Search & seizure; Motion to suppress evidence; Investigatory stop; People v Barbarich; CCW; MCL 750.227(2); People v Jones; Permissibility of police approaching a person in a public place & asking questions; Concealed pistol license (CPL)

The court concluded that the trial court’s finding that the handgun on defendant’s person could not be considered “concealed” if it was apparent to the arresting officers was clearly erroneous, and that the officers had a reasonable, articulable suspicion that he was illegally carrying a concealed handgun. Thus, it reversed the grant of his motion to suppress and remanded for reinstatement of the charges. Defendant argued that his gun was not concealed but instead “was being carried consistent with Michigan’s open carry law.” Thus, he contended that the officers’ investigatory stop was unjustified and violated his Fourth Amendment rights. The court noted that they approached him “only after they saw a partially concealed handgun in the waistband of defendant’s pants. Defendant had been leaning over his vehicle checking his oil when the handle of his gun became visible from around his coat. Thus, it appears that the handgun would not have been even partially visible if defendant had been standing up straight and not leaning over his vehicle so as to cause his coat to fall forward and expose the gun in his waistband. In other words, persons who would come into ordinary contact with defendant would not have easily seen that” he had a gun in his waistband. The issue was not whether there was sufficient evidence to convict him of CCW – it was whether the officers “had a reasonable, articulable suspicion to support their investigatory stop . . . .” The court noted that they “were entitled to consider the totality of the circumstances, viewed and understood in light of their law enforcement experiences, in deciding whether to approach defendant to investigate the situation. Police officers are permitted to approach a person in a public place and ask questions without violating the Fourth Amendment.” They approached him while still in their vehicle and asked if he had a CPL. After he denied that he did (he was not obligated to respond at all), they exited their vehicle and detained him. The court found that the fact “the handgun became partially visible by the happenstance of defendant’s physical positioning or the incidental movement of his clothing does not mean that the gun was being ‘openly’ carried. In other words, the fact that the handgun was seen does not necessarily mean that the handgun was not ‘concealed.’”