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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 11, 2017

v No. 331151 Wayne Circuit Court WALTER E. COX, LC No. 00-011035-01-FH

Defendant-Appellant.

Before: T ALBOT , C.J., and K. F. K ELLY and B ORRELLO , JJ.

P ER C URIAM

. Following a bench trial in 2001, the trial court convicted def endant of possession of less than 25 grams of cocaine, MCL 333.7403(2)(a)( v ), felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony, MCL 750.227b. Defendant failed to appear for his scheduled sentencing, and he was not sentenced for his convictions until nearly 15 years later in 2015. The trial cou rt imposed a one-year suspended jail sentence for the possession of cocaine conviction, and a prison sentence of one to five years for the felon-in-possession convicti on, to be served consecutive to a two-year term of imprisonment for the felony-firearm convicti on. Defendant appeals as of rig ht. For the reasons set forth in this opinion, we affirm defendant’s c onvictions and sentences, but r emand for the ministerial task of correcting the pres entence investig ation report.

I. BACKGROUND

At a hearing on January 22, 2001, defendant waived his right t o a jury trial, and trial was scheduled for March 12, 2001. Defense counsel advised that a m otion to suppress had been filed with the trial court, but a hearing date was necessary. The ba sis for the motion was that the police illegally searched the trunk of defendant’s vehicle. Sp ecifically, defendant argued that police did not have reasonable suspicion to warrant an investig atory stop and that the stop did not lead to probable cause to justify arresting defendant. The parties agreed with the trial court’s suggestion to use the testimony a t trial to decide the motion.

At trial the following events were revealed: On September 13, 2000, at approximately 6:00 p.m., Detroit Police Officer David Salazar drove to a resi dence on Appoline to execute a search warrant; his role was to provide outside security at the location. He was in uniform and driving a marked scout car. Salazar observed a Jaguar parked i n the street “just off the driveway” north of the home to be searched. Defendant stood at the rear of the vehicle with the-2- trunk open, but reached into his waistband with his right hand and quickly threw a small black object into the trunk. He was approximately four to five feet away from the police car and looked at the officer when he tossed the object. Because it ha ppened so quickly, the officer was unable to get a good look at the object. Salazar advised his p artner, Officer Bryan Gilbert, of his observation, and exited the vehicl e to investigate the object thrown into the trunk. As he investigated, Gilbert detained d efendant. A gun was found lyin g on top of clothes in the trunk, and it was the only black object. The gun was a .38 caliber handgun, and the serial number was defaced. Defendant was placed under arrest.

Salazar testified that he never saw defendant come from the ho me that was the subject of the search warrant. He further admitted that he was unable to determine what the black object was at the time it was removed from defendant’s waistband. Upo n observing the Jaguar, Salazar was more concerned with defendantthan the raid because of offi cer safety issues.

On the day of the raid, Gilbert was working for the narcotics division and was partnered with Salazar to provide outside security. Gilbert saw a Jaguar parked on the street with the trunk open, and he observed defendant at the vehicle when they pulled up alongside it. Gilbert received information from his partner that caused him to detain defendant by holding his jacket for a second and then standing next to him. Defendant was appr oximately 10 feet from the Jaguar when Gilbert made contact, and defendant did not try to flee. He justified the detention by citing officer safety and defe ndant’s location in front of t he home to be raided. Salazar went to the trunk and removed a dark color revolver. Gilbert asked defendant if he had a permit for the weapon, and he said no. At th at time, defendant was taken into custody, and a search incident to his arrest was conduc ted. From defendant’s right p ants pocket, the officers discovered a plastic bag that cont ained a substance that testedpositive for cocaine. On crossexamination, Gilbert acknowledged that he did not see defendant toss any object or look in the trunk.

The trial court summarized t he testimony and then held as foll ows:
The first issue is the defendant’s motion to suppress the gun and his arrest on the basis that the police had no reason to stop and investig ate him. Officers Salazar and Gilbert were assigned the duty of perimeter security. It was their job to maintain the safety of the officers as they approached the h ouse, that is, that they had the responsibility of covering the officers’ backs. P art of this responsibility is to investigate any suspicious behavior of peo ple in the area of the target house. To stop and investigate someone, they only need to have reasonable suspicion.

Under these circumstances, a man standing in front of an open trunk about 25 feet from a house about to be raided would mandate that the police at least speak to him. The fact that he was seen to toss something into the trunk only enhances the reasonableness of the suspicion. Had Mr. Cox clos ed the trunk and started walking towards anothe r house that suspicion would have been significantly reduced but that did not happen.-3- Officer Salazar seeing the gun was not a search. The gun was in plain view. Once the officers saw th e gun, they had probable cause t o arrest and search Mr. Cox. The motion to suppress the evidence is denied.

The trial court found defendant guilty as set forth above. Alt hough sentencing was scheduled for April 4, 2001, defendant did not appear and a capias issued. D efendant was sentenced nearly 15 years later on December 3, 2015. This appeal ensued.

II. FOURTH AMENDMENT

Defendant argues that the trial court erred in denying his mot ion to suppress the contraband that police seized on his person following his arres t in violation of his Fourth Amendment rights.

i. STANDARD OF REVIEW

The court’s ultimate ruling on the motion to suppress is revie wed de novo. People v Williams , 472 Mich 308, 313; 696 NW2d 636 (2005). Questions of law, in cluding constitutional issues, pertaining to a motion to suppress are reviewed de novo

. People v Keller , 479 Mich 467, 473; 739 NW2d 505 (2007). To the extent that the trial court m ade findings of fact, those findings are reviewed for clear error. People v Elliott , 494 Mich 292, 300; 833 NW2d 284 (2013).

ii. GOVERNING LAW

The Fourth Amendment of the United States Constitution, US Con st, Am IV, and the Michigan Constitution, Const 1963, art 1, section 11, guarantee the right to be free from unreasonable searches and seizures. People v Slaughter , 489 Mich 302, 310-311; 803 NW2d 171 (2011). Absent a compelling reason to impose a different i nterpretation, Michigan’s constitutional prohibition agai nst unreasonable searches and se izures must be construed as providing the same protection as that guaranteed by the Fourth Amendment. People v Green

, 260 Mich App 392, 396; 677 NW2d 363 (2004). The Fourth Amendme nt search and seizure restrictions protect citizens ag ainst unlawful brief investigat ive detentions. See id. However, in Terry v Ohio , 392 US 1, 21, 30-31; 88 S Ct 1868; 20 L Ed 2d 889 (1968), the United States Supreme Court held that the Four th Amendment permits police to make a brief investigative stop and detention of a person if the officer has a reasonable, arti culable suspicion that criminal activity is afoot. The police may also make a Terry investigatory stop and brief detention of a person who is in a motor vehicle if the officer has a reasonabl e, articulable suspicion that the person is engaged in criminal activity. People v Oliver , 464 Mich 184, 192; 627 NW2d 297 (2001); People v Whalen , 390 Mich 672, 682-683; 213 NW2d 116 (1973).

When determining reasonableness, the court must consider whethe r the facts known to the officer at the time of the stop would warrant an officer of reasonable caution to suspect criminal activity. Terry , 392 US at 21-22. Good faith on the part of the officer is no t enough to justify an investigatory stop. Id. at 22. Similarly, an “inchoate and unparticularized suspicion or ‘hunch’” is not sufficient. People v LoCicero (After Remand) , 453 Mich 496, 502; 556 NW2d 498 (1996), quoting Terry , 392 US at 27. Instead, “[t]he reasonableness of an officer’s suspicion-4- is determined case by case on the basis of the totality of all the facts and circumstances.” LoCicero , 453 Mich at 501-502. “[I]n 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 officer s, not legal scholars . . . .” Oliver , 464 Mich at 192 (quotation marks omitted). An officer’s conc lusion must be drawn from reasonable inferences based on the facts in light of his traini ng and experience. Terry, 392 US at 27. Fewer foundational facts are necessary to support a findin g of reasonableness when moving vehicles are involved, than if a house or a home were involved. Whalen , 390 Mich at 682. Furthermore, a stop of a motor v ehicle for investigatory purpos es may be based upon fewer facts than those necessary to support a finding of reasonableness whe re both a stop and a search is conducted by the police. Id.

iii. APPLICATION

In this case, Officers Salazar and Gilbert made an investigato ry stop when they approached defendant who was standing next to a vehicle, detain ed defendant, and looked in his trunk. Although defendant was not formally arrested at this po int, he was nevertheless detained because a reasonable person in his position would not have felt free to leave. See People v Vaughn , 291 Mich App 183, 189; 804 NW2d 764 (2010) (noting that in de termining whether a person is detained in police cust ody, “[a] key question is whet her, under the circumstances, a reasonable person woul d have felt at liberty to terminate the i nterrogation and lea ve—that is, was there a formal arrest or a rest raint on freedom of movement of the degree associated with a formal arrest.”) Thus, in order for the warrantless detention and investigation to have been lawful, the officers needed to have a reasonable, articulated s uspicion that defendant was engaged in criminal activity. Terry , 392 US at 30-31.

Here, the totality of the circumstances would have allowed an officer of reasonable caution to have a particularized suspicion that defendant was i nvolved in criminal activity. Id

. The officers were part of a team tasked with executing a searchwarrant of a suspected drug house. Salazar was responsible f or providing exterior security for the officers who were entering the home. Salazar observed a vehicle parked next to the drivew ay of the home. The trunk to the vehicle was open and defendant was standing next to the trunk. Standing alone, defendant’s presence in a high-crime area w ould not have been enough to cre ate reasonable suspicion that defendant was engaged in unlawful activity. Illinois v Wardlow , 528 US 119, 124; 1 20 S Ct 673; 145 L Ed 2d 570 (2000). However, “offi cers are not required to ignore relevant characteristics of a location in determining whether the circumstances are suffici ently suspicious to warrant further investigation.” Id . Here, considering defendant’s location in conjunction with h is subsequent actions, Salazar had reasonable su spicion to suspect criminal a ctivity. Specifica lly, after noticing that defendant was standing next to the vehicle with an open trunk, Salazar then watched as defendant removed a small black object from his waistband—a com mon area where individuals keep guns—and tossed the object into the trunk of the car.

Importantly, defendant’s furtive movements occurred after he n oticed that police were in the area as he looked in Salazar’s direction while he threw the object into the trunk. The Supreme Court has explained that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Wardlow , 528 US at 124. While Wardlow involved flight at the sight of police officers, “flight is not th e only type of ‘nervous evasi ve behavior.’” United States v-5- Caruthers , 458 F 3d 459, 466 (CA 6, 2006), quoting Wardlow , 528 US at 124. Rather, “[f]urtive movements made in response to a police presence may also proper ly contribute to an officer’s suspicions.” Caruthers , 458 F 3d at 466. In this case, review of the totality of the circumstances leads us to conclude that defendant’s conduct of removing a dark-colored object from his waistband and tossing it into the trunk upon sight of the polic e, coupled with the fact that defendant was near a suspected drug house, would have allowed areasonable officer to have a reasonable suspicion that defendant was engaged in criminal act ivity—i.e. that he unlawfully possessed a firearm—and was attempting to conceal it from polic e. Thus, under Terry , Salazar and Gilbert had reasonable susp icion to conduct a n investigatory stop of defendant. Terry , 392 US at 27.

The totality of the circumstan ces further provided reasonable suspicion to justify defendant’s brief detention to investigate whether the object t ossed into the trunk was evidence of criminal activity or presented a concern for the safety of t he officers. According to Salazar, when he approached the car, he looked into the trunk and he sawa black gun “out in the open” lying in the trunk. There were some clothes in the trunk, but no other hard or visible objects. Because the gun was in plain view and its incriminating charact er apparent, and the car was parked on a public street where Salazar had the legal right to be, Salazar was permitted to seize the gun under the plain view exce ption to the warrant requireme nt. People v Champion , 452 Mich 92, 101, 549 NW2d 849 (1996) (“The plain view doctrine all ows police officers to seize, without a warrant, items in plai n view if the officers are lawf ully in a position from which they view the item, and if the item’s incriminating character is imm ediately apparent.”)

Defendant notes that Salazar ne ver indicated whether defendant closed the trunk after tossing the object inside and Salazar did not indicate whether he reopened the trunk. Defendant also notes that co-defendant Swa nigan testified the trunk was n ever open. However, a review of Salazar’s testimony supports the trial court’s factual finding that the gun was in plain view when Salazar approached and looked i nto the trunk. Salazar testifie d as follows:

Q . Did you go over and look in the trunk?

A . Yes, I did.

Q . What did you see, if anything?

A . There was a gun laying in the trunk.

Q . Okay. Was it laying out in t he open or did you have to sear ch for it?

A . Out in the open.

Salazar testified that the gun wa s in the open, and there was n o testimony that defendant closed the trunk after Salazar saw him toss an object inside. Instead , the testimony supported that Salazar and Gilbert approached d efendant immediately after he t ossed the object in the trunk; Gilbert detained defendant whi le Salazar approached and looked inside the open trunk. When Salazar saw the gun in plain view, he seized it. The officers’ conduct fell within the scope of the Terry stop. Moreover, even if defe ndant had closed the trunk, becau se Salazar observed defendant toss a small object into the trunk, and given that th e police were searching a nearby-6- drug house, he had reasonable suspicion that the trunk containe d evidence of criminal activity. Thus, the scope of the proper Terry stop extended to the c ontents of the trunk.

In addition, given Salazar’s obs ervations that defendant had r emoved the object from the waistband of his pants, that defendant tossed the object into t he trunk, and that the gun was the only object observed in the trunk, Salazar had probable cause t o believe that the gun was the object that defendant possessed and threw into the trunk. Afte r defendant denied having a permit for the gun, the police had proba ble cause to arrest defendant for unlawful possession of a firearm. See People v Reese , 281 Mich App 290, 294-295; 761 NW2d 405 (2008) (“[i]n order t o lawfully arrest a person without a warrant, a police officer mu st possess information demonstrating probable cause to believe that an offense has occ urred and that the defendant committed it.”)

Furthermore, after police arrested defendant, the officers wer e authorized to conduct a search of defendant’s person inci dent to the lawful arrest. Th e search of a defendant following his arrest is justified under l ong-established law. “Among the exceptions to the warrant requirement is a search incident to a lawful arrest,” which “ex ception derives from interests in officer safety and evidence preservation that are typically imp licated in arrest situations.” Arizona v Gant , 556 US 332, 338; 129 S Ct 1710; 173 L Ed 2d 485 (2009). Unde r this exception, both “the arrestee’s pe rson and the area within his immediate control” are subject to a warrantless search at the time of the arrest. Id . at 339 (quotation marks and citations omitted).

In this case, as noted above, the police had probable cause to arrest defendant for unlawful possession of a firearm. Given that defendant possess ed a handgun, and considering that he was near a suspected drug house, the basis on which a s earch incident to a lawful arrest were met—the officers had a reasonable belief that a search of defendant’s person was necessary for their own safety and for the preservation of potentially in criminating evidence. Id

. Accordingly, the officers did not violate defendant’s Fourth Am endment rights when they searched him following the arres t and discovered cocaine on his person. Id

.
Defendant cites People v Shabaz , 424 Mich 42; 378 NW2d 451 (1985) in support of his argument that evidence of the cocaine should have been suppress ed. In Shabaz , the defendant was observed by a plain clothes police officer leaving an apartment building carrying a small brown paper bag. The defendant looked in the officer’s directi on and began to stuff the paper bag under his vest or into his pants. The unmarked vehicle slo wed as the defendant passed and nearly came to a complete stop when the defendant began to run. A chase ensued, and the defendant ran into a building. As the chasing officer was abou t to enter the building, the defendant came out. The officer entered the building’s vestibu le and retrieved a closed, brown paper bag containing a blue steel revolver. Id . at 46-48. However, the o fficer acknowledged that he was unfamiliar with the defendant, the defendant did not app ear to be hiding anything, and other individuals in the neighborhood carried bags similar to t hose held by the defendant because of a nearby supermarket. Id . at 48. Our Supreme Court held that the seizure was unreasona ble because the officers were not in the area investigating a crime , a crime was not linked to the defendant, and the officers coul d only guess at the contents of the paper bag. Id . at 64-65.

Defendant’s reliance on Shabaz is misplaced. In the present case, the police were preparing to execute a search warrant of a suspected drug house when they observed defendant-7- attempt to conceal a small black object upon him seeing police in the area. When the officers came upon defendant, he looked at the officers and then tossed a dark object from his waistband into the open trunk. Considering that furtive movements may be considered in conjunction with the nature of the area where defendant was present, Wardlow , 528 US at 124, here, unlike in Shabaz , the totality of the circumstances was sufficient to give rise to a reasonable suspicion that defendant was engaged in criminal activity. Terry , 392 US at 27.

In sum, the trial court did not err in denying defendant’s mot ion to suppress the cocaine evidence where the officer’s in itial detention, investigation, arrest and search of defendant’s person fell within exceptions to the Fourth Amendment’s warrant requirement.

II. SENTENCING

Defendant next argues that he is entitled to resentencing beca use of inaccurate information in the presentence i nvestigation report (PSIR).

“A defendant is entitled to be sentenced on the basis of accur ate information.” People v Francisco , 474 Mich 82, 88; 711 NW2d 44 (2006). Defendant argues, and t he state does not dispute, that the PSIR inaccurately stated that defendant was s entenced to a jail term in 2000 for violating his probation for a 198 1 conviction of receiving or c oncealing stolen property. Defendant has submitted court records showing that he was arrai gned in 2000 for violating his probation related to the 1981 conviction, but that his probatio n was terminated. However, this error does not entitle defendant to resentencing because there is no basis to conclude that the trial court relied on the inaccuracy when sentencing defendant. MCL 769.34(10); People v Jackson

, 487 Mich 783, 792; 790 NW2d 340 (2010).

Specifically, the trial court imposed a one-year jail term for defendant’s possession of cocaine conviction, which it then agreed to suspend. The felon y-firearm sentence was mandated by statute. MCL 750.227b. The trial court imposed a minimum s entence of one year for defendant’s felon-in-possession conviction, which was within th e sentencing guidelines range of 5 to 23 months. Defendant does not contend that the inaccuracyregarding the disposition of his probation violation for the 1981 conviction had any effect on the scoring of the guidelines. Moreover, the trial court made no reference to the 1981 convict ion or the probation violation for that conviction when imposing the sentence. The discussion at sentencing focused on defendant’s failure to appear for his original scheduled senten cing in 2001, and the trial court’s rejection of defendant’s claim that he was not aware of his obl igation to appear for that proceeding. The court acknowledged that defendant was not char ged with any new crimes in the last 15 years, but stated that t his did not excus e his failure to appear for his original sentencing. Because there is no reasonable basis for concluding that the in accuracy related to the disposition of the 2000 probation violation arising from the 1981 convictio n had any effect on defendant’s sentence, defendant is not en titled to resentencing. Jackson , 487 Mich at 792. However, remand for the ministerial task of correcting the PSIR to accurately r eflect that defendant’s 2000 probation violation did not resul t in a jail term is appropriat e. People v Harmon , 248 Mich App 522, 533; 640 NW2d 314 (2001).-8- Affirmed and remanded for correction of the presentence report in accord with this opinion. We do not retain jurisdiction.

/s/ Michael J. Talbot /s/ Kirsten Frank Kelly /s/ Stephen L. Borrello