general vicinity of the crime.          Thus, the


suspicion of Deputy Elder reasonably focused on the Westbay


Apartments. These deductions by Deputy Elder are particularly


entitled to deference because


     [i]n analyzing the totality of the circumstances,

     the law enforcement officers are permitted, if not



     7

       At the suppression hearing in Oliver, Deputy Elder

explained that a getaway vehicle was more often “in a hidden

area somewhere close by” the site of a robbery than in front

of the building. In Taylor, Deputy Elder testified at the

suppression hearing that his “experience tells me that they

wouldn’t have put” the getaway car in the parking lot of a

Wendy’s restaurant or laundromat (which were apparently among

the businesses near the bank) as opposed to a more secluded

place. 


                              13

      required, to consider “the modes or patterns of

      operation of certain kinds of lawbreakers.     From

      [this] data, a trained officer draws inferences and

      makes deductions–inferences and deductions that

      might well elude an untrained person.”     [Nelson,

      supra at 636, quoting United States v Cortez, 449

      US 411, 418; 101 S Ct 690; 66 L Ed 2d 621 (1981).]


      On top of this, the occupants of the Mercedes drew


further suspicion on themselves by their atypical conduct in


each declining to look in the direction of Deputy Elder’s


passing marked patrol car.           As the deputy explained, in his


experience as a police officer, this was highly unusual.


There is no basis to conclude that this observation was


inaccurate, and, accordingly, we defer to his substantial


experience as a law enforcement officer. LoCicero, supra at


501-502.


      For   conduct     to   support        a   finding    of    a   reasonable


suspicion, it need be, as we are instructed by the United


States Supreme Court, merely evasive.                 Indeed, the United


States Supreme Court has quite recently stated that “nervous,


evasive     behavior    is   a    pertinent       factor    in       determining


reasonable suspicion.”           Illinois v Wardlow, 528 US 119, 124;


120 S Ct 673; 145 L Ed 2d 570 (2000).                      In Wardlow, the


defendant was standing next to a building holding an opaque


bag   in    an   area   of   Chicago        known   for    heavy       narcotics





                                      14

trafficking.          When a four-car caravan of police cars8 entered


the   area,      the    defendant    looked   in   the   direction         of   the


officers and fled, eventually running through a gangway and an


alley.     Ultimately, police officers stopped the defendant and


conducted a patdown search for weapons, discovering a gun in


the bag.        The United States Supreme Court held that there was


reasonable suspicion to support this investigatory stop in


light      of   the    defendant’s    presence     in    an   area    of    heavy


narcotics trafficking, coupled with his unprovoked flight when


he noticed the police.              In making this determination, the


Wardlow Court stated:


           In reviewing the propriety of an officer’s

      conduct, courts do not have available empirical

      studies   dealing   with  inferences   drawn   from

      suspicious behavior, and we cannot reasonably

      demand scientific certainty from judges or law

      enforcement officers where none exists. Thus, the

      determination of reasonable suspicion must be based

      on commonsense judgments and inferences about human

      behavior. [Id. at 124-125.]


Further, in United States v Orozco, 191 F3d 578, 582 (CA 5,


1999), the Fifth Circuit United States Court of Appeals


approved consideration of the “overall behavior of the vehicle


driver,” including “the avoidance of eye contact” as one


factor that might be considered in determining whether there


was reasonable suspicion to support a traffic stop. Likewise,



      8

        The police cars were involved in                      an     effort     to

investigate drug transactions in the area. 


                                       15

we see no reason that the overall behavior of all occupants of


a car in seeming to avoid looking in the direction of a marked


police car cannot be considered as one factor in support of a


finding of reasonable suspicion. Accordingly, we believe that


Deputy Elder was entitled to rely on his perception that it


was unusual that the occupants of the Mercedes seemed to avoid


looking in his direction.   As in Wardlow, we do not have, nor


have we been offered, the benefit of any empirical studies


rebutting Deputy Elder’s experience-based conclusion regarding


how people ordinarily react to marked police cars.       Deputy


Elder’s observation that it was suspicious for all four


occupants of a car not to look at his passing police car does


not strike us as unreasonable.      Indeed, it may well comport


with “commonsense.”   Accordingly, we consider Deputy Elder’s


suspicion aroused by the occupants of the car not looking at


his patrol car to be one factor that is properly considered,


together with other factors such as the secluded nature of the


apartment complex and that the apartments were located within


a quarter mile of the bank, as supporting a finding of


reasonable suspicion in this case.9



     9

       We note that defendants have cited some pre-Wardlow

decisions by panels of the United States Circuit Courts of

Appeals indicating that avoidance of eye contact is not

properly considered as a factor in support of a finding of

reasonable suspicion. However, we regard these pre-Wardlow

                                             (continued...)


                              16

     In addition to the foregoing, the route followed by the


Mercedes before the traffic stop provides another factor in


support    of   the   existence   of     reasonable   suspicion.     The


Mercedes took a circuitous route to the intersection of Ganson


and Wisner Streets before the traffic stop was actually


effected.10      This   is   particularly     suspicious   because    it


involved avoiding driving by the bank that had been robbed.


The most direct route to that intersection from the Westbay



     9
      (...continued)

decisions to be of little value in light of the recognition in

Wardlow that evasive conduct can be a factor supporting (or

even providing the primary basis for) an investigatory stop.

Moreover, we note that there are federal appellate decisions

that consider an apparent avoidance of eye contact as one

factor in support of a finding of reasonable suspicion. See,

e.g., United States v Brown, 188 F3d 860, 864-865 (CA 7, 1999)

(considering the defendant’s “unusually nervous demeanor,

including his failure to make eye contact” as one of “several

distinct articulable bases” for reasonable suspicion); United

States v Robinson, 119 F3d 663, 667 (CA 8, 1997) (concluding

that “the fact that [the defendant] appeared nervous and the

fact that he would not make eye contact” provided “[f]urther

justification” for a finding of reasonable suspicion). Of

course, none of this is to suggest that the mere fact that a

car passes by a patrol car without any of its occupants

looking at the patrol car would justify a traffic stop, but

merely that such apparent avoidance of eye contact can be one

factor that, together with others, may support a stop.

     10

       The dissent states that “it is impossible to say that

the ‘route’ they [the occupants of the car] chose was

‘circuitous when they had not yet traveled to a specified

destination when stopped. At most, we can conclude that they

chose to drive a longer distance than necessary between two

points.” Slip op, p 21. We do not perceive the distinction

that the dissent would draw in this regard. It seems plain to

us that a route would be “circuitous” precisely because it

involved driving longer than necessary.


                                   17

Apartments would have been east on North Street and then south


on Wisner Street to the intersection.       This would have taken


the car past the bank at the intersection of North and Wisner


Streets.    Instead, the car took a longer route by proceeding


west on North Street, then south on Brown Street, and finally


east on Ganson Street before reaching the intersection of


Ganson and Wisner Streets.


     We recognize that the route followed by the Mercedes was


not mentioned in Deputy Elder’s testimony and evidently was


not subjectively relied on by the police in effecting the


traffic stop.     Nevertheless, the location of the bank robbery


and the route followed by the Mercedes were obviously facts


known to the police before the traffic stop occurred.         Thus,


these    facts   are   appropriately   considered   in   determining


whether there was reasonable suspicion to support the traffic


stop because, as this Court unanimously recognized in People


v Arterberry, 431 Mich 381, 384; 429 NW2d 574 (1988):


             [T]he fact that the officer does not have the

        state of mind which is hypothecated by the reasons

        which provide the legal justification for the

        officer’s action does not invalidate the action

        taken as long as the circumstances, viewed

        objectively, justify that action. [Quoting Scott v

        United States, 436 US 128, 138; 98 S Ct 1717; 56 L

        Ed 2d 168 (1978).]


Accordingly, objective facts known to the police officers who


effected the traffic stop should be considered in determining



                                 18

whether   the   stop   was   justified   by    reasonable   suspicion


regardless of whether the officers subjectively relied on


those facts.


     We   conclude     that,    under    the     totality    of   the


circumstances, Deputy Elder’s investigatory stop of the car at


issue was supported by reasonable suspicion that occupants of


that car may have been involved in the robbery of the Republic


Bank. The reasons for that conclusion include: (1) the deputy


encountered the car near the crime scene, given that the


apartment complex was within a quarter mile of the bank; (2)


the time was short, with at most fifteen minutes elapsing from


the time of the report of the robbery to the traffic stop;


(3) the car was occupied by individuals who comported with the


limited description that the officer had at his disposal; (4)


Deputy Elder had tentatively eliminated the direction north of


the bank as an escape route on the basis of the information he


received from the carpet store employees; (5) on the basis of


his familiarity with the area and experience with crimes of


this nature, Deputy Elder formed the reasonable and well­

articulated hypothesis that the robbers had fled to the


secluded Westbay Apartments; (6) the deputy also reasonably


hypothesized on the basis of his experience that the robbers


would use a getaway car to try to escape from the area; (7)


Deputy Elder also reasonably inferred on the basis of his


                                 19

experience that a driver would probably be at the getaway car


waiting for the actual robbers; (8) the behavior of each of


the car’s four occupants in seeming to avoid looking in the


direction of the deputy’s marked police car was atypical; (9)


the car was leaving the apartment complex, which is consistent


with it being a getaway car whose occupants were attempting to


leave the area; (10) the car followed a circuitous route that


avoided driving by the site of the bank robbery.11


      The viewpoint of the dissent may best be summed up in its


statement that “in this case, the sum of zero suspicion and


zero suspicion is zero suspicion.”          Slip op, p 19.    Whatever


the   obvious   merits   of   this     proposition,   we   respectfully


disagree that it bears any relevance to this case.                 The


factors that we have discussed above as supporting a finding


of reasonable suspicion were not each of “zero suspicion” in


themselves. Rather, as we have acknowledged, while the degree




      11

        As the dissent indicates, there was testimony from

Deputy Elder that the car that was stopped was being driven in

a manner that seemed overly cautious because of the driver’s

strict compliance with traffic laws. Slip op, p 6. However,

we place no reliance whatsoever on this strict compliance with

the traffic laws in concluding that there was reasonable

suspicion to support the present traffic stop. Indeed, we

agree with the dissent that it would seem anomalous to

consider the mere fact of strict compliance with the traffic

laws as being a factor in support of a finding of reasonable

suspicion of criminal activity. Of course, we do not mean to

suggest that an act in compliance with the law cannot be a

factor in support of reasonable suspicion.


                                     20

of suspicion from each of the factors in isolation may have


fallen short of providing reasonable particularized suspicion


to support the present traffic stop, that does not mean that


these factors properly considered in the aggregate would not


provide reasonable suspicion to support the stop under the


totality   of   the   circumstances.            The    validity    of   such   a


cumulative analysis, as we have discussed, is well established


in our law.


      It   is   always     possible,       as    the    dissent     does,      to


hypothesize     innocent     explanations        for     the   circumstances


preceding the traffic stop.           That possibility alone cannot


thwart the proper efforts of law enforcement to protect our


communities. “Terry accepts the risk that officers may stop


innocent people.”          Wardlow, supra at 126.12               Indeed, the


possibility that innocent people will more than infrequently


be   briefly    detained    during    valid      investigatory      stops      is


foreshadowed by guiding United States Supreme Court precedent,


given that the reasonable suspicion needed for such stops


“requires a showing considerably less than preponderance of


the evidence.”     Id. at 123.       As this Court explained in 1993




      12
       Indeed, the United States Supreme Court pointed out in

Wardlow that “the Fourth Amendment accepts that risk in

connection with more drastic police action; persons arrested

and detained on probable cause to believe they have committed

a crime may turn out to be innocent.” Id. at 126.


                                     21

in Nelson, supra at 632:


          [T]he absence of apparent innocent behavior

     has never been a requirement for the suspicion

     required to make an investigatory stop.      United

     States v Sokolow, 490 US 1, 9; 109 S Ct 1581; 104 L

     Ed 2d 1 (1989). The question is not whether the

     conduct is innocent or guilty.     Very often what

     appears to be innocence is in fact guilt, and what

     is   indeed   entirely   innocent   may   in   some

     circumstances provide the basis for the suspicion

     required to make an investigatory stop. Thus, the

     focus is on the “‘degree of suspicion that attaches

     to particular types of noncriminal acts.’” Id.

     at 10.


     Indeed, the facts of Nelson are instructive because they


also involve defendants of whom the police were reasonably


suspicious because of the location of occupants in a car near


a location where criminal activity was known to have occurred.


In Nelson, a police informant bought a quantity of cocaine


from a house that was under police surveillance.   After about


thirty minutes, a vehicle with three occupants (unconnected


with the police informant) arrived at the house and remained


for only four minutes. A detective with twenty-three years of


experience testified that this behavior “was characteristic of


a ‘crack-house’ buy.”   Id. at 629.   Shortly after leaving the


house, the car in Nelson was stopped to investigate the


possible drug transaction.   This Court, showing deference to


the experience of the police detective, held that the stop was


supported by reasonable suspicion, noting that the behavior in




                              22

that case “was indicative of drug trafficking.”                Id. at 637­

638.   This Court in Nelson noted—and rejected—the argument of


one of the defendant’s counsel in the trial court that there


was no reasonable suspicion to support the traffic stop


because there were innocent explanations for the conduct such


as dropping off a birthday card or stopping to say hello.


This Court pointedly stated that “[t]he question is not the


number of scenarios that the imagination can conjure, but the


degree of suspicion conferred on the seemingly legal conduct.”


Id.    at   635.        Accordingly,    the   existence   of    reasonable


suspicion in the present case is not negated by the ability to


imagine possible innocent explanations for the presence of the


Mercedes at the apartment complex and the actions of the car’s


occupants.


       In sum, the police in the present case stopped a car that


contained at least three people in a situation where the


police were looking for two bank robbers and expecting to find


a getaway driver as well.            Because the car had at least two


black male occupants, its occupants were consistent with the


description        of   the   bank   robbers.     After   Deputy     Elder


eliminated the direction north of the bank, the car was found


leaving a secluded area close to the bank (indeed, within a





                                       23

quarter mile) that was a logical hiding place.13 The occupants


of the car drew further suspicion on themselves by appearing


to   a     trained   law   enforcement     officer   to   be   evasive   by


declining to look in the direction of his marked police car as


it passed close by the car.               Finally, the car followed a


circuitous route that avoided the site of the bank robbery


before the traffic stop.        While one or more of these factors


in isolation may not have constituted reasonable suspicion to


stop the car, under the totality of the circumstances, there


was reasonable suspicion to justify the traffic stop in this


case.



         13

        While not expressly stated, the dissent seems to

suggest that one of the reasons provided by Deputy Elder for

investigating the Westbay Apartment complex may have been that

“he knew blacks lived there.” See post at 10-12. However,

Deputy Elder never indicated that he went to the Westbay

complex because “he knew from personal experience that black

individuals lived there.” Post at 11. Instead, his comments

in this regard were isolated responses to specific questions

concerning what he had observed while he had been at the

complex on a previous occasion looking for an apartment with

his wife.    Accordingly, Deputy Elder’s testimony does not

reflect that he decided to go to the Westbay Apartments

because of the number of African-Americans that may have lived

there, but merely that he happened to know from an unrelated

event that African-Americans lived there.


     In any event, we, of course, agree with the dissent that

there would be nothing reasonably suspicious about African-

Americans merely being at the apartment complex. Rather, as

we have addressed, it is the particular circumstances

surrounding the occupants of the car that was stopped in this

case that provided reasonable suspicion for the present

traffic stop.



                                    24

                            III.   CONCLUSION


     We     conclude      that,    under     the        totality     of     the


circumstances,      the   police    had    the     necessary       reasonable


suspicion    to   justify    the   traffic       stop    underlying       these


consolidated cases.       Accordingly, we affirm the judgment of


the Court of Appeals in each case.14


     CORRIGAN , C.J., and WEAVER , YOUNG , and MARKMAN , JJ., concurred


with TAYLOR , J.





     14

       We note that defendant Taylor makes arguments in his

brief on appeal regarding issues other than the validity of

the stop of the Mercedes and the scope of his standing to

challenge the evidence obtained as a result of that stop.

These issues are beyond the scope of defendant Taylor’s

application for leave to appeal that was previously granted by

this Court. Accordingly, we decline to review those issues.


                                    25

                  S T A T E O F M I C H I G A N


                            SUPREME COURT





PEOPLE OF THE STATE OF MICHIGAN,


        Plaintiff-Appellee,


v                                                         No. 112341


JOEY DUANE OLIVER,


     Defendant-Appellant.

_______________________________________

PEOPLE OF THE STATE OF MICHIGAN,


        Plaintiff-Appellee,


v                                                         No. 115064


ANTHONY DUANE TAYLOR,


     Defendant-Appellant.

_______________________________

CAVANAGH, J. (dissenting).


        The primary issue in this case is whether reasonable


suspicion existed to stop and search a vehicle and its four


black    occupants.     I   would   hold   that   (1)   the   officer


effectuating the stop failed to articulate a particularized


and objective basis that would lead a reasonable person to

suspect the occupants of the vehicle of criminal activity, and


(2) evidence derived from the illegal stop is subject to


analysis under the exclusionary rule.


                                        I


       The issue in this case implicates the Search and Seizure


Clause       of     the   Fourth    Amendment       of    the    United     States


Constitution,1 which protects individuals against unreasonable


searches and seizures conducted by governmental actors. Whren


v United States, 517 US 806, 809-810; 116 S Ct 1769; 135 L Ed


2d     89    (1996).        When    a   police      officer      detains,      even


temporarily, the occupants of a vehicle, they have been


“seized” within the meaning of the Fourth Amendment. Delaware


v Prouse, 440 US 648, 683; 99 S Ct 1391; 59 L Ed 2d 660


(1979). Thus, the question becomes whether the seizure of the


defendants was constitutionally reasonable.


       Our     United     States    Supreme    Court      has    spoken   on    the


requisite         test    to   be   applied        in    cases    involving      an


investigatory stop of criminal defendants. The Court has held


that        “[a]n    automobile     stop      is    thus    subject       to    the


constitutional imperative that it not be ‘unreasonable’ under


the circumstances.” Whren at 810. In United States v Cortez,



       1


            The right of the people to be secure in their

       persons, houses, papers, and effects, against

       unreasonable searches and seizures shall not be

       violated . . . .


                                        2

449 US 411, 418; 101 S Ct 690; 66 L Ed 2d 621 (1981), the


United States Supreme Court stated that the totality of the


circumstances inquiry, in the event of a Terry stop, should


take into account the whole picture.              On the basis of that


whole     picture,     the    detaining       officers     must    have   a


particularized and objective basis for suspecting criminal


activity by the particular person stopped. In other words, to


justify the seizure, the officer must act on more than an


“inchoate and unparticularized suspicion or hunch.”                Terry v


Ohio, 392 US 1, 27; 88 S Ct 1868; 20 L Ed 2d 889 (1968).


Instead, the officer must have at least “a particularized


suspicion, based on an objective observation, that the person


stopped has been, is, or is about to be engaged in criminal


wrongdoing.”       People v Shabaz, 424 Mich 42, 59; 378 NW2d 451


(1985). 


        When the seizure of a defendant is unreasonable because


it does not comport with Terry, evidence flowing from that


seizure may be suppressed as fruit of the poisonous tree. Wong


Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441


(1963); Shabaz, supra.        Pursuant to Wong Sun, “the fruits of


the    officers'    illegal   action    are    not   to   be   admitted   as


evidence unless an intervening independent act of free will


purge the primary taint of the unlawful invasion.”                Shabaz at


66.



                                   3

                                            II


       In order to determine whether the stop in this case


passes constitutional muster, we are required to consider the


underlying facts as well as the deductions predicated upon the


facts and to make a determination of whether the detaining


officer had a reasonable, articulable, and particularized


basis for detaining the defendants.                      The majority does a fair


job of detailing the objective facts underlying this case and


recapping Deputy Elder’s testimony.                           However, the majority


occasionally            commingles        the        facts     with    Deputy     Elder’s


deductions and with its own deductions, and omits a few facts


that    I    find       key   to    the    case.             This    opinion     offers   a


disentangled version of the underlying events in order to


separate the circumstances giving rise to Deputy Elder’s


suspicions from the conclusions he drew on the basis of those


factors.         I find the distinction to be crucial, especially in


light       of    the    majority’s        conclusions              that   an    officer’s


subjective deductions must be given special deference, and


that factors not articulated by the officer may factor into a


determination of whether a stop was objectively reasonable.


Given the tests offered by the majority, I believe that the


Court must distinguish which parts of Deputy Elder’s testimony


amount      to    facts       and   which       parts        compose       the   officer’s


articulated particularized reasonable suspicion. In addition,



                                                4

the Court should recognize which factors were extrinsic to the


officer’s articulated basis for effectuating the stop.


     Deputy   Elder’s   testimony      in   this   case   revealed   the


following facts common to both Oliver and Taylor: (1)           Deputy


Elder overheard a dispatch2 that an armed robbery had just


occurred at the Republic Bank and that two black male suspects


had been last seen heading north on foot; (2) Deputy Elder


spoke to two men outside a New York Carpet World, which was


located north of the bank, who indicated that they had seen no


one but some children across the street during the preceding


ten minutes; (3) Deputy Elder then decided to go to the


Westbay   Apartments,   which   were    located    approximately     one


quarter mile west of the bank; (4) Deputy Elder came upon four


black men in a car as they were exiting the Westbay Apartment


complex, approximately ten to fifteen minutes after hearing


the dispatch; (5) Deputy Elder had previously observed that


blacks lived at the Westbay Apartment complex; (6) according


to Deputy Elder, the car’s occupants did not look in the


direction of his patrol car when he passed within six to eight


feet of them; (7)   Deputy Elder doubled back, began following





     2

        In Oliver, Deputy Elder testified that he received a

dispatch that was broadcast to all police agencies.       In

Taylor, he testified that he did not receive the dispatch

directly, but heard some radio traffic.


                                 5

the car, and radioed for back-up3; (8) while being followed by


Deputy Elder, the driver of the car drove cautiously and


obeyed all traffic laws; (9) while being followed by Deputy


Elder, the car drove west on one street, then turned south,


then turned east, and then turned south again before being


stopped.4


      From these objective facts, Deputy Elder testified that


his experience as a police officer led him to deduce the


following: (1) that the Westbay Apartment complex would be an


excellent place for someone to run on foot or to hide a


getaway vehicle because it was close and secluded, (2) that if


there were a getaway vehicle, it would likely have at least


three occupants because an additional person usually drives


the getaway vehicle, (3) that it was very unusual for people


not to look at an officer or patrol car driving by, and (4)


that by driving the speed limit, using turn signals, and


making complete stops, the driver of the car seemed to be


overcautious. The majority adds one additional deduction–that


the   defendants   were   acting    suspiciously   by   driving   a




      3

       It is unclear at what point the officer radioed for

back up.   In Taylor, he testified it was at the point he

turned around and began to follow the defendants. In Oliver,

he indicated it was while he was already following them.

      4

       In Oliver, Deputy Elder additionally testified about

the fact that he had seen no black males either in vehicles or

on foot before encountering the defendants.


                               6

“circuitous” route while being tailed by Deputy Elder.


                                     III


     According to the majority, reasonable suspicion is the


sum total of all the circumstances presented by this case.                  I


disagree.   An analysis of the underlying facts and deductions


reveals   that     Deputy    Elder’s    suspicions    were    generalized,


rather    than    particularized,       articulable,    and       reasonable.


Deputy Elder failed to demonstrate that these particular


defendants were acting in a fashion that would support a


suspicion that they had been or were about to be engaged in


criminal wrongdoing.        As such, the stop lacked reasonableness


and was unjustified.         See Shabaz at 59.


     This    case    boils    down     to   a   situation    in    which   our


defendants fell within the universe of possible suspects


because they were of the race, gender, and minimal number


described   in     the   dispatch    and    because   they    were    in   the


vicinity of the robbery shortly after the time that it had


occurred.        It is important to remember that the original


description Deputy Elder heard was that two black men (not


four), fled north (not west), on foot (not in a car).                   While


Deputy Elder’s testimony provided reasons to justify his


belief that he should look for a broader class of suspects


than the dispatch described, it is crucial to recognize that


many of the factors cited by Deputy Elder and relied upon by



                                       7

the majority would justify a stop of any grouping of two or


more black males who happened to be traveling within the


vicinity of the robbery at the time of Deputy Elder’s search.


The law does not permit random stops of automobiles. Rather,


officers may make a stop only when particularized facts lead


them       to   reasonably   believe    that   the   occupants   have


transgressed or will transgress some law.5


       As a preliminary matter, it should also be recognized


that the majority had to deduce that the Westbay Apartment


complex was a reasonable place for Deputy Elder to look for




       5
       As we stated in Sitz v Dep’t of State Police, 443 Mich

744, 747; 506 NW2d 209 (1993), “there is no support in the

constitutional history of Michigan for the proposition that

the police may engage in warrantless and suspicionless

seizures of automobiles for the purpose of enforcing criminal

law . . . .”


     Similarly, as we warned in People v Roache, 237 Mich 215,

224-225; 211 NW 742 (1927):


            While we may take judicial notice of the fact

       that rum runners and bandits ride in automobiles,

       and use them to commit crimes and effect their

       escape, may we not also take judicial notice of the

       fact that where there is one bandit or rum runner

       passing over a public highway, there are thousands

       of respectable, law-abiding citizens who are doing

       likewise?     The   protection   afforded  by   the

       constitution to such persons must be regarded as

       paramount to any right to be given a police officer

       to enable him to verify his ungrounded suspicion

       that a law is being violated.


            The granting, if such were possible, to over­
       zealous officers, of powers, the performance of

       which would invade constitutional rights of the

       citizen, would do more to retard the enforcement of

       the law than to promote it.


                                   8

suspects as a precursor to the conclusion that he had the


requisite reasonable suspicion. Though Deputy Elder testified


that he had headed to the Westbay Apartment complex after


ruling out the area north of the bank, and also stated that a


getaway car would probably be located in a secluded area, his


search   nonetheless   began   north   of   the   bank   and   he   made


inquiries of individuals standing in a public parking lot.


Thus, it is not entirely clear that the Westbay Apartment


complex was an area any more suspicious than anywhere else


near the robbery, or that Deputy Elder would have been any


less suspicious of black males in a crowded parking lot.


Further, Jackson is a mid-sized city with a population over


37,000; it seems reasonable to infer that there could be


scores of places to hide a getaway vehicle. Additionally, ten


to fifteen minutes had passed before Deputy Elder arrived at


the Westbay Apartments.    Given that the apartment complex was


located only a block away from the bank, the amount of time


that passed between when Deputy Elder received the dispatch


and the time he encountered the defendants was well beyond the


necessary time to escape.      Thus, the passage of time made it


less likely that there was a connection between the robbery


and the presence of four black men. 


     Even assuming that it is appropriate to rely on the


deduction that the Westbay Apartment complex was a reasonable



                                 9

place to hide a getaway car, almost all the factors noted in


Deputy Elder’s testimony reveal only that he believed that he


was in a location where the suspects might reasonably be when


he stopped the defendants: he had ruled out the area near the


New York Carpet World, he was within a quarter mile of the


bank, he thought a getaway car might be hidden there, he


thought it was within walking distance of the bank, and he


knew blacks lived there.          None of these factors were tied to


our defendants.      Similarly, Deputy Elder also offered a few


factors    that   tend   to     show   that    the    defendants   were   not


precluded from the list of suspects: they were black, they


were male, and there were at least two of them.                    At most,


these collective observations by Deputy Elder narrowed the


list of possible suspects.             None of these factors would tie


our specific defendants to the crime.                While Deputy Elder may


have been justified in stopping only black males in the


vicinity, nothing in his testimony indicates that he was


justified in stopping every grouping of black males in the


vicinity, or these black males in particular.


     Even if special weight is given to the fact that Deputy


Elder believed the apartment complex would be a good place to


hide a getaway vehicle and that at least three people would


have been involved in the crime, the prosecution was still


required    to    show   that    Deputy      Elder    believed   that   these



                                       10

particular defendants had been or were about to be engaged in


criminal activity.    Instead, a review of the factors leading


to Deputy Elder’s suspicions of these particular defendants,


as opposed to his suspicion of groups of black men in general,


amount to nothing more than a hunch that they in fact may have


been the robbers.     For Fourth Amendment purposes, a hunch is


an insufficient basis for initiating a stop. See Terry at 27.


     In Oliver, Deputy Elder testified that he was familiar


with the Westbay Apartments, that he knew from personal


experience that black individuals lived there, and that it


would not be unusual for black individuals to be coming out of


the Westbay Apartment complex.        These factors undercut the


reasonableness   of    Deputy   Elder’s   suspicions   that   any


particular black men or group of black men at the apartment


complex were the bank robbers.6       This is especially true in



     6
      As a matter of logic, searching for a black person in an

area where there is a concentration of black people makes it

less likely that any particular black individual is the one

unknown individual you are searching for than if you were to

see a black individual in an area where the black population

is less concentrated.


With regard to the fact that Deputy Elder knew blacks lived at

the Westbay Apartments, the majority writes, 


          Deputy Elder never indicated that he went to

     the Westbay complex because “he knew from personal

     experience that black individuals lived there.”

     Post at 11.   Instead, Deputy Elder’s comments in

     this regard were isolated responses to specific

     questions concerning what he had observed while he

     had been at the complex on a previous occasion

                                              (continued...)


                                11

light    of   the   fact   that   the    officer   had   absolutely   no


description of the suspects’ size, age, or clothing. 


        Beyond the fact that the defendants were a group of black


men traveling together in a car near the location of the


robbery, Deputy Elder offered only two reasons for stopping


these defendants: they over-cautiously followed all traffic


laws, and they did not look at him when he drove by them.             The


majority wisely has chosen not to place emphasis on the fact


that the defendants were obeying all traffic laws while being


followed by a police officer.            On cross-examination, Deputy


Elder conceded that it is not unusual for persons followed by


a marked police car to drive cautiously. The trial judge also


found that the way the car was driven was not unusual, as an


average citizen would drive similarly.



     6
      (...continued)

     looking for an apartment with his wife. [Slip op at

     24-25.]


I note that this opinion nowhere states that Deputy Elder went

to the Westbay Apartments because he believed that he would

find blacks there. The opinion simply points out that Deputy

Elder himself testified that he knew that he was in an area

where it was not unusual to see blacks leaving the apartment

complex. Thus, his testimony is indicative of the fact that

there was nothing inherently suspicious about the fact that

our defendants were leaving the Westbay Apartments, and that

Deputy Elder knew there was nothing suspicious about black

individuals exiting the Westbay Apartments.


     It is entirely irrelevant whether Deputy Elder’s

testimony came to light in response to questions posed by

defense counsel or whether he offered the information

voluntarily. The fact remains that his testimony sheds light

on whether his suspicions were reasonable and particularized.


                                   12

     The final factor, that the defendants did not look at the


patrol car when leaving the apartment complex, is the only


other factor enunciated by Deputy Elder that potentially tends


to separate these particular defendants from the general


populace of black men.           With regard to this observation, the


majority    defers     to    Deputy         Elder’s       experience    as    a   law


enforcement officer, and concludes that courts may consider


“evasive”    behavior       as       a    factor     in    determining       whether


reasonable suspicion exists.                  I believe that the majority


places too much weight on this solitary factor, and I disagree


with the majority’s analysis in several regards. 


     First,    I   disagree          that     the    law    somehow    decisively


supports the proposition that failure to look at a police


officer constitutes a specific factor.                         The primary case


relied upon by the majority is distinguishable.                       The majority


cites Illinois v Wardlow, 528 US 119, 124; 120 S Ct 673; 145


L Ed 2d 570 (2000), for the proposition that, “nervous,


evasive     behavior    is       a       pertinent    factor    in     determining


reasonable suspicion.”               Slip op at 14.            However, Wardlow


involved a defendant who fled at the sight of police officers.


Failure to react to police officers and reacting by fleeing


are very different, even opposite, behaviors.                        Wardlow is in


no way controlling. Thus, unlike the majority, see slip op at


16, n 8, I believe that pre-Wardlow decisions are of great



                                           13

value, and are more persuasive than the limited authority


offered by the majority.7


     Second,   while   I   agree    that      courts   may   consider   an


officer’s years of experience when determining whether his


actions were reasonable, the majority overstates the degree of


deference   that   must    be   given    to    an   experienced   police


officer’s deductions.      The majority relies in large part on


People v Nelson, 443 Mich 626; 505 NW2d 266 (1993).               Though


Nelson did recognize that a certain degree of deference should


be given to officers who draw inferences based on experiences


with crimes occurring under similar circumstances or committed


by similarly situated defendants, see id. at 636, an officer’s



     7
      See United States v Dela Cruz-Tapia, 162 F3d 1275, 1280

(CA 10, 1998)(the lack of eye contact is so innocent or

susceptible to varying interpretations as to be innocuous and

does not afford a reasonable suspicion for a stop); United

States v Garcia-Camacho, 53 F3d 244, 246-247 (CA 9, 1995)(the

fact that occupants of a vehicle stared straight ahead when

passing a marked police car cannot weigh in the balance of

whether there existed a reasonable suspicion for a stop);

United States v Halls, 40 F3d 275, 276 (CA 8, 1994)(merely

avoiding eye contact with state troopers while driving a

vehicle fails to give rise to a reasonable inference of

illegal activity); United States v Pavelski, 789 F2d 485, 489

(CA 7, 1986)(the fact that four men in a car failed to make

eye contact with an officer cannot justify an investigatory

stop); United States v Pacheco, 617 F2d 84, 87 (CA 5, 1980)(in

assessing reasonable suspicion for stopping a vehicle, “the

avoidance of eye contact can have no weight whatsoever”);

United States v Lamas, 608 F2d 547, 549-550 (CA 5,

1979)(“testimony that the occupants of a car avoided eye

contact with [the officer] as they passed” cannot weigh in the

balance whatsoever “because of the precarious position

travelers on our nation’s highways would be placed in if

avoiding eye contact with an officer could be considered a

suspicious reaction”).


                                   14

bald assertion that a particular situation looks like a


criminal transaction to the officer is not enough to justify


a Fourth Amendment intrusion.             People v LoCicero (After


Remand), 453 Mich 496, 506; 556 NW2d 498 (1996).               Where an


officer institutes an investigatory stop that is based on a


mere       hunch   rather    than    reasonably    articulated      and


particularized      facts,   deference     must   be   given   to   the


constitution in lieu of the officer’s years of experience.8




       8
       The majority places great reliance on Nelson, stating

that “the facts of Nelson are instructive because they also

involve defendants of whom the police were reasonably

suspicious because of the location of occupants in a car near

a location where criminal activity was known to have

occurred.” Slip op at 22. Nelson involved factors that were

more particularized than the factors at issue in the present

case.    In Nelson, the police were on surveillance at a

particular location where criminal activity had previously

occurred and was suspected to occur again. The exact type of

activity the police were watching for in fact occurred before

the time that the police stopped the defendants. In LoCicero

at 503, this Court noted Nelson’s observation that


       the detective watching the house testified “that on

       the basis of his twenty-three years experience, the

       defendant’s behavior was characteristic of a

       ‘crack-house’ buy: ‘a short visit, in/out back in

       the car and down the road.’ It was described as a

       ‘carbon copy’ of what had occurred two weeks

       earlier.” The Court concluded that this knowledge,

       coupled with the other information the police had

       regarding   the house,    formed   the  basis   for

       reasonable suspicion justifying further inquiry.


Contrast these factors with what occurred in our case: the

police knew that a crime occurred somewhere in the area, but

they were not watching for the crime to be repeated; the

police knew that suspects would likely be in the general area,

but they did not know where; and the police did not observe

behavior that amounted to a carbon copy of behavior they had

previously seen while observing robbers. 


                                    15

      Even if Deputy Elder’s conclusion that it is unusual for


people to avoid looking at police is given a great deal of


weight      as   the    majority      suggests,     his        observation    is


insufficient in and of itself to create reasonable suspicion


in this case.      The majority correctly points out that it does


not suggest that “the mere fact that a car passes by a patrol


car without any of its occupants looking at the patrol car


would justify a traffic stop, but merely that such apparent


avoidance of eye contact can be one factor that, together with


others, may support a stop.”           Slip op at 17, n 8.


      In sum, the factors cited by Deputy Elder in support of


his   decision     to   stop    the    defendants     do       not   amount   to


reasonable suspicion.           In this regard, I agree with the


majority that the fact that four men are leaving an apartment


complex is not suspicious.9 Similarly, the majority correctly


concludes that the fact that the defendants fit within the


description of possible suspects did not create particularized


reasonable       suspicion.10         Additionally,        I    find   nothing


      9


           [I]n itself, there is certainly nothing

      suspicious about four men occupying a car that is

      leaving an apartment complex. [Slip op at 11.]

      10
           The majority states:


           [T]he fact that the car had at least three

      occupants and at least two black males indicated

      that its occupants were consistent with the

      description of the suspected perpetrators.    Of

                                             (continued...)


                                      16

particularly suspicious about the fact that the defendants


were leaving Westbay Apartments at the time Deputy Elder was


patrolling the area, especially in light of Deputy Elder’s own


testimony that it was not unusual for black men to be leaving


the complex.11   Similarly, I find nothing suspicious about the



     10
      (...continued)

     course, that in itself would not provide the

     particularized suspicion necessary for a valid

     investigatory stop. [Slip op at 11-12.]

     11
        During oral argument before this Court, even the

attorney for the people recognized that a Fourth Amendment

problem could arise when an officer simply goes to an area

near a crime scene where a high concentration of people

fitting the description might be found, and then relies on

something as minimal as the avoidance of eye contact to

support a stop. The following discourse occurred:


          Court: So let’s say the robbery were reported

     to have been committed by a senior citizen with

     gray hair. I presume if Elder drove to a nearby

     retirement center and waited for the first person

     coming out that had gray hair in the car and looked

     straight ahead, he could stop him.


          Attorney: Boy, I’d have trouble with that one

     because in the first place, senior citizens with

     gray hair, statistically there are a lot more of

     them than . . . .


          Court: Than black males?


          Attorney: In the Jackson area, oh yes. If the

     facts of this had occurred in East Detroit, I’d be

     in really big trouble. I personally would not find

     reasonable suspicion in your case . . . .


The people’s attorney then went on to explain that the inquiry

entails looking at the totality of the circumstances, and that

a limiting description that cuts out over half the population

would add support for a finding of reasonable suspicion. What

the attorney failed to recognize is that Deputy Elder himself

admitted that he was not in an area where the description was

                                                (continued...)


                               17

fact that the defendants were obeying all traffic laws.


Again, I would point out that even Deputy Elder’s testimony


indicated that it is not unusual for people to follow traffic


laws when followed by a marked police car. Once these clearly


nonsuspicious singular factors are subtracted from the list of


factors offered by Deputy Elder, all we are left with is the


fact that the defendants did not look at Deputy Elder’s patrol


car.    I agree with the majority that taken alone, the failure


to look at a passing patrol car would not justify a traffic


stop.12       For these reasons, I would hold that Deputy Elder’s


decision to stop the defendants was not predicated upon


reasonable, articulable, and particularized suspicion.


                                      IV


        None of the factors cited by Deputy Elder as suspicious


would justify the stop in this case in and of itself.                Thus,


the only way that particularized suspicion can be found on the


facts        offered   by   Deputy   Elder   is   to   conclude   that   the


collection of unsuspicious behaviors offered by Deputy Elder


somehow acted in tandem to create particularized reasonable



       11
      (...continued)

limited. Instead, he was in an area where it was not unusual

to see black males.

       12


            [N]one of this is to suggest that the mere

       fact that a car passes by a patrol car without any

       of its occupants looking at the patrol car would

       justify a traffic stop . . . . [Slip op at 17, n

       8.]


                                      18

suspicion.    I would conclude that, in this case, the sum of


zero suspicion and zero suspicion is zero suspicion.13             In


reaching an opposite conclusion, the majority turns to the


facts of Terry, the original “stop and frisk” case. According


to the majority, “Terry illustrates how factors that in


isolation appear innocent may, in combination, provide a


police    officer   with   reasonable   suspicion   to   justify   an


investigative stop . . . .”     Slip op at 10.   However, what the


majority fails to recognize is that in Terry, the police


officer observed particular individuals engaging in a series


of behaviors that the officer believed to be characteristic of


defendants preparing to commit a robbery.           In the present


case, Deputy Elder’s first glance of the defendants was at the


moment he observed them pulling out of the parking lot at the


Westbay Apartments.        While he may have had a reason for


heading toward the apartment complex, any deductions the


officer made before encountering our defendants pertained to


suspects in general and added nothing to the determination of


whether these particular defendants had been or were about to


be engaged in criminal wrongdoing as required by the Fourth


Amendment.    Thus, I believe the majority makes a fundamental



     13
       Though the majority attempts to assert otherwise, the

simple fact remains that nothing in the majority opinion shows

that our particular defendants were any more suspicious than

any other black men who would have been leaving the Westbay

Apartments together.


                                 19

error.


                                V


         It is clear that reasonable suspicion has not been


proven on the basis of the factors relied upon by Deputy


Elder.    The factors were not suspicious, either individually


or collectively.     However, the majority asserts that this


Court should consider all the factors available to the police


in determining whether the stop was justified, regardless of


whether the officers subjectively relied upon those facts.


Citing People v Arterberry, 431 Mich 381, 384; 429 NW2d 574


(1988). In particular, the majority finds significance in the


fact that the defendants drove a “circuitous” route while


being    followed.   I   disagree    with   the   majority   that   a


significant level of suspicion is objectively raised by the


fact that a car full of persons being tailed by a police


officer who doubled back to follow them choose not to drive


the most direct route between two points along the path to an


unknown destination.     First of all, the officer’s suspicions


were apparently aroused before he decided to follow the


defendants, as indicated by his decision to double back and


follow them.     Moreover, it is impossible to say that the


“route” they chose was “circuitous,” when they had not yet


traveled to a specified destination when stopped. At most, we


can conclude that they chose to drive a longer distance than



                               20

necessary between two points.          Moreover, it is entirely


plausible that an innocent defendant would change course,


hoping that the police officer would continue in another


direction.   Further, it is possible that a driver with a car


full of passengers might be distracted in conversation, and


travel in a direction he might not otherwise.          If we are to


look at the objective circumstances of this case, without


regard to the officer’s subjective state of mind, then we must


consider not only factors indicative of guilt, but also other


possible innocent explanations for the defendants’ behavior.


     Objectively viewed, I would not consider the defendant’s


behavior to be particularly suspicious.          Nothing indicates


that these particular defendants had or were about to be


engaged in criminal wrongdoing, as is required for a Fourth


Amendment stop to be valid.          Shabaz at 59.      Rather, the


officer acted upon an inchoate or unparticularized hunch.          I


would,   therefore,   hold   that   Deputy   Elder’s   actions   were


unreasonable under the circumstances, and that the stop was


constitutionally invalid.      See    Whren at 810;    Terry at 27.


As such, the fruits of the illegal stop are subject to an


exclusionary rule analysis.


     The unlawful invasion in this case was an illegal stop of


a vehicle occupied by four men.       The subsequent searches and


seizures of the occupants produced the “fruits” sought to be



                                21

suppressed.       Wong Sun explained that, in determining whether


evidence should be excluded as fruit of the poisonous tree,


the    question    is    “whether,   granting    establishment      of   the


primary illegality, the evidence to which instant objection is


made has come by exploitation of that illegality or instead by


means sufficiently distinguishable to be purged of the primary


taint.”       Id. at 488.       In this case, the evidence obtained


appears to have come about directly by exploitation of the


illegal stop.


       The trial court’s decision to admit the evidence flowing


from    the    stop     was   made   without    consideration    for     the


exclusionary      rule    because    the   decision   was   based   on    an


erroneous conclusion that the stop was reasonable.              The Court


of Appeals affirmance similarly found the exclusionary rule to


be inapplicable.14            Given the illegality of the stop, the


exclusionary rule would be directly implicated.                 I would,


therefore, reverse and remand for a determination of whether


the “fruit” of the illegal stop came about by any legitimate,


distinguishable means that would purge the taint of this


unlawful seizure.


       KELLY , J., concurred with CAVANAGH , J.



       14
       The Court of Appeals affirmed on grounds different than

that offered by the trial court.       However, the Court of

Appeals conclusion that the defendant was lawfully arrested

ignored the illegality of the initial stop. Thus, like the

trial court, the Court of Appeals erred at the outset.


                                     22

