                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 11, 2015
              Plaintiff-Appellee,

v                                                                  No. 319724
                                                                   Wayne Circuit Court
LIONEL WRIGHT,                                                     LC No. 13-005810-FH

              Defendant-Appellant.


Before: HOEKSTRA, P.J., and MARKEY and DONOFRIO, JJ.

PER CURIAM.

       Defendant appeals by right his convictions and sentences after a jury trial of carrying a
concealed weapon (“CCW”), MCL 750.227, felon in possession of a firearm, MCL 750.224f,
possession of a firearm during the commission of a felony, third offense (“felony-firearm”),
MCL 750.227b, and possession with intent to deliver less than 5 kilograms of marijuana, MCL
333.7401(2)(d)(iii). The trial court sentenced defendant to concurrent sentences of one to five
years’ imprisonment for CCW, one to five years’ imprisonment for felon in possession of a
firearm and one to four years’ imprisonment for possession with intent to deliver marijuana, to
be served consecutively to a term of 10 years’ imprisonment for felony-firearm. We vacate
defendant’s convictions and the judgment of sentence, and remand to the circuit court for any
necessary proceedings consistent with the opinion.

                                           I. FACTS

        On June 12, 2013, officers Bryan Bush and James Napier were on patrol in a scout car.
While driving the wrong way on a one-way street in Detroit, Bush noticed a truck, faced in the
correct direction but parked two feet from the curb. Defendant was standing outside the truck
near the driver’s window, apparently conversing with the driver seated in the truck. Bush
stopped his scout car alongside the truck and exited. When he exited the scout car, he observed
defendant turn away and stiffen his arm. Believing defendant was concealing something from
him, Bush directed defendant to approach him and show his hand. Defendant complied, and
when defendant turned toward him, Bush saw a bulge in defendant’s front pants’ pocket. Unsure
of what the bulge was, and out of alleged concern for his safety, Bush met defendant at the front
fender of the truck and conducted a patdown search. He recovered a loaded 9mm pistol from
defendant’s waistband. When defendant could not produce a permit to carry a concealed
weapon, Bush arrested defendant, walked him to his scout car, and continued the patdown

                                               -1-
search. Bush recovered from his search of defendant a grocery bag containing 43 individual
bags of marijuana and $59 in cash.

        Defendant testified on his own behalf. According to defendant, the officers approached
him and asked him questions. When defendant tried to walk away, the officers detained him and
the truck’s driver. The officers searched both men, but they recovered nothing. Napier then
walked into the home in front of which defendant was standing, which defendant stated was his
brother’s home, and after 10 minutes, came outside carrying a white grocery bag. Napier then
whispered something to Bush, who handcuffed defendant. Napier then placed $59 in
defendant’s pocket. The officers released the truck’s driver without further incident.



                                         II. DISCUSSION

                         INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that trial counsel was ineffective for three reasons: (1) failing to move
for a mistrial after the trial court struck Napier’s hearsay testimony, (2) failing to call three
witnesses, and (3) failing to move to suppress the pistol and marijuana as evidence obtained as
the fruit of an illegal seizure. While trial counsel was not ineffective for the first two reasons
defendant asserts, we find trial counsel was ineffective for failing to move to suppress the pistol
and marijuana evidence and will only address that specific argument.

        “A claim of ineffective assistance of counsel presents a mixed question of law and fact.
This Court reviews a trial court’s findings of fact, if any, for clear error, and reviews de novo the
ultimate constitutional issue arising from an ineffective assistance of counsel claim.” People v
Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011) (citations omitted). To preserve a claim
of ineffective assistance of counsel, however, a defendant must move for a new trial or for a
Ginther1 hearing in the trial court. People v Armendarez, 188 Mich App 61, 73-74; 468 NW2d
893 (1991). Defendant did neither, so our review is limited to the appellate record. Id. at 74.

        Michigan follows the standard established by the United States Supreme Court in
Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), to determine if a
defendant has received ineffective assistance of counsel. See People v Hoag, 460 Mich 1, 5; 594
NW2d 57 (1999); People v Pickens, 446 Mich 298, 318; 521 NW2d 797 (1994). “Under this
test, counsel is presumed effective . . . .” People v Frazier, 478 Mich 231, 243; 733 NW2d 713
(2007). “In order to obtain a new trial, a defendant must show that (1) counsel’s performance
fell below an objective standard of reasonableness and (2) but for counsel’s deficient
performance, there is a reasonable probability that the outcome would have been different.”
People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). A defendant asserting an
ineffective assistance claim must overcome a strong presumption that counsel’s tactics



1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -2-
constituted sound trial strategy. People v Sabin, 242 Mich App 656, 659; 620 NW2d 19 (2000),
lv den 463 Mich 1010 (200). People v Rodgers, 248 Mich App 702, 715; 645 NW2d 294 (2001).

        Defendant’s third argument that counsel was ineffective for failing to seek to have the
evidence, a gun and marijuana, found during Bush’s patdown search suppressed because it was
the fruit of an illegal seizure and subsequent search of defendant has merit. We agree with his
analysis.

        The Fourth Amendment of the United States Constitution and the parallel provision of
the Michigan Constitution guarantee the right to be free of unreasonable searches and seizures.
US Const, Am IV; Const 1963, art 1, § 11. Generally, searches and seizures without a warrant
are unreasonable per se. People v Champion, 452 Mich 92, 98; 549 NW2d 849 (1996). Still,
“several categories of permissible warrantless searches and seizures are well established in
Fourth Amendment jurisprudence, including exigent circumstance, searches incident to a lawful
arrest, stop and frisk, consent, and plain view.” People v Barbarich (On Remand), 291 Mich
App 468, 472-473; 807 NW2d 56 (2011) (quotation marks and citations omitted).

        Officers are also permitted to approach an individual in a public area and ask questions.
People v Shabaz, 424 Mich 42, 56-57; 378 NW2d 451 (1985). Such activity is permitted
because it does not amount to a seizure under the Fourth Amendment. Champion, 452 Mich at
98. But an individual approached in such a manner remains free to ignore the officer and go on
his way. Id. A seizure occurs only when “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). A seizure may happen by use of physical force or by submission to an
officer’s show of authority. People v Lewis, 199 Mich App 556, 559; 502 NW2d 363 (1993).

        “In order for any police procedure to have constitutional search and seizure implications,
a search or seizure must have taken place.” People v Frohriep, 247 Mich App 692, 699; 637
NW2d 562 (2001). Bush’s initial decision to stop his patrol car near the truck and exit was not a
seizure under the Fourth Amendment. Bush had done nothing to indicate that the truck, its
driver, or defendant were not free to leave. Rather, Bush’s activity was akin to the simply
permissible conduct of approaching individuals in public and engaging them in conversation,
activity that does not amount to a seizure under the Fourth Amendment. See Champion, 452
Mich at 98; Shabaz, 424 Mich at 56-57.2 But after observing defendant turn away, Bush ordered
defendant to “turn around and come back to [Bush] and show [him] his hand . . . .” Defendant
complied with this request. Once Bush commanded defendant to stop, show his hand, and walk
toward him, a reasonable person would not believe he was free to leave. And, in fact, defendant
submitted to Bush’s show of authority. At that moment, defendant was seized under the Fourth
Amendment. Jenkins, 472 Mich at 32; Lewis, 199 Mich App at 559. See also People v Daniels,
160 Mich App 614, 619; 408 NW2d 398 (1987) (“[I]t appears that for Terry3 purposes a police


2
  Cf. United States v See, 574 F 3d 309, 313 (CA 6, 2009) (a seizure occurred where police
“blocked [the defendant]’s car with his marked patrol car . . . .”).
3
    Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).


                                               -3-
approach for questioning on the street amounts to a consensual encounter, not a Terry stop,
unless there exist intimidating circumstances leading the person to reasonably believe he was not
free to leave or the person rebuffs the police officer by refusing to answer and walking away.”
(footnote added)).

        “Police officers may make a valid investigatory stop if they possess reasonable suspicion
that crime is afoot.” Champion, 452 Mich at 98, citing Terry v Ohio, 392 US 1; 88 S Ct 1868; 20
L Ed 2d 889 (1968) (quotation marks omitted). See also Barbarich, 291 Mich App at 473 (an
investigatory stop, also known as a Terry stop, is permissible “if a police officer has a
reasonable, articulable suspicion to believe a person has committed or is committing a crime
given the totality of the circumstances . . . .”). “Reasonable suspicion entails more than an
inchoate or unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for
probable cause.” Champion, 452 Mich at 98, citing United States v Sokolow, 490 US 1; 109 S Ct
1581; 104 L Ed 2d 1 (1989). The officer’s justification for the stop “must be based on an
objective manifestation that the person stopped was or was about to be engaged in criminal
activity as judged by those versed in the field of law enforcement when viewed under the totality
of the circumstances.” Id. “The detaining officer must have had a particularized and objective
basis for the suspicion of criminal activity.” Id. at 98-99. Once an officer has made a valid
investigatory stop, the officer “may perform a limited patdown search for weapons if the officer
has reasonable suspicion that the individual stopped for questioning is armed and thus poses a
danger to the officer.” Id. at 98.

        While Bush’s decision to stop his patrol vehicle appears to have been prompted by
witnessing a civil infraction, this observation did not allow Bush to stop defendant who was
merely standing next to the improperly parked truck which had someone in the driver’s seat.
Committing a civil infraction may provide justification for an officer’s stop. See People v
Laube, 154 Mich App 400, 407; 397 NW2d 325 (1986) (“[T]he civil infraction provided a
legitimate reason to stop the defendant . . . .”). So although the civil infraction here was a
parking violation, Bush had no reason to suspect that defendant who was standing in the street
talking to the truck’s driver was in any way responsible for how the truck was parked. Indeed,
Bush acknowledged that up until the point defendant turned away with a stiffened arm; he did
not suspect defendant of having committed any illegal act.4 Nor could defendant’s apparent
unwillingness to engage in conversation with Bush justify an investigatory stop. While flight
from officers may heighten an officer’s general suspicions, it “does not alone supply the
particularized, reasoned, articulable basis to conclude that criminal activity [is] afoot that is
required to justify the temporary seizure approved in Terry.” Shabaz, 424 Mich at 62-63. If it
were, an individual who, like defendant here, chose to exercise his right to refuse to speak with




4
  We acknowledge that the United States Supreme Court has held that, in the context of a traffic
stop, an officer effectively seizes everyone inside the vehicle, and that such a seizure of
passengers is reasonable, even absent any particularized suspicion that these passengers are
engaged in criminal activity. Arizona v Johnson, 555 US 323, 327; 129 S Ct 781; 172 L Ed 2d
694 (2009). Here, however, defendant was not a passenger inside the vehicle.


                                                -4-
officers who had not yet seized him would be subject to a Terry stop for no reason other than
choosing to exercise the right to walk away. Id. at 63.5

        That leaves only the reason Bush articulated for supporting his investigatory stop: his
observation that defendant appeared to be concealing something. In Shabaz, our Supreme Court
rejected the notion that concealing an unknown object constitutes sufficient justification for an
investigatory stop. In Shabaz, police seized a suspect after observing four relevant facts: (1) the
defendant was seen at night in a high-crime area; (2) he was observed leaving an apartment
where a number of weapons and narcotics arrests had been made; (3) “after looking in the
direction of the unmarked police vehicle, the defendant was observed ‘stuffing a [small] paper
bag like under his vest’ or ‘in his pants’; and” (4) the defendant ran from police. Shabaz, 424
Mich at 60. Our Supreme Court found that all of these circumstances were insufficient to justify
an investigatory stop. Id. at 60-64. With regard to the defendant’s apparent act of concealing
something from officers, our Supreme Court explained:

               Similarly, defendant’s effort to conceal the paper bag in his vest, by itself,
       did not afford grounds for a stop. There was no evidence that the size or shape of
       the bag suggested that it contained a weapon. It may have contained money,
       liquor, food, jewelry, or any number of small items one might lawfully carry in a
       small bag and wish to conceal from view while walking down a darkened street in
       a high-crime area. It might, on the other hand, have contained unlawful
       contraband or an illegally concealed weapon. It is precisely because the officers
       could only speculate about the contents of the bag that they had no reasonable or
       articulable basis to conclude what its contents were.


5
  While some cases have found that evasive behavior is a factor that may be relied on when
determining if a Terry stop is reasonable, in every case, other circumstances were present which
raised a suspicion that illegal activity had occurred. See Jenkins, 472 Mich 26 (the defendant
acted evasively after police officers initiated a LEIN check; police had been called to a loud
party in a housing complex known for crime and drugs, another tenant had challenged the
defendant’s presence on her porch, the defendant attempted to leave, despite having given
officers his identification, and several individuals invited him into their home to avoid further
contact with the police); People v Oliver, 464 Mich 184; 627 NW2d 297 (2001) (the defendants
avoided eye contact with police; the defendants matched the description of bank robbers who had
committed a recently reported robbery within a quarter mile of where they were stopped, which
was in an area where police believed the robbers had likely fled); Champion, 452 Mich 92 (the
defendants fled from police; the defendants were in a high-crime area, one defendant, known by
the officers as having prior drug and weapons convictions, held his hands in his pockets and
refused several orders to remove them); People v Yeoman, 218 Mich App 406; 554 NW2d 577
(1996) (the defendants fled from police in their vehicle; the defendants were observed using a
coin changer at a car wash after midnight, left several dollars’ worth of quarters in the coin
changer, and arrests had been made for defrauding coin changers the previous day). The present
case is distinguishable: Other than defendant’s somewhat evasive behavior, there were no other
indices of criminal activity or that the officer might be in danger.


                                                -5-
                                              * * *

               Because the police could only guess about what defendant was seeking to
       hide, their speculation did not provide a particularized suspicion of possessory
       wrongdoing, but only a generalized one. [Id. at 61.]

        Bush explained that his belief defendant was concealing something was because he had
observed defendant turn away and stiffen his arm. Still, Bush also acknowledged that he “didn’t
know if [defendant] was trying to hide something or if he had something under his arm or
something under his shirt.” Thus, while citing defendant’s apparent act of concealing something
as justifying his seizure, Bush did not even know if defendant were actually concealing anything
at all. Nor did Bush have any particularized facts to Bush indicating that defendant would likely
be hiding anything illicit. Bush admitted that before he ordered defendant to stop and show his
hands, he had no reason to believe that defendant was engaged in any illegal activity, and
specifically, in a narcotics transaction. Bush explained that in ordering defendant to stop, he was
“just going off of the times that did happen a person had a weapon or was trying to hide or
conceal some kind of contraband.”

        In sum, Bush did not know if defendant were hiding anything, and assuming he was,
Bush “could only guess about what defendant was seeking to hide . . . .” Shabaz, 424 Mich at
61. Bush’s assumption that defendant was concealing a weapon or contraband was merely
speculation based on generalized knowledge. This “speculation did not provide a particularized
suspicion of possessory wrongdoing, but only a generalized one.” Id. Accordingly, Bush was
“entirely without authority to confront . . . defendant and require him to submit to an
investigatory stop and interrogation because, on the basis of what [he] had observed, [Bush] had
no articulable or particularized grounds to suspect, reasonably, that defendant was, had been, or
was about to be engaged in criminal activity.” Id. at 62. Because Bush’s seizure of defendant
was unreasonable, “any evidence derived from that seizure must be suppressed as fruit of the
poisonous tree.” Id. at 65, citing Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d
441 (1963). The pistol and marijuana were recovered because defendant complied with Bush’s
command that he stop—which also required he turn around-- and show his hand. Bush then
observed a bulge in defendant’s pocket, prompting him to conduct a patdown search of
defendant. Because the gun and marijuana were the fruits of an illegal seizure, they should have
been excluded from trial. Shabaz, 424 Mich at 62. Had this evidence been suppressed, patently,
there could have been no valid charges against defendant.

        But because trial counsel never sought to suppress the pistol and marijuana, the question
now is whether trial counsel was ineffective for failing to do so. The failure to file a suppression
motion is not ineffective assistance per se; defendant must still demonstrate that counsel’s
performance was objectively unreasonable. Kimmelman v Morrison, 477 US 365, 384; 106 S Ct
2574; 91 L Ed 2d 305 (1986). “Where defense counsel’s failure to litigate a Fourth Amendment
claim competently is the principal allegation of ineffectiveness, the defendant must also prove
that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the
verdict would have been different absent the excludable evidence in order to demonstrate actual
prejudice.” Id. at 375.



                                                -6-
        This Court has found that where counsel failed to seek suppression of evidence on the
basis of a Fourth Amendment violation that likely would have succeeded, counsel’s performance
was unreasonable and required a new trial. People v Thomas, 184 Mich App 480, 481-483; 459
NW2d 65 (1990). In a somewhat analogous case, this Court found trial counsel ineffective for
failing to invoke marital and confidential communication privileges to prevent the defendant’s
spouse from providing damaging testimony at trial. People v Stubli, 163 Mich App 376; 413
NW2d 804 (1987). Other courts have similarly concluded that where counsel fails to move for
suppression of damaging evidence obtained in violation of the Fourth Amendment, counsel is
ineffective. See, e.g., Perez v State, 284 Ga App 212, 216-217; 643 SE2d 792 (2007) (failure to
seek suppression of stolen items discovered during an invalid search was ineffective assistance
of counsel); Northrop v Trippett, 265 F3d 372 (CA 6, 2001) (counsel was ineffective for failing
to seek suppression of narcotics, obtained in violation of the Fourth Amendment, where the
narcotics were the only basis for the conviction).

        Here, our legal analysis of defendant’s Fourth Amendment rights indicates it reasonably
likely that a motion to suppress would have succeeded and that he has overcome the strong
presumption that counsel’s conduct constituted sound trial strategy. Sabin, 242 Mich App 656,
659. The trial court did not have the opportunity to hear evidence or rule on the issue; however,
the record in this case is more than adequate for this determination. Consequently, we see no
need to remand for an evidentiary hearing. Trial counsel was unquestionably ineffective for
failing to move to suppress evidence of the gun and marijuana as the fruit of an illegal search and
seizure, and without this evidence, there is no evidence against defendant in support of any of
these convictions.

        Defendant raised several other arguments on appeal, but in view of our determination and
resolution of his claim of ineffective assistance of counsel, we need not address them.

        We vacate defendant’s convictions and the judgment of sentence, and remand to the
circuit court for any necessary proceedings consistent with the opinion. We do not retain
jurisdiction.

                                                            /s/ Joel P. Hoekstra
                                                            /s/ Jane E. Markey
                                                            /s/ Pat M. Donofrio




                                                -7-
