                           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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED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.

STEPHENS, J. (Concurring in part, dissenting in part)

       I write to concur in the result of the majority but to depart from a portion of their
analysis.

         The majority focused their analysis on the conclusion that the actions of police would not
lead a reasonable person to believe that they were not free to go. While I disagree with that
conclusion, I concur with their ultimate determination that no seizure of person occurred in this
case until the defendant was physically restrained by the officers. That seizure was made, after
the chase and after the defendant abandoned the contraband weapon. My colleagues focused on
the enumerated factors in Mamon, 435 Mich 1. However, nothing in that case either suggests
that its enumerated factors are exhaustive or that the legal principle of examination of the totality
of circumstances is limited by the factors enumerated in Mamon.

        My review of the facts in this case leads me to conclude that a reasonable person would
have believed himself to be constrained prior to the chase. When the officers first encountered
the defendant and his companion, they were pedestrians lawfully proceeding on a sidewalk early
in the morning. The uniformed officers drove alongside them in a marked patrol car. In the light
most favorable to the prosecution, the defendant and his companion made eye contact with the
officers and exhibited apprehensive behavior and made the decision to reverse their trajectory or
“ backtrack” away from the officers. In response, the patrol car changed its trajectory and one of
the officers turned his flashlight on the two men. In the context of 2017, two African-American
men could reasonably believe that they were not free to proceed. However, as Justice Scalia
wrote in California v Hodari D, in order for the seizure to occur absent actual physical restraint,
the seized person must comply with the seizure or stop. 499 US 621, 626-627; 111 S Ct 1547;
113 L Ed 2d 690 (1991). The defendant was not physically restrained and he made the decision



                                                -1-
to run. The officers lawfully gave chase. Thus, as the majority correctly concluded, no seizure
occurred prior to the defendant’s abandonment of the gun.



                                                          /s/ Cynthia Diane Stephens




                                              -2-
