*1 D. 1971] v. Charles Walker WALKER D. v. CHARLES PEOPLE Court Evidence—Quashing and Seizures —Probable 1. Searches Cause — Preliminary Examination —Trial. Information — shown at the must be search and seizure for a cause Probable quash and, defendant’s motion preliminary examination for a probable cause search lack of for information testimony later taken trial, amplifying seizure, made before cannot be considered. probable cause show which would Preliminary Cause. Examination —Probable Law — 2. Criminal required show examination, people are At a there committed a crime has been having guilty of committed accused is to believe that the showing, the aсcused crime; absence of such magistrate examining properly over cannot be bound 766.13). (MCLA § Cause —Plain View Doc- 3. Searches Seizures —Probable trine —Automobiles. showing preliminary examination of was no Since there stop automobile, plain doetrine cause to an view in Headnotes References Points 2d, seq.; [1,3-5] Jur, 21 Am Jur Criminal Law 443 et 47 Am § seq. 21 et Searches and Seizures § 2d, seq. Law, 21 Am 443 et Jur Criminal 2] § Jur, Am47 Searches and Seizures 47. '6] § 7,12] Jur, Am47 Searches and Seizures 19. § Right arrest, of search and seizure incident to lawful without a 32 ALR warrant. 680. validity Modern status of rule as to of nonconsensual search and seizure made without warrant after lawful arrest as affeeted lapse between, places of, time difference arrest search. ALR3d 727. 2d, 21 Am Jur Criminal 443. Law 8] 9] § Jur, Am Searches and Seizures 24. §§ Jur, 47 Am 47 Am Searches and Seizures 16. §§ Jur, Searches and Seizures "11] seizure, applicable, if of search and even could not come into invoked, play as, before the doctrine can be it must be shown place right officer was where he had a to be. *2 4. and Searches Seizures —Probable Cause —Informers—Criminal Preliminary Law — Examination. may proceed upon Police officers the basis of information received from an and identity informer need not disclose the but, probable informer in order to establish for a search ca.use showing and seizure there must be a that the information something was suspicion, more than a tip, mere a or an anon- ymous phone call, upon and that it came a from source right rely and, which the officers had a to unless such a showing required, preliminary is examination becomes meaningless, and a defendant is forced to stand trial in proper legally violation of a determination from admissible preliminary stage evidence at the examination a crime probable has been committed and that there is cause to believe guilty
he is of it. — — Preliminary — 5. Poisons Narcotics and Searches Seizures — — Examination Probable Cause Indictment and Informa- —tion Motion to Quash. Defendant’s possession conviction for unlawful or control of narcotics should be set aside where there was showing, no examination, probable of cause for a search and and, trial, seizure before defendant quash moved to information probable for lack of in cause his arrest person search of (MCLA his 335.153).
Dissenting Opinion and T. E. Brennan, JJ. Black Appeal 6. Criminal Law —Probable Cause — .and Error —Defend- op ant’s Burden Persuasion. persuasion bears the burden that reversible error Defendant was committed where he Supreme aslcs the Court presented review а probable cause in a criminal case. 7. Searches Seizures —Arrest Without Warrant —Probable
Cause —Evidence—Trial. properly Search and seizure was and the valid evidence was testimony brought people admitted where in a forth hearing the trial arrest without a before defendant’s probable lawful, warrant was based on cause was as search and seizure was made incident to that arrest. lawful D. Walker Charles
Dissenting Williams, Preliminary Examination. Law — Criminal investigation an is preliminary examination purpose whether committed and has been crime whether a to decide guilty; is the accused believe that is there trial. it not а Preliminary — — — Informants Narcotics Law 9. Criminal — Law. Examination Constitutional necessary not it At a reliability an prosecutor show informant commis- narcotics which established the to introduce the order cause to believe sion a crime and it, introduced the narcotics where the committed pursuant provision that to the constitutional reasonable any requirements not seizure do bar evidence from proceeding peace criminal narcotics seized officer curtilage any dwelling (Const 1963, outside the art house 11). 1, § *3 Preliminary — — 10. Searches and Criminal Seizures Law — Examination Constitutional Law. preliminary At 1968, a in examination a should hаve rely proviso been able to on the constitution of that requirements reasonable bar seizure do not . any proceeding any in evidence criminal seized narcotics from peace a curtilage any dwelling house, outside the officer light in the state the law it existed as then. — — — 11. Witnesses Res Gestae Criminal Law Informants Preliminary — Examination. Witness prosecution an but need not release name informant reliability only prove informant, had who need his and the given “tip” police were a others defendant transporting narcotics, had gestae a witness who was'not res produced preliminary to be at a examination. Appeal Error —Constitutional and Seizures — 12. Searches Law —Narcotics—Arrest. case, prior to a tried a no reversible error There was state Michigan Supreme invalidated the decision which Court provision and seizure reasonable search constitutional any requirements criminal bar evidence should not from proceedings peace seized outside narcotics officer prosecution proce- curtilage any dwelling house, where Mich Opinion op the Court durably provision relied on that examination to introduce narcotics which established the commission of a crime and cause to bеlieve that com- testimony mitted it and waited until introduce evidence which showed that the arrest and search were valid by subsequent (Const 1963, 1, §11). standards art Appeal from Court Hol- Appeals, Division brook, J., P. and Bronson and E. W. Brown, af- JJ., firming Kent, Roman Snow, J. Submitted May (No. 26 April Term Docket 52, No. 988.) August Decided 27, 1971.
25 Mich 418 reversed. App Charles "Walker Douglas was convicted of unlaw- ful possession control of narcotics. Defendant appealed of Appeals. Court Affirmed. De- fendant appeals. Reversed.
Frank J. Kelley, General, Attorney Robert A. Derengoski, General, Solicitor Miller, James K. A. Prosecuting Attorney, Donald III, Johnston Chief Appellate Attorney, for people.
Bergstrom, Slykhouse & Shaw Robert G. (by Quinn, Jr., and Carl J. Verspoor), defendant on appeal. J. The basic case is
Adams, whether aat people are required to by legally admissible evidence— show — crime has been committed and that there *4 probable cause to believe accused guilty. As will be seen, the error in this case was raised at (1) the preliminary examination, and (2) pretrial two motions to No quash. made to attempt was correct the error until the defendant’s begun had he had been in placed jeopardy. D. Walker v. Charles op the Court were Parrish and White, Charles
Evelle possession 1:30 at of heroin for unlawful arrested Pontiac was p.m. White’s on June entering leaving expressway stopped 1-96 after Eapids. Bender Freeman and officers Police Grand cutting it with in front car defendant’s blocked They jumped their car out of an unmarked Corvair. pointed guns Parrish White, ordered with sight. keep and Par- White hands in their Walker to in back. front seat—Walker rish were packets rear They heroin from the seized four been. had feet floor of the car where Walker’s pockets in seizure resulted of Walker’s Search containing envelope kit” for heroin and an “works four tabs of methadone. Sergeant Freeman
On direct relied examination, the nо and made Constitution of 1, 11, Article attempt search and cause for the to show by Calvin of Freeman seizure. Cross-examination part attorney pertinent as White, Danhof, follows: prior any your you received
“Q. word, had Now, out concerning going this Ionia crossroads, to the Pontiac? you specific referring time?
“A. Are day day referring I am time that “Q. before or the week before. Pontiac. information on this
“A. Yes. hadWe you receive information? “Q. From did whom phone. “A. Over the you phone, gave informa-
“Q. Who, over the tion? I
“A. don’t know the name. your “Q. file? Would that be “A. not. No, it would *5 Opinion op the Court Why “Q. “A. We not? put that information in don’t the file un- less have we to. person? “Q. You recall name of this don’t the say I that. “A. didn’t person? you “Q. Do know the name this possible, yes. It’s
“A. “Q. the name ? What is Attorney]: Prosecuting [assistant “Mr. Probert Objection, your being Honor. This witness asked question again. this no I It has effect to offense charged again and; two, number cite Article § 11 of the Constitution which states that guns subject and narcotics are not laws relevancy search and has no seizure, and it mate- nor rial this time. at support [sic]: “Mr. In of the line of Danhoff questioning, your Honor, I would submit the na- police
ture and the information received force identity gave person persons of thfe who this information is crucial on the issue of reаson- resulting ableness of the arrest sei- zure in this case.
you piece of information. geant for this and the Police on this to answer it that “A. Well, “The Court: [*] myself, talk to the [*] this particular particular [*] question. on Mr. White Department party * * * Getting at hand arrest car and the driver was not one who I We mean, as dating had had received provided to—let me search? way, received did back some time. back to the matter you the information ask information, information, receive—did information Ser- “The Well, Court: at I this time will overrule the objection objection, and—excuse me. You made requir- objection Mr. Probert. I will sustain the ing this officerto name source information this this time. Go ahead, Mr. Danhof. exception, your [sic]: “Mr. Honor, With Danhoff identity person,
to the of this I would like to—with D. Charles Walker op the Court pursue question- permission this court, line ing a little learn the bit further so we can nature and police extent of information that the had received prior to arrest. *6 object. going “Mr. Pm Honor, Probert: Your to attempt indirectly, I think Mr. Danhof will perhaps to eliciting questions by obtaining certain questions, although certain from information these directly not as to who the source of information was, by process perhaps of elimination obtain same the information. permit ques-
“The Court: I’ll Well, some limited tioning along ruling these lines and still maintain the that the source of the information as to name and thing necessarily address and that sort of is not divulged or less here, but more to determine the prompted extent of the information which and search. So the arrest go ahead, Mr. Danhof.” spite judge’s ruling, In Mr. Danhof did pursue questioning. not this line of There nowas testimony, Sergeant by by other either Freeman or other at witness examination, to probable establish cause. quash
Before trial, defendant filed a motion probable information for lack of cause in the arrest and search of Walker. The motion was denied Judge largely ground Searl on the that § Constitution, 11, Article 1, allоwed searches with- probable out cause for “outside narcotics the curti- lage any dwelling house in this State.” pretrial Judge
At a conference before Boman J. again attorney quash Snow, defendant’s moved to grounds the proper “on information the arrest im- was good and without and reasonable cause.” No testimony pre- was introduced other than that at the liminary validity Judge examination. Snow relied on the § 1, Article the 1963 Constitution probable also found cause for search under the Mich op the Court testimony
“plain Ser- doctrine” based view (later packets geant he four saw the Freeman heroin) car “as flоor of the on the to contain found just getting [Walker] the car.” out of was he jury after was At trial on March prosecutor con- dire, sworn and the voir after Sergeant Freeman outside an examination ducted attorney presence jury. Defendant’s ob- the jected ground must be on the and cannot be shown at testimony Sergeant at Freeman’s shown trial. clearly established cause. possession or of unlawful was convicted Walker (MCLA [Stat § 335.153 Ann control of narcotics 18.1123]) sentenced five to Rev years. the Court His conviction was affirmed ten of App granted Appeals. 418.) leave. We *7 761.) Mich Zeigler People Relying Mich 355, v. argues prоbable cause must be shown Zeigler, In at examination. the (pp 360): Court stated probable in the case at bar? about “What showing only on the court before circuit testimony pre- suppress motion to consisted of the Amplifying preliminary examination. sented at the testimony We considered. at trial be later taken cannot examination. are to at limited that taken supra. [(1928) 115] Miller, testimony concerning respect com- all With such plaints tips by the offi- received about defendant as arrest, said, Miller, it cers before the must be give infor- officer not source of his that ‘the did identify fact, In when mation nor his informant.’ questioned pre- offiсer,at the defendant’s counsel liminary infor- of his examination, as to the source replied mation, confidential, he that it prosecuting examining magistrate sustained the at- People v. Charles D. Walker Opinion op the Court torney’s objections ques- defense counsel’s further subject. tioning As Miller, on the said in then, the anonymous information did not test. meet the There infirmity was no other information, free from the being anonymous, disclosed to the court the officer on could which claim cause for the search planted. Probable not cause was estab- lished.” People Kaigler (1962),
In
In
case,
the
and the
relied
§
on
11,
Article 1,
1963,
which was
Constitution
565
op
the Court
Pennington
declared unconstitutional
in
(1970),
The
of the
art
in
Mapp
question following
v. Ohio
In the what magistrate, clearly ing allow the it was error *9 575 v. Charles D. Walker Opinion of the Court probable narcotics into evidence to determine cause. probable Since cause for the arrest and search was properly preliminary not established at the exami- begs say probable nation, it cause existed a to believe that crime had been com- judicial mitted. There can be no determination of probable proper stage cause unless isit made at the proceedings. of the showing preliminary
Since there was no at the hearing probable stop cause to the Pontiac car, plain applicable, view doctrine, even if could not play. come into Before the doctrine can be invoked, place it must be shown the officerwas in a where he right (1970), had a to be. See v. Tisi 384 Mich
From both the
and Federal cases, it is
police
may proceed upon
clear that while
officers
basis of information received from an informer and
identity
need not disclose the
informer,
probable
order to establish
cause there must be a
showing that
something
the information was
more
suspicion,
tip,
anonymous
than
telephone
a mere
upon
call, and that it came from a source
which right
rely.1
showing
officers had a
This
is
which
preliminary
should have been made at the
examination in this case,
not.
but was
Unless we
require
showing,
such a
examination
meaningless,
becomes
and a defendant
forced
is
proper
stand trial in violation of a
determination
legally
admissible evidence at the
from
stage
crime has been committed
US 307
S Ct
probable
262 F2d
12 L
(CA 8, 1961),
1 For
US 300
Ed
(79
Federal
684; Aquilar
2d
cause,
21 L
S
723);
Ct
291 F2d
see: Beck v.
Ed 2d
S Ct
eases
Spinelli
3 L
involving
637); Draper
633;
Ed 2d
Texas
v. United
18 L
Price
Ohio,
327);
(1964),
Ed 2d
the use of informers
v. United
supra;
States
v. United
62).
McCray
v. United States
Cochran (1969),
US
States
[108]
States
Dissenting Opinion by Black, guilty is to believe he cause there it. showing no There was *10 The this case. Court examination in Appeals and trial court are reversed and the conviction is set aside. defendаnt’s Kavanagh T. G. T. M. C. J., Kavanagh, JJ., concurred J. Adams, with Swainson, (dissenting). its conclusion To reach J. Black, conviction that still another reversal of still another majority aport much ordered, must our strains too presents proceedings in the record of circuit and at an view”, what to is “favorable me overstatement of prop- much is favorable to the erly that as is, plaintiff negligence in a action accorded sufficiency by evidence is tested a when of his Things way peremptory are the other motion. re- asked around when convict this Court presented question In such view a cause. persuasion instance burden of he beаrs the error committed. reversible thorough stand more review of I the somewhat proceedings which Division has re- circuit (People [1970], 25 Mich D. Walker corded Charles 418-428) App point particularly record again judge on March made before trial actually com- March on 1969—before (ante 572) majority p at menced. Our concedes stage testimony “clearly the March at at least probable cause.” established App I concluded, Division and concur 431): brought people forth “We case that the rule testimony rest of hearing ar- ain before the trial that the defendant without a warrant was based Charles D. Walker Dissеnting Opinion by Williams, J. lawful cause and was and that the search having and seizure been made incident to lawful properly arrest were valid and evidence admitted.” 21):
Supplement (August foregoing viewpoint The declaration of was de- July livered to the other Justices Since separate then Justice Williams has submitted to us opinion standing judgment for affirmance of the Appeals, original apparent the Court of and our majority My minority. has become a vote to affirm as stands, before.
T. E. Brennan, J., with concurred J. Black, (dissenting). At issue in this case Williams, procedure. is a matter of is whether *11 it was reversible error that the trial court refused quash suppress a motion to on the a and motion to evidence grounds of failure to show at the probable cause for either and search Actually, seizure or trial, arrest. as shown at the probable there was cause for the arrest both the search and seizure.
I upon Acting tip an informant’s three men transporting were from narcotics to Detroit Grand Rapids in a car, certain make model the Grand Rapids police point established a surveillance a stop along Sighting rest Interstate 96. the car de- police scribed the the a informant, followed it to point where it exited and then forced to the it curb by swerving ordering in front of the car. After the occupants gunpoint, police of out the car under finding packets searched the car four of heroin and Dissenting Opinion by Williams, person produced of four meth- defendant’s pills administering injections. and a adone kit for the defendant examination, At the quash probable the information lack of moved suppress make also cause to the arrest and moved to prosecution sought the evidence the search. The basis to introduce the into evidence on the narcotics proviso Michigan § 11 of Article § rea- ll’s constitution1 which states sonable search dence in Article rеquirements do bar from evi- not any proceeding any narcotics criminal curtilage any by police seized officeroutside the dwelling judge ruled favor of the house. prosecution evidence. and allowed the narcotics into been This evidence established that a crime had believing cause for committed and it. defendant committed hear- his motions A
Defendant renewed at trial. presence jury ing at trial was held outside the prior voir the submission of after dire but suppress proofs, on defendant’s renewed motions to quash infor- and to the search .evidence for lack of cause to make the arrest. mation brоught hearing forth testi- At this clearly reli- evidence which established monial tip specificity ability with informant’s particularity. in- Freeman testified that the Officer style body only make, formant not described the “drug transport of the vehicle to be used color damage front to the also some heroin,” but described be secure from unreasonable to bar from evidence in affirmation. describing them, firearm, bomb, state.” peace “The Article any person, officer outside place or to The explosive 11 of houses, nor provisions without seize papers any curtilage any person of this criminal searches other possessiоns section shall not proceeding any dangerous weapon, cause, or any dwelling constitution things seizures. supported shall *12 every reads: No warrant narcotic house issue without be construed person shall by seized oath drug, or People v. Charles D. Walker Dissenting Opinion by Williams, gave ear and end of the license number, that the eventually informant identified the three men ar- purpose trip gave stated the rested, approximate their departure and arrival times, that he years worked with the informant for at least five and had utilized his information to effect several arrests and for convictions narcotic offenses and personally armed robberies and that had he arrested previous years trafficking defendant some six in heroin and familiar with his association with judge the other two men. The trial denied defend- suppress ant’s motions to the evidence of the search quash and to the information which defendant re- proofs. a second newed time at the close of the De- possession fendant was convicted unlawful narcotics. From a denial of these motions and the subsequent appealed. conviction defendant Appeals Court affirmed the conviction rul- ing arresting that the officershad cause to arrest the defendant without a wаrrant and that the search was incident ato lawful arrest. The pointed provided Court out that the information arresting gave officers a reliable informant them reason to believe that the defendant had committed committing felony and was offense.
Relying rule stated v. Miller (1928), 118 and reaffirmed in Zeigler (1960), People Kaigler 358Mich 355and (1962), 368 Mich 281, the defendant contended on appeal reliability that the of the informant must be proven with evidence introduced at the improper amplify- examination and that isit use ing testimony later taken to show that the arresting informant was reliable so that the offi- grounds cers had reasonable to make the arrest and *13 565 Mich 580 Williams, J. Dissenting points arrest. Defendant incident to the the only preliminary examination the the that at out reliability of informant was the the about evidence arresting had the officers fact a to the that reference supra, anonymous tip. Miller, held that an received anonymous meet the test of not information does arresting grounds for giving officer reasonable an making search. a warrantless appeal are ones. No narrow one police
The issues
tip
questions
informant’s
the
due to the
grounds to arrest defendant
officers had reasonable
grounds
a
For
no one
warrant.2
the same
without
validity оf the search.
doubts the constitutional
procedure
prosecutor
question is
the
is in
What
preliminary examination.
how
First,
used at the
Miller-Zeigler-Kaigler
requiring
does the
rule
preliminary
prosecutor
evidence
to introduce
at
showing
reliability
examination
apply
informant
prosecutor
Second,
in this case?
could the
proviso
rely
introduce
on Article
11’s
into
1,
an automobile
evidence the narcotics seized from
People
Pennington (1970), 383 Mich
1968 when
v.
proviso in 1970?
must
Third,
invalidated that
validity arrest at
show the
testimony
exclusive of
subsequent
produced
trial?
2
believes,
rule
if an
It
is a
established
officer
well
felony
good
believe,
рerson
has
a
has committed a
reason to
committing
felony
may
a
him
a war
or is
that he
without
arrest
People
People
202;
(1928),
rant.
Licavoli
245 Mich
v. Orlando
v.
People
(1943),
686;
(1944),
v. Bommarito
309 Mich
People
Ormsby (1945),
II
purpose
examination is set
forth
v. Podolski
it is an decide whether a crime has probable been committed and whether there is cause guilty. McCurdy to believe the accused is v. New York Ins. Co. 115 Mich [1897], 20, 22.” Life
In the instant case, narcotics introduced into proviso § evidence under the of 11 1, Article to- gether testimony describing with the the search in- dicated the existence of a crime and defendant’s Zeigler Miller, connection with it. In and Kaigler proviso § of 11 1, Article was not in question issue. Those cases dealt with the of whether the search was reasonable so evi- by dence obtained the search could be introduced into validity evidence. In none was the necessity showing probablе arrest or the preliminary therefor at the examination in issue. The reasonableness of the search had to be deter- presented mined from the facts amplifying could not include testi- mony given apply later trial. These cases do not proviso to where instant case of Article 1, § 11, if then valid, eliminated the need to show the reasonableness of Thus, the search. it was not nec- essary reliability for the to show the informant at the examination to introduce the narcotics which com- established the mission of a crime and cause to believe defendant committed it.
III validity proviso of the 11 of Article was question following the decision the United Mich 565 Dissenting by Williams, Mapp Supreme v. Ohio States Court 6 L 2d 84 ALR2d US S Ct Ed 933) Amendment to United in which the Fourth applicable made to the states States Constitution incorporating process due clause of the it into the Amendment the United States Con Fourteenth proviso However, Michigan was not declared stitution. Pen until our decided invalid nington (383 Court. 611) At the time of the in 1970. Appeals had di instant case in 1968 the Court proviso rectly passed validity in three on the applicable ruling it valid until cases declared that was People v. Monroe our Court. invalid Vanlandingham (1966) App 165; 3 Mich , (1967) App v. Dillion , Mich opportu App twice had the 7 Mich nity 256. Our Court proviso invalid in both cases to declare the but the cases other issue decided avoided the grounds. *15 292; In re 372 Mich Winkle light Blessing (1966), Thus, in the prose in of the state of the law as it existed rely proviso on the cutor should have been able to require § 11. otherwise of Article To find would gift prophecy. possess the of a that he persuaded might Despite history we to Mapp apply Pennington retroactively in those Amendment where the defendant’s Fourth situations rights that sit- in some manner. But were violated arrest Here, occur case. uation did not in this arrest were valid and the search incident policy post-Pennington behind standards. The Mapp by excluding оbtained was that the evidence violating in an unreasonable search incentive requirements of the Fourth reasonable policy has This Amendment would be eliminated. application no case. The defendant’s to the instant rights way jeopardized by in the search were no v. Charles D. Walker Dissenting Opinion Williams, police acted in lawful manner. Nor can see we any way. other how the defendant was harmed Possibly, claim defendant could that he was denied opportunity being confronted the name with particulars of the informant and the of the informa- preliminary examination. But tion at the there is reason information no to believe that such in advance helped of trial would have more than at trial which More- it did resulted his conviction. prosecution release over, need not the name of only prove reliability the informant but need gestae Nor informant.3 was the informant a res produced who had to be witness examination.
IV question necessary remains whether it was prelim- to show for the arrest at the inary As above, examination. indicated neither Zeigler Kaigler point, Miller, nor are because there the related to the unlawful search not Certainly, actually to an arrest. where the arrest was valid and where the evidence showed a crime and probable cause, there no reversible error in the procedure. See also Frisbie Collins 541), upheld US S L Ct 96 Ed which ruling court’s “that the state court had power try respondent ‘regardless presence of how procured.’” (P 520.)
V
Appeals.
In conclusion we affirm the Court of
"We
*16
pre-Pen-
find that there is no reversible
error in
nington
prosecution procedurally
case where the
re-
L
12 L Ed 2d
Ct
3 Draper
Ed 2d
18 L
327); Aquilar
723)
United States
Ed 2d
62).
McCray
v. Texas
(1959),
Illinois
lied on the inary narcotics which to introduce the prohable of a crime and the commission established it and waited committed cause to believe until trial which testimonial evidence introduce search were valid that the arrest showed post-Pennington standards.