*1 538 538 v PETERSON PEOPLE Court Warrants —Evi- 1. Searches and Seizures —Warrants—Search Dealings. Informants—Reliability—Prior dence — police history prior dealings A an informant and the between reliability necessary the informant’s before a to establish warrant; considering application magistrate for a search who is magistrate may portions of an at those informant’s look police, independently by verified information which are probable supporting truthfulness the infor- other factors mation, reliability. determining the informant’s 2. Warrants —Affi- Searches Seizures —Warrаnts—Search Informants—Magistrates. davits —Police Officers — police seeking the basis of
A officer a search warrant on informa- must, supporting supplied in an affidavit tion informant warrant, furnish with the facts from which the informant was credible or his the officer concluded information reliable.
3. Law —Police Criminal Officers —Informants—Probable
Cause. police rely upon properly A officer information received through cause for on an informant to establish action reasonably the informant’s statement is corrobo- his where knowledge. other matters within officer’s rated [2] [3] [7] [8-10] [6] [5] [4] [1] 75 Am Jur 68 Am Jur 30 Am Jur 75 Am Jur 30 Am Jur Am Jur Am Jur Am Jur 68 Am Jur 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, References Trial 2d, Trial § Searches and Searches Evidence Searches Evidence § New Trial §§ Searches §§ 336, 489. and Seizures 42.§ and Seizures 30.§ §§ for Points 1086. etseq. 1125,1126. and Seizures 64 et 143, 147. Seizures § 65. Headnotes § seq. v Peterson Drugs Marijuana—Statutes—Presumptions— 4. and Narcotics —
Possession —Intent—Instructions. provides The statute which of more than two *2 marijuana gives presumption possession ounces of rise of to a unconstitutional; with to intent deliver is it is reversible error (MCLA presumption 335.341[2]). to instruct on such a Evidence—Prosecution—Theory 5. Criminal of Law — Innocеnce —Circumstantial Evidence. prosecution proving
The theory has of the burden that there is no will, possible reason, of innocence which without violation of facts, accord with the is where its case based on circumstantial evidence. Evidence—Marijuana—Possession—Infer-
6. Criminal Law — Jury. ences —Intent—Motions for Directed Verdict — A acquittal criminal defendant’s motion for a directed of verdict charge on a of of with intent to deliver improperly quantity nmrijuana weis denied where the of seeds possessed by slight jurors the dеfendant was so that reasonable
could not an infer intent and deliver there was no other question evidence on the of the defendant’s intent. Holbrook, D. E. J.
Concurrence 7. Criminal Law —Convictions—New Trial —Evidence—Circum- Jury. Charges—Submission stantial Evidence — appellate
An court which reverses a criminal conviction based upon circumstantial evidence and remands case for new a produced trial let should the evidence at new trial deter- original charge properly mine whether the submitted to jury. part by Bronson, J. Cоncurrence dissent Warrants—Affidavits—Validity— 8. Searches and Seizures — Probable Cause. validity entirely dependent upon a of search warrant is validity supports issuance; of the affidavit which its an examin- ing magistrate satisfy must himself that the affidavit contains probable information sufficient to establish cause to search the place described, mentioned and seize the items and the affidavit judged solely on the basis of the information it contains. App 538 the Court Warrants—Affidavits—Hearsay—In-
9. Searches and Seizures — Magistrates. formants — supporting of a warrant search be An affidavit issuance others, hearsay hearsay reports such can but be based on the magistrate only accepted by examining if there is reason to an apprised it; honesty of both the must be believe report. for his of an informant the basis Warrants—Affidavits—Hearsay—In- 10. Searches and Seizures — formants —Probable Cause. supporting of a warrant and search based
An affidavit issuance supplied by not informants was sufficient on information finding provide cause where it did the basis for the aidant’s conclusion indiсate the basis for credible, that their information was iniormants were or reliable allegation independent in the and the one corroborative affida- support informers inference that were vit could not generally trustworthy. Davidson, Delta, Bernard H. Appeal from 3, 1975, Rapids. at Grand March Submitted (Docket *3 19187.) 25, August 1975. Decided No. possession of N. was convicted Robert Peterson Defendant of with intent deliver. marijuana remanded. Reversed and appeals. General, Robert A. Kelley, Attorney
Frank J. I. Marcin- General, Derengoski, Tony and Solicitor kewciz, (Prosecuting Attor- Prosecuting Attorney Wilson, Service, Edward R. Direc- Appellate neys Marderosian, Howard C tor, Assistant Special and counsel), General, for people. of the Attorney Benson, H Dennis Appellate Assistant State Defender, for defendant. J., P. Holbrook, D. E. and Bronson and
Before: JJ. Kelly, M. J. Defendant-appellant, Robert Ned Kelly,
M. J. 6, Peterson, appeals right from his November v Peterson the Court of marijuana for of conviction with deliver, 335.341(l)(c); intent MCLA MSA 18.1070(41)(l)(c). days A of 30 in jail sentence and years’ 13, probation imposed two on was November judge pending 1973 and trial stayed by the the appeal. outcome of this
Three are for our issues raised consideration: seizure, the and legality of the search the applica- of tion and suffi- presumption” "two-ounce of ciency All will be evidence. discussed.
I The which Peterson house in then resided was searched by Michigan Escanaba and State Police during morning April 25, officers the early 1973. A quantity appeared marijuana of what to be was Peterson, among others, seized and wаs arrested. was pursuant search conducted to war- a following rant issued on the basis of affidavit: April "On I have been informed two apparently anonymous reliable citizens that in above residence of one Kevin Johnson there is secreted quantity marijuana, a of what was described as given sample a of the substance described to me as being a performed of that I substance and a chemical field test the substance and the result of presence said chemical test showed controlled substance. upon observation, description "Based their actual sample of the substance ered me and the residence and deliv- *4 test, am results aforesaid I of opinion probable cause exists to believe a violation
of the Controlled Substance Act of 1972 has
is now
and
occurring and that
the aforesaid residence is
as a
used
for
'stash’
the aforesaid controlled substance.
bagged
"The informants described the
in
material as
plastic baggies
green
and
leafy
was of a
nature
App 538
63 Mich
op
the Court
actually
had
seen said
bags and
described as nickle
from above date.”
hours
forty-eight
materials within
against Pe-
introduced
All of
evidence
the real
result of
as a
obtained
terson at
trial was
suppress
He moved
this
of his residence.
search
trial, arguing that
the search
prior
evidence
defective. The valid-
constitutionally
warrant was
depends on the suffi-
of the search warrant
ity
its issuance.
support
of
of the affidavit
ciency
dealings between
prior
suggests
Defendant
If
necessary.
this
informant
are
the affiant and
true,
whose anonymity
informant
every
were
then
his first case thrown out.
protected
have
would
fact,
In
the law is otherwise:
dealings
an infor-
prior
between
history
"While
important
element
police can be
mant and the
establishing
informant,
the ab-
reliability of the
prove the
history does not of itself
of such a
sence
informant
unreliable.
is entitled to look
circumstances,
including
por-
those
underlying
to the
independently
by po-
verified
tions of the information
lice,
probable truth-
supporting the
to other factors
Wong,
States v
information.” United
fulness
F2d
1972).
(CA
9,
Texas, Aguilar
test is stated
The crucial
L
108, 114; 84
12 Ed 2d
US
S Ct
disjunctive,
in the
requires,
That case
from
the offi-
furnished facts
which
magistrate be
* * *
'cred-
informant
cer "concluded
(Citation omit-
or his information
'reliable’ ”.
ible’
ted.)
257; 80 S Ct
In Jones v United
362 US
(1960),
Court
Supreme
US
725;
officer’s action *5 People v Peterson 543 Opinion of the Court information rely through that he upon received informant, observations, upon rather than his direct so long rated 362 reasonably as is the informant’s statement corrobo- ” knowledge. other the officer’s matters within supplied.) (Emphasis US at 269. Defendant makes much of the fact that affidavit "apparently anonymous refers to reliable out, citizens”. Judge points As Bronson this phrase Aguilar taken alone does not meet requirement magistrate facts for the adequate to pass However, on credibility. the informant’s is question, that the sole for constitutional muster passed is if the affidavit recites sufficient facts for a to magistrate conclude that the infor- Texas, mation Aguilar supra. And, reliable. pursuant States, to supra, Jonеs v United it is appropriate to at the look contents the affidavit beyond the "apparently anonymous words reliable citizens” to see is whether there evidence "reason- ably corroborat[ing]” In the informant. so doing, kept should be mind that rule of "[t]he practical, cause is conception nontechnical af- fording compromise the best that has been found * * * for accommodating often opposing interests”. Ohio, Beck v 379 91; 223; US 85 S Ct L Ed (1964), 2d 142 quoting Brinegar v United 160; US Ct L S 93 Ed 1879 It should be apparent also reliability Judge wanting Bronson finds is a requirement designed protect against or knowingly false inadvertently given erroneous information informant to the officer.
In incriminating this case the information came from two citizens. Such perhaps information is more likely be reliable than information which depends solely on veracity of one person. description of the appears substance coincide Opinion of the Court knowledge experienced officer’s
with marijuana. appearance It fair to infer they marijuana when the informants knew Therefore, saw it. could the affiant and dis- *6 possibility the informants had count the that mis- takenly marijuana. as licit substance identified a The verified that officer’s field test substance proven marijuana was truthful informants were —the particular. turning, Also, the act of in that police over ered a could itself be consid- reliability If the search of credential. de- premises proved fruitless, fendant’s had undesired might focused on the attention themselves. It is one an officer that there is an have informants
thing for an informant to tell illegal substance at such plаce and such a it is another for the infor- produce sample. sample mant to story makes the convincing. more dangers Aguilar case, In the context of this protect against seeks to are are satisfied. Otherwise we straining against vague possibil- protect ity that two citizens delivered an illicit substance police from an to a officer to unknown source falsely incriminate the defendant. That would be a Considering openly. crime committed serious magistrate, I facts related to the find am inclined to probability probability less than the that this given in material the information part. was accurate sure, the had To be claims of the informants respects. However, substantiated in all been those claims had substantiated in a number been important respects. The affidavit was sufficient support to committed the search no error was warrant and
by introducing marijuana into evi- dence. Still the conviction must be reversed.
II prosecutor trial, the trial At relied on and People v Peterson Opinion op the Court court instructed on the two-ouncе presumption 335.341(2); 18.1070(41)(2). embodied in MCLA MSA That presumption unconstitutional.
Serra, NW2d Reliance on the unconstitutional statute was re- versible error.
Equally fundamental is the fact the pre- sumption was inapplicable present to the case. A search of the residence uncovered about 7-1/2 ounces of marijuana. amount, Of 5.6 ounces were found under a pile dirty clothes room of Kevin Johnson. No testimony connected defendant particular with this marijuana. The rest of the marijuana amounted to slightly less than Thus, two ounces. there was no evidence defendant possessed more than two ounces. In- struction on the statutory presumption suffered a double It infirmity. inapplicable to the facts and unconstitutional.
Ill Defendant also complains that the trial court erred in denying request his for a directed verdict of acquittal. prosecution’s The proofs revealed that the search warrant was executed one morning at about 1:30 a.m. Defendant was bathing and Kevin Johnson sleeping. was The residence consisted of room, three bedrooms and a music each of which contained at least one mattress. Defendant was flat, the lessee of the but the landlord understood that others would also live there. undisputed The testimony was that a number of rent-paying resi- guests dents and had lived in the home. marijuana No was found on person defendant’s or in the clothes he donned when arrested. None was found in the bathroom or in the bedroom from App 538 Mich op the Court clothes, got presumably which defendant his his short, In found no police marijuana bedroom. had in the areas which defendant over exclusive control. above, package
As of largest noted mari- room. juana was found in Kevin Johnson’s Other found in packets marijuana small were which, suggests, third bedroom all evidence was There party. used an unnamed third is nothing at all to this marijuana. connect defendant possessor Proof of as the identity defendant’s in marijuana found the bedrooms others entirely lacking. packets Those form no basis for defendant’s conviction. in packets
Other were found "common areas” living such as the room and room. music To these areas, all had access. As noted by Judge residents (now Justice) opinion in his for this Court in Levin People Davenport, v 256; App 39 Mich (1972): NW2d cannot be con- "[Defendant] someone must have victed on the theorem that Here, been in of the heroin”. as Davenport, nothing there is show defend- ant presence marijuana. knew of the Com- Valot, pare 189 NW2d in Davenport, prosecutor As in the defendant, prove instant case failed to it was residents, of the other placed one in the common marijuana areas. contraband which only was connected A
defendant was found a box the hall closet. containing manila envelope seeds was *8 in in found the box. Also the box the title to People v motorcycle. defendant’s The Court Davenport, supra, noted: regarding possession
"The evidence in this case People v Peterson op the Court entirely heroin is circumstantial. established rule people’s is that where the case is based on circumstan- prosecution proving tial evidence the has the burden of possible will, theory 'that there no which is innocent reason, without of with the violation accord facts’.” 39 omitted.) (Citations App at 256. close, extremely While the case is reasonable jurors might presence find from the of the motor- cycle presence title knew of that defendant the of the marijuana. compelling; The inference is not we Valot, permissible. People v only find it is supra. prima The prosecution established a facie possession; possession case of whether is beyond a reasonable dоubt should be left for the jury. judge The trial left the properly to jury simple pos- determination the lesser offense of session.
As to charged offense of with deliver, intent we find insufficient It evidence. again should be emphasized only mari- juana that jury find properly could defendant possessed consisted of the seeds found the ma- nila envelope. This recently Court said Serra, supra: involving large "Prosecutions amounts of require presumption
will not jury to convince a possessor something personal other than intended use; the inferеnce follow of its force. own When issue, prosecutor smaller amounts are at intro- can suggests duce evidence of the kind he the defendant use; expert be acquaint- should forced to witnesses and left, ances jury defendant. The will then be by presumptions kind, any weigh unfettered evidence it.” 55 Mich on both sides question and resolve the before at 525. Where the de- quantity large, the intent *9 63 Mich Bronson, J. Partial Concurrence Here, liver inference. permissible be a how- ever, the quantity possessed of seeds was so slight that we are constrained to find that reasonable jurors could not infer the intent to deliver from that quantity. There was no other evidence on the question of intent. It was defendant’s therefore error for judge deny the trial defendant’s mo- tion for a acquittal directed verdict of on the charged offense.
Reversed and remanded for retrial on the charge possession only. D. E. (concurring). P. I agree J. with Holbrook, my Brother, Judge opinion and his as to Kelly, issue, the first believing that the search warrant was proper and the evidence obtained thereunder was I admissible. would likewise reverse for a new
trial, upon original but charge, rather than just possession charge. The produced evidence at the new trial would determine whether or not original charge proper to be submitted to or jury only possession charge. (concurring part, dissenting in J.
Bronson, part). agree I Kelly’s Judge with analysis in parts II III of his opinion, and concur in the result of reversing the case remanding for retrial on the charge However, I only. disagree with his treatment of the search warrant issue in part 1.1 must dissеnt Kelly’s to that of Judge opinion which upholds the trial court’s denial of suppress. motion to The evidence pursu- seized ant to that warrant should not into be allowed upon evidence retrial.
The validity of any search warrant depends on the entirely validity of the affidavit which supports its issuance. A search warrant issued examining when the satisfies himself Peterson Bkonson, Partial Concurrence in support the affidavit offered thereof con- tains sufficient to establish information place cause to mentioned and searсh seize the items described. The affidavit must be judged solely on the of the information basis contains. face, If it is invalid then search any on its warrant *10 supports any is defective and search conducted Spinelli in v United reliance on it is unreasonable. States, 410, 413, 3; 584; 393 fn 89 US S Ct 21 L Ed (1969). 2d 637 Accordingly, proceed we to deter- mine supporting whether the affidavit the search warrant in this case contains sufficient informa- tion to a conclusion that justify cause existed to subject defendant Peterson to a search of his residence.
Aside from the field test сonducted
the
by
affi-
ant, all of
in
the information
the affidavit was
supplied by informants. While it is true that an
affidavit may be based on the hearsay reports of
others,
Brinegar
v United
160,
338 US
172-
173;
1302;
69
(1949),
S Ct
The instant furnishes affidavit circumstances underlying the there was affiant’s belief mari residence, since it juana Peterson’s summarizes recent, personal of the observations infor Harris, United States v mants. 579; US S Ct 29 L This Ed 2d satisfies the However, Aguilar first test. the affida vit nowhere basis indicates on what the affiant concluded that the informants were reliable or their information was credible.1 prosecutor brief stresses his the quality of the information from obtained the informants *11 proof doing, as of their In so reliability. he con- Agui- quite fuses the two distinct elements of the lar test, the same mistake apparently made by the examining magistrate. both affiant and the say To the informants accurately described residence, the listed the substances to be found therein, produced a sample of those sub- proved beg stances which to be is to marijuana an important question. This support information will at most the conclusion that ample there is an basis if the information for allegations the informants’ is accurate. To be sure, if the informants observed inside the described residence and if brought then a they sample of that same mari- prosecutor suggests the demeanor of the informants led they telling the affiant information was not included in the to believe that were the truth. Since this affidavit, it cannot be considered. Spinelli, supra, United States v at fn 3. v Peterson Partial Concurrence Bronson, cause to seаrch juana police, probable would However, be established. the affidavit does not provide us with reason believe that any things they informants claimed to saw have seen or did claimed to things they have done.
The affiant
he
does not maintain that
or anyone
else has
any prior dealings
had
with these infor-
proven
mants
which
have
reliable.
they
Com-
States,
pare Jones v United
257;
US
80 S Ct
725;
This affidavit does not even contain the bare conclusory allegation that the informants are reli- able, the type self-serving claim held insufficient Spinelli, supra. The affiant here was unwilling go so far —he only could refer to the informants as "apparently reliable”.
I must conclude that the information supplied the Aguilar tip satisfy informants’ does not requirement that the informants be shown to be Next, reliable. it must be determined whether allegations "other which corroborate the informa- tion contained in the hearsay report” are sufficient Aguilar to meet Spinelli v United test. supra, at 415.
The only allegation corroborative in the affidаvit concerns the field test by which the affiant con- cluded that sample provided informants was marijuana. While this quite test properly assisted the affiant in determining the infor- mants had a report, basis for their it is insufficient to allow him to conclude that the report is truth- ful. We have no way knowing where the mari- juana sample came from unless we believe story. informants’ That the field test proved posi- provides tive no additional for believing reason the marijuana came from Peterson’s resi- dence, however much makes the belief sample legitimate. And that the in- formants did not lie when they said sample *13 553 People Peterson v Bronson, by Partial Concurrence provide cannot alone corroboration Spinelli v allegations. for all of their See other States, (White, J., supra, United 425-429 at con- curring). involving a case We do not have kind in Draper exhibited self-executing corroboration v United 307; 329; 3 L 358 US S Ct Ed (1959), police 2d where independently verified all but one detail of informant’s ex- traordinarily thorough description. indepen- here, Spi- dent like that present corrоboration nelli, support is inadequate informants’ report: * * *
"This support cannot itself be said to inference generally that the informer was trustworthy * * * Spinelli, supra, .” 417. at
Careful study of the affidavit submitted in sup port of the application for the search warrant has convinced me that a conclusion that the infor mants supplying tip were a reliable source of impermissible.2 information What was said in Spinelli, supra, repetition deserves here: conclude, then,
"We present in the case the tip informant’s when corroborated the extent —even provide indicated —was not sufficient to the basis for a finding tip cause. This say is not to that the was so properly insubstantial it could not have magistrate’s Rather, counted determination. support. needed some further When we look to the however, parts application, other alleged find nothing we permit suspicions engendered which would report ripen judgment informant’s into a probably being Spinelli, a crime was supra, committed.” at 418. Iaconis, People Cf. 443; v the affidavit 29 Mich 185 NW2d (1971), Bercheny, aff’d sub nom 387 Mich 196 NW2d