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STATE OF MICHIGAN
THIRD CIRCUIT COURT FOR WAYNE COUNTY
CRIMINAL DIVISION

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff,
Case Number: 13-6817-01-FH
-vs- Hon. LAWRENCE S. TALON

SWAYVON NICHOLAS SHERROD,

Defendant.

_________________________________________/

BRIEF IN SUPPORT OF MOTION TO SUPPRESS, OR,
IN THE ALTERNATIVE, FOR AN EVIDENTIARY HEARING

STATEMENT OF FACTS

On July 16, 2013, at or around 12:30 am, Detroit Police Officers Darius Shepherd,
Endrit Fjolla and Brian Laperriere, observed Defendant Sherrod walking down a street.
The officers allegedly saw something unusually heavy in Defendant Sherrods shorts
pocket. The officers stopped to investigate and Officer Shepherd performed a Terry pat
down. Officer Shepherd felt a handgun and subsequently arrested Defendant Sherrod.
After Officer Shepherd arrested Defendant Sherrod, he was transported to a precinct for
processing and later made a statement.
LEGAL ARGUMENTS
Because the police officers lacked reasonable suspicion of a crime, the detention of
Defendant Sherrod was unlawful and the evidence acquired pursuant to that detention should
be suppressed.
The Fourth Amendments limitations on unreasonable searches and seizures govern
state prosecutions by incorporation into the Due Process Clause of the Fourteenth
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Amendment. Mapp v. Ohio, 361 US 643; 81 SCt 1684; 6 Led2d 1081 (1961). Michigan
Constitution 1963, Article 1, Section 11 is the analogous state constitutional provision.
Police officers may make a valid investigatory stop if they possess a reasonable
suspicion that crime is afoot. Terry v. Ohio, 392 US 1, 88 SCt 1868; 20 Led2d 889 (1968).
Reasonable suspicion entails something more than an inchoate or unparticularized
suspicion akin a hunch, but less than the level of suspicion required for probable cause.
United States v. Sokolow, 490 US 1; 109 SCt 1581, 104 Led2d (1989).
A valid investigatory stop must be justified at its inception and must be reasonably
related in scope to the circumstances that justified interference by the police with a
persons freedom. Justification 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.
The detaining officer must have had a particularized and objective basis for the suspicion of
criminal activity.
In People v. Yeoman, 218 Mich App 406, 410; 554 NW2d 577 (1996), this Court
explained the standard as follows:
In analyzing the totality of the circumstances, common
sense and everyday life experiences predominate over
uncompromising standards, and law enforcement officers
are permitted, if not required, to consider the modes or
patters of operation of certain kinds of lawbreakers.
People v. Nelson, 443 Mich 626, 635-636; 505 NW2d 266 (1993).

It is the Defendants argument that the police conduct was unreasonable, and illegal.
It amounted to an illegal arrest, search and seizure. The prosecution will not be able to
meet its burden to establish the legality of the police action. If we look at the totality of the
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circumstances, the police conduct violates the very essence of our constitution and the
intent of the founding fathers.
In People v. Shabaz, 424 Mich. 42; 378 NW2d 451 (1985), Detroit Police Officers
were on patrol when Officer Surma observed the defendant carrying a small paper bag
and then after the defendant looked in the officers direction, the defendant began stuffing
a paper bag like under his vest, or in his pants. Id. 424 Mich. 42, 47. After the defendant
took off running and the officers were able to detain the defendant, Officer Surma
retrieved a closed, brown paper bag which contained a firearm. At the preliminary
examination, Officer Surma testified that he thought the defendant was hiding something,
and that I believed it to be either weapon [sic] or narcotics, and that was the reason [an
officer] stopped the car. Id. at 48. Officer Surma admitted that he had no additional
information or sighting that he had committed a felony or was about to commit a felony. Id.
Detroits Recorder Court granted defendants motion to suppress the evidence and dismiss
the case. Id. at 50.
The Court of Appeals held that Terry v. Ohio, 392 US 1, 88 SCt 1868; 20 Led2d 889
(1968) governed this situation and that insufficient facts and circumstances existed to
provide the police officers with a reasonable belief that criminal activity may have been in
progress . . . [and] [t]he officers pursuit and stop of the defendant was not justified at its
inception and, thus, was an unlawful invasion of defendants Fourth Amendment rights. Id.
at 51. The Michigan Supreme Court followed the standards applicable to investigatory
stops by police, summarized in United States v. Cortez, 449 US 411, 417-418; 101 SCt 690;
66 Led2d 621 (1981), which stated [a]n investigatory stop must be justified by some
objective manifestation that the person stopped is, or is about to be, engaged in criminal
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activity. Id. at 55 (internal citations omitted). Still quoting United States v. Cortez, the
Court followed that the totality of the circumstances the whole picture must be taken
into account [and] [b]ased upon that whole picture, the detaining officer must have a
particularized and objective basis for suspecting the particular person stopped of criminal
activity. Id. at 55 (internal citations omitted).
Continuing the analysis of People v. Shabaz, the Court found that when the police
officers spotted the defendant . . . they did not have probable cause to arrest him. Id. at 59.
The Court found that [w]hile the crime rate in a neighborhood may be valid consideration
to be taken into account when assessing reasonable suspicion . . . that alone would not
establish the grounds for an investigatory stop. Id. at 60. Similarly, defendants 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 that 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. Id. at 61.
Lastly, [c]onsidering the totality of the circumstances with which the police were
confronted before the defendant began to run, it is clear that the officers were entirely
without authority to confront the defendant and require him to submit to an investigatory
stop and interrogation because, on the basis of what they observed, the officers had no
articulable or particularized grounds to suspect, reasonably, that the defendant was, had
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been, or was about to be engaged in criminal activity. Id. at 62. The Supreme Court
affirmed the lower courts ruling stating that Recorders Court properly suppressed the
weapon as evidence. Id. at 67.
The police illegally stopped Defendant Sherrod and illegally searched Defendant
Sherrod without witnessing him commit any crime in their presence. Where a police
officer observes unusual conduct that leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with whom he is
dealing may be armed and presently dangerous . . . he is entitled to the protection of
himself and others in the area to conduct a carefully limited search of the outer clothing of
such persons in an attempt to discover weapons which might be used to assault him.
People v. Shabaz, 424 Mich. 42, 54; 378 NW2d 451 (1985) quoting Terry v. Ohio, 392 US 1,
19-20 (1968).
Our Michigan Supreme Court explained in its ruling that a seizure within the
meaning of the Fourth Amendment occurs only if, in view of all circumstances, a reasonable
person would have believe that he was not free to leave. People v. Mamon, 435 Mich 1, 11
(1990). When an officer approaches a person and seeks voluntary cooperation through
non coercive questioning, there is no restraint on that persons liberty, and the person is
not seized. Florida v. Royer, 460 US 491, 497-498 (1983).
In Terry our United States Supreme Court held that in the interest of safety, a police
officer may stop a person in the absence of probable cause under certain circumstances.
Terry v. Ohio, 392 US 1, 27 (1968). Specifically, a police officer may conduct a brief
investigatory stop, a Terry stop, of a person if the officer has a reasonable suspicion,
supported by specific articulable facts, that criminal activity has occurred or is about to
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occur. United States v. Atchley, 474 F.3d 840, 847 (6th Cir. 2007). When evaluating an
investigatory Terry stop, this court engages in a two-part analysis of the reasonableness of
the stop. United States v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006) (quoting United
States v. Davis, 430 F.3d 345, 354 (6th Cir. 2005)). We first ask whether there was a
proper basis for the stop and, if the stop was proper, then we must determine whether the
degree of intrusion . . . was reasonably related in scope to the situation at hand. United
States v. Smith, 584 F.3d 530, 536 (6th Cir. 2010) (quoting Caruthers, 458 F.3d at 464). This
determination is made in light of the totality of the circumstances. United States v. Arvizu,
534 U.S. 266, 273 (2002). See also, People v. Oliver, 464 Mich. 184 (2001); and People v.
Steele, 292 MA 308 (2011).
Defendant Sherrod was merely walking down the street without his shirt on while
possessing items in his pocket. The officers merely observed a heavy pocket which led
them to search Defendant Sherrod. When making a determination of reasonable suspicion
for an investigative stop, the relevant inquiry is the degree of suspicion that attaches to
particular types of noncriminal acts. United States v. Sokolow, 490 US 1, 109 SCt 1581, 104
Led2d 1 (1989); United States v. Anderson, 754 F. Supp. 442 (E.D. Pa. 1990). Defendant
Sherrods noncriminal act of having something in his pocket should not provide the
necessary reasonable suspicion for a valid, or legal, investigative stop.
RELIEF REQUESTED
The defense submits an Evidentiary Hearing should establish that the officers
observations did not give rise to the level of reasonable suspicion necessary to justify an
investigative stop. The Evidentiary Hearing should show that the officers observations
closely follow that of the officers in People v. Shabaz, supra, and show that the pocket may
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have contained any number of things that are neither unlawful contraband nor illegally
concealed weapons. The subsequent search and seizure was illegal and any evidence
obtained should be suppressed.
WHEREFORE, Defendant Sherrod respectfully requests this HONORABLE COURT
grant his Motion to Suppress, or in the alternative, for an Evidentiary Hearing.


Respectfully submitted,


_____________________________________________
PATRICK ERWIN NYENHUIS (P76343)
Attorney for Defendant
615 Griswold Street, Suite 1300
Cell: 313.244.3500
Fax: 313.457.2040
Dated: September 6, 2013