PLEASE TAKE NOTICE Patrick A. Maizy, Attorney at Law, as attorney for Defendant [REDACTED], motions this Honorable Court to suppress evidence related to the charge in the above-captioned case:

Facts

1. In May of 2018, Officers ______ were dispatched to the ______ in [REDACTED], MI based upon a report of disorderly conduct.

2. Upon arrival, Officer made contact with the complainant.

3. Per the police report, the complainant informed Officer of the following: i. Complainant observed a male, in the trees behind a grey _____, with his back to her, begin to shake; [see footnote 1 of accompanying brief in support] ii. Complainant left the store; iii. Complainant returned to the store; and, iv. Complainant observed the same vehicle pull back into the parking lot.

4. Deputy then made contact with Defendant [REDACTED] and passenger, who were in a grey Dodge.

WHEREFORE, Defendant hereby seeks suppression of any and all evidence obtained upon and after the aforesaid police contact with Defendant.

Respectfully submitted,

PATRICK MAIZY (P79503)

Attorney for Defendant

p. (248) 388-8363

f. (248) 928-2271

e. patrick@maizylaw.com

Dated: January 14, 2021

Proof of Service The undersigned hereby certifies that the Defendant’s Motion to Suppress was served upon City Attorney at her above-listed email address, and upon this Honorable Court at its known fax number, on January 14, 2021.

Brief in Support of DEFENDANT’S MOTION TO SUPPRESS

In the case at bar, being that at the time of the investigatory stop, reasonable suspicion did not exist, Defendant contends that any and all evidence obtained thereafter should be suppressed as fruit of the poisonous tree under extension of the exclusionary rule. Nardone v. United States, 308 U.S. 338 (1939); see also Mapp v. Ohio, 367 U.S. 643 (1961).

I. Police-Citizen Encounters

a. Summary of Law

The Fourth Amendment protects citizens from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1 (1968). Generally, seizures conducted without warrant are presumptively unreasonable, and therefore unconstitutional. People v. Champion, 452 Mich. 92 (1996). The reasonableness of a Fourth Amendment seizure balances the governmental interest that justifies the intrusion against an individual’s right to be free of arbitrary police interference. Terry at 20-21. See also People v. Barbarich, 291 Mich. App. 468 (Mich. App. 2011). The federal constitutional protections against unreasonable searches and seizures have been extended to state proceedings through the Due Process Clause of the Fourteenth Amendment. People v. Bloxson, 205 Mich. App. 236 (Mich. App. 1994); see also Mapp at 644. The Michigan Constitution does not provide more protection than its federal counterpart, and as such, in the case at bar, the Defendant’s federal constitutional rights are implicated, and federal law is applicable in determining the issue presented in this case. Bloxson at 241; see also People v. Toohey, 438 Mich. 265 (1991). In United States v. Johnson, 910 F.2d 1506 (C.A. 7, 1990), the court laid out the extent of Fourth Amendment protections in the three categories of encounters between the police and citizens: 1) an arrest, for which the Fourth Amendment requires that police have probable cause to believe that a person has committed or is committing a crime; 2) an investigatory stop, which is limited to a brief, non-intrusive detention, and is also a Fourth Amendment 'seizure,' for which the officer needs to have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime, and 3) an encounter that has no restraint on the citizen's liberty characterized by an officer seeking the citizen's voluntary cooperation through non-coercive questioning, which is not a seizure within the meaning of the Fourth Amendment. See Bloxson at 241.

b. Application of Facts In the case at bar, we are presented with a Fourth Amendment seizure. In United States v. Bloom, 975 F.2d 1447 (C.A. 10, 1992), the court decided that a seizure of the defendant occurred when a narcotics agent questioned the defendant on a train without first advising Defendant that he was free to decline the agents’ request, or to terminate the encounter. See Bloxson at 244. Similarly, in the case at bar, Defendant was inside of an automobile when the officers in question parked their police vehicle near the Defendant, approached the Defendant, began questioning the Defendant, and did not advise the Defendant that he was free to decline the agents’ request, or to terminate the encounter. (see Exhibit 1 - Statement of Defendant). Furthermore, in United States v. Wilson, 953 F.2d 116 (C.A. 4, 1991), the court held that an officer’s persistent questioning of a Defendant constituted an investigative detention. In the case at bar, the officer repeatedly asked the Defendant if he had urinated in the trees, to which the Defendant initially responded that he had not. (see Exhibit 1). Finally, in Michigan v. Chesternut, 486 U.S. 567 (1988), in determining whether a seizure had occurred implicating Fourth Amendment protections, the court stated that, “the appropriate test is whether a reasonable man, viewing the particular police conduct as a whole and within the setting of all of the surrounding circumstances, would have concluded that the police have in some way restrained his liberty so that he was not free to leave.” In the case at bar, it would be untenable to assume that a reasonable person, being approached by officers who just recently parked their car within feet of his, and who had begun approaching his vehicle from either side, would be free to simply drive away. (see Exhibit 1). Based on his liberty having been restrained, Defendant contends that the stop in question was at the very least an investigative stop.

II. Reasonable Suspicion

a. Summary of Law

Next, we must decide whether the investigative stop was justified. In People v. Shabaz, 424 Mich. 42 (1985), the court held that the criteria for a constitutionally valid limited intrusion upon a citizen’s liberty are that the police must have a particularized suspicion, based on an objective observation, that the person stopped has been, is, or is about to be engaged in criminal wrongdoing. See Brown v. Texas, 443 U.S. 47 (1979). Articulable reasons, founded suspicion, or particularized suspicion that criminal activity is afoot, must derive from the police officer’s assessment of the whole picture–the totality of the circumstances with which he is confronted. Shabaz at 60.

In Florida v. J.L., 529 U.S. 266 (2000), the court stated that anonymous tips cannot form the basis for reasonable suspicion if not accompanied by specific indicia of reliability. Despite the government’s significant interest in apprehending the suspect, being that he was said to be in possession of a gun, the court nonetheless invalidated the search. Id. In this case, the court held that the tip in question, namely that the suspect was a ‘really young black male wearing a plaid shirt at the bus stop,’ did not contain “any qualifying indicia of reliability.” Id. at 272. In Sibron v. NY, 392 U.S. 40 (1968), the court held that furtive gestures, including but not limited to police having witnessed eight (8) hours of suspect interacting with known drug addicts, may have aroused the officer’s general suspicion, but without some additional specific knowledge on the part of the officer, they were insufficient to justify an intrusion. [See also People v. Terrell, 77 Mich. App. 676 (Mich. App. 1977), holding that Defendant throwing a pill bottle under his seat upon being approached by an officer was a furtive gesture not enough to form the basis for reasonable suspicion; Keego Harbor v. Lunkins, unpublished, where the court held that hand-signals of a gun made on the road from one driver to another were not enough to justify a stop; and lastly, People v. Pitts, 40 Mich. App. 567 (1972), stating that “if words are frequently ambiguous, gestures are even more so.”]. Finally, in Shabaz, the court held that an officer’s witnessing of a suspect, at night, in a high-crime area, who stuffed a paper bag down his pants upon noticing officer’s unmarked vehicle, before taking off running, was not enough to form the requisite objective basis for the particularized suspicion that criminal wrongdoing was afoot […]. Shabaz at 61.

b. Application of Facts

In the case at bar, the complainant merely stated that she saw someone standing in the trees with his back to her, who began to shake. She indicates that the individual entered into a grey Dodge Durango and left the premises. At some point later in time, the complainant is said to have seen the same vehicle return to the parking lot. Upon this information, the officer embarked upon an investigatory stop. Defendant contends that reasonable suspicion could not have existed for a multitude of reasons. For one, no indicia of reliability, as necessitated by Florida v. J.L., supra, existed that justified the officer’s relying upon the witness herself. The witness was not a police officer, nor was she a known informant. There is nothing in the record to indicate that this witness was reliable. Furthermore, the government interest in apprehending the Defendant at bar was less than that in the aforementioned case(s), given that Defendant was suspected of public urination as opposed to felony drug or gun possession. Assuming arguendo that the witness was reliable, and the threat was substantial, the witness’s statements regarding what she saw could not have possibly constituted a valid basis for forming reasonable suspicion. The witness is not said to have stated that she saw any amount of urine whatsoever. In fact, she expressly states to the officer that she did not see the Defendant’s penis. The basis for her contention to the Officer that the Defendant was urinating was simply that he began to shake. This is similarly innocuous to the furtive gestures that were not enough to serve as the requisite basis for reasonable suspicion in Shabaz, Terrell, Lunkins, and Pitts (see above). For these reasons, the witness’s observations could not have formed the basis for the officer’s suspicion such that an investigatory stop was reasonable.

Next, the complainant is said to have informed the officer explicitly that the male she witnessed standing in the trees left the premises. Per the officer, the witness states that at some point later on, the witness saw the same vehicle return to the ___. However, this contention is not corroborated by any degree of particularity as necessitated by People v. Shabaz, supra. The witness is not said to have stated that she read the license plate on the vehicle before it left and after it returned. She does not point to any identifying factors other than, presumably, the vehicle having been a grey Dodge Durango, which she later identifies in her statement as having been “black/silver.” It is untenable, based on the number of grey Dodge Durango that have been sold in [REDACTED], to assume that because a grey Dodge Durango subsequently entered the parking lot, that this was in fact likely to be the same grey Dodge Durango that had returned.

Now, once again assuming arguendo that this was a reliable witness, that the threat was substantial, that the gestures the witness observed were criminal in nature, and that the vehicle that left the parking was in fact the same vehicle that returned, the witness’s observations still fall remarkably short of what is necessitated to form the basis of reasonable suspicion. The witness is not said to have identified whether the vehicle that returned to the parking lot was occupied by the same individual(s). Stated differently, even if this so happened to be the same grey Dodge Durango, these very well could have been completely different occupants, as no indication was made as to what the individuals were wearing, looked like, or any other particularized information. The evidence in this case falls much short of that in J.L. v. Florida, as well as People v. Shabaz, and in those cases, the evidence was found to have been insufficient to form the basis for reasonable suspicion.

WHEREFORE, Defendant hereby seeks suppression of any and all evidence obtained upon and after the aforesaid police contact with Defendant. In the alternative, Defendant hereby asserts its claim and defense, that based upon the legalization of marijuana possession under the MRTMA, and the Doctrine of Abatement, the charge for possession of marijuana in this case should be dismissed.