*1 571 1976] v Summers
PEOPLE v SUMMERS Opinion of the Court Magistrates—Is- 1. Searches and Seizures —Search Warrants — suance of Search Warrant —Statutes. magistrate only
A authorized to issue warrants to search places actually certain and once a warrant has been issued it (MCLA broadly 780.651; interpreted 28.1259[1]). cannot be MSA Particularity— 2. Searches and Seizures —Search Warrants — Serving Scope of Officers — Search Warrant. describe, particularity, A premises search warrant must seized, property executing to be searched and the be narrowly description; magis- officers must follow that where a trate could have issued a warrant search individual premises found on the for which warrant has been issued, so, "particularity” requirement did do prevented serving legally officers warrant from extending scope of the warrant so as to authorize a search person. of a defendant’s 3. Searches and Seizures —Search Warrants —Premises—Execu- Upon tion of Search Warrant —Presence Premises. required, least, very It present upon that a being premises searched the execution of a valid search warrant for search of the before that can properly be searched without the issuance of another search stopped
warrant and where defendant was outside of a subject warrant, by which was the of a search officers [4,12,14] [10,13] Am5 [3] [1] [5-7] [8] [9, [2] Am 68 Am Jur Am 68 Am Jur Am 5 Am Jur Jur 25 Am Jur Jur Jur 2d, Jur 2d, 2d, 2d, References 2d, Arrest 2d, 2d, Searches and Searches and Seizures 61.§ Searches and Searches and Seizures 111. Arrest 2d, Arrest §§ 23. Drugs, 2, §§ for Points in Headnotes §§ 69-94. Seizures Seizures §§ Narcotics and Poisons 32. §§ § 73-82. 107-115. §§ 45, 47. 68 inside, executing taken this factor the warrant and cannot be found. 4. Criminal of Narcotics —Dwell- Law —Narcotics—Possession *2 ing Control. House —Joint dwelling of a Evidence of house is control insufficient to knowingly possessing drug a an sustain conviction for illicit connecting found therein further without some evidence a drug. defendant with that 5. Arrest —Constitutional Quantum Law —Probable of Cause — Beyond Drugs— Proof —Guilt a Reasonable Doubt —Illicit Independent of Search Premises —Additional Factor. quantum proof assessing probable of in cause to arrest guilt doubt, however, beyond different than a reasonable type quality there still must be some of the or evidence neces- sary support probable to a conviction before cause be can established; therefore, drugs during where illicit are found a premises by a owned there must be at independent linking least some evidence an additional factor drugs, although weight given the defendant with the the to be support to the factor need be less to an arrest than is needed support a conviction. 6. Criminal Law —Narcotics—Defendant’s Premises —Additional Independent Factors. Independent which been factors have found to link a defendant to (1) drugs attempted found on the defendant’s include: flight (2) by defendant; and destruction of the evidence close (3) proximity narcotics; to the the existence of reliable informa- trafficking drugs tion type that the defendant is in (4) plain view; linking directly of the defendant to the specific property found, drugs through in which the are such as (5) ownership; knowledge the defendant’s admission of its and precise drugs. the defendant location of the 7. Arrest —Constitutional Law —Narcotics—Heroin—Possession Occupant —Owner and —Premises—Search Ar- Incident rest. probable Police officers lacked cause to arrest defendant for knowingly possessing drugs found in the basement of the defendant’s house where the defendant was known to be occupant house, drugs
owner an were found place out-of-the-way an in that no where there was linking drugs other evidence the defendant time to those at the arrest; therefore, of his where such an arrest made without arrest,
probable a seizure of heroin cause to found on the person justified product defendant’s cannot of a search incident to an arrest. by Bashara, J. Dissent 8. Arrest —Arrest Without Warrant —Peace Officers —Reasona- ble Cause —Felonies—Statutes. peace person may A without a officer arrest a warrant when he felony has reasonable cause to believe has been commit- ted and cause to believe that such (MCLA reasonable has felony 764.1B[d]; 28.874[d]). committed the MSA Arresting 9. Arrest —Probable Cause — Officers —Peculiar Cir- Case-by-Case Analysis. cumstances — involving quantum Each case of information which consti- analyzed light tutes cause to arrest must be peculiar facing arresting circumstances officer. Felonies—Legal 10. Arrest —Police Officers — Scholars —Reason- able and Prudent Men. A officer makes his determination as to whether a *3 scholar, felony legal arrested has committed a not as a aas prudence man of reasonable and caution. 11. Arrest —Probable Cause —Factual Practical Considera- Legal tion —Reasonable and Prudent Men — Technicians— Case Precedent. practical everyday One deals in the factual and considerations of men, prudent legal life on which reasonable and not techni- cians, act, assessing probable cause for arrest. 12. Searches and Seizures —Inferences—Control of Premises— Ownership Control of Heroin —Common Area of House — of Premises. It was reasonable for the to infer that a defendant con- therein, trolled certain as well as heroin found although approximately people there were six other in the warrant, by police, pursuant where a search to a search uncovered heroin in a common area of the house and the already defendant had admitted that he and lived in owned house. 13. Arrest —Probable Cause —Police Officers —Elements of Of- fense —Sufficient Evidence to Convict —Courts. determining probable A officer when need cause to arrest analyze the elements of an offense to determine whether of Court convict; clearly there is sufficient this evidence the func-
tion of the courts. 14. Arrest —Constitutional of Conviction—Quantum Proof Law — —Probable Cause to Arrest —Possession Narcotics —Case Precedent. quantum proof greater needed to convict is than that required arrest; therefore, prior cause to deter- mination that there was insufficient evidence to ffnd a defend- guilty possession ant beyond of narcotics a reasonable doubt drugs where the were discovered in a common area of a house which persons, was under the control of a number of including does not mean that there was no probable cause to arrest.
Appeal from Detroit, Recorder’s Court of Robert Colombo, J. 10, J. 1975, Submitted October (Docket 22802.) Detroit. No. Decided April 1976. appeal Leave to applied for.
George Summers charged was possession heroin. The defendant’s motion to suppress certain evidence because of an illegal search granted. was The information quashed, and the defendant was ordered discharged. The people appeal. Af- firmed.
Frank J. Kelley, General, Attorney Robert A. Derengoski, General, Solicitor Cahalan, William L. Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, Raymond Walsh, P. Assistant Prosecuting Attor- ney, for the people. Bronson,
Before: J.,P. and Bashara and M. F. Cavanagh, JJ.
Bronson, P. J. Defendant was charged pos- heroin, session of contrary to 335.341(4)(a); MCLA 18.1070(41). trial, MSA Prior defendant filed a motion to suppress the heroin which was the Court of the it was grounds that on prosecution
subject trial judge The illegal search. product of an the information, motion, the quashed that granted prosecutor ap- dismissed. defendant ordered here. peals night the on occurred in question
The search officers of Detroit 1974. A team October a search to execute night dispatched that were 9356 Mansfield located for a house warrant authorized The warrant of Detroit. City as and named premises, search converged theAs of the house.1 the owner However, appear in the record. copy does 1 A of the warrant counsel, judge at prosecutor, and the defense between discussion the rant: scope of the search war preliminary indicates the examination warrant, your McCloskey prosecutor]: the search Under "Mr. [the premises. Honor, authority the entire they to search had the in the search warrant? "The Court: That’s copy McCloskey: you the search warrant? Do have a "Mr. Honor, range, your they but their that exceeded "I would assume hearing type subject in this might proper of a different question has been raised. think that But I would—I don’t court. Honor, "Yes, generally known your search it is dwelling. goes Mansfield, 2-story single on And then it which is, dwelling specifically type of it of the —more to describe the rest exactly where it is located. premises. the entire "But it’s that, premises? says entire "The Court: It Honor, No, says premises, your I think that McCloskey: it "Mr. premises, floor limit it to the first it doesn’t assume the entire would place. any specific I think that’s a in the or room or the second floor reasonable warrant, reading that it means the search on the face of premises, limited. since it is not the entire Honor, it I don’t think [the Your Mitchell [defense counsel]: "Mr. should be admitted. of defendant] seized from narcotics * *** they just they serve the search could had a search warrant If says they nothing had to in the search warrant There is warrant. The search on Mansfield. of Mr. Summers out search warrant they premises. went— Now was to search coming they out as were the fact he about "The Court: What going warrant? the search to execute warrant was not in the —the search he still "Mr. Mitchell: Well they They premises, man. not to search this to search no— *5 68 op Opinion the Court location, on the a man later above identified as exiting defendant was the house. Patrol- observed stopped Roger man Lehman and identi- police fied as officer. himself When the that defendant lived in learned they house, unlock ordered him to front responded door. Defendant he did not have keys him, and that he would have to use open the intercom to the front someone inside convince spoke to a door. Defendant named Dwight system, over the communication instruct- ing Dwight to let him into the house. A few appeared Dwight later, minutes Calhoun at the door. Patrolman Lehman identified as a himself just officer, but Calhoun stood there. When open door, Lehman tried to houn slammed the storm locked Cal- door shut.
inside quickly up Three of the officers moved and they knocked so, down the front door. As did running Officer Lehman observed Calhoun toward chasing a downstairs bedroom. Lehman started instructing Anthony officer, Calhoun after another bring Conant, to Conant inside. escorted defendant into the house the other members team "secured” the house.* Patrolman got they had no—even after the man search the man.” in the house had no cause to prosecutor argued The has never here or below the warrant expressly authorized a of defendant. directly Officer Conant was never asked whether defendant volun tarily however, reading testimony, went into the house. A fair example, he indicates that of had little choice. For on cross-examination Conant, following exchange occurred: attorney]: right. you All did ”Q.[defense Well when came to the around you you Summers, front of the house Mr. see—did see is that right? "A. I did. house, right? And Mr. Summers was outside is that "Q. "A. He was. house, him you Now Mr. Summers was outside of ”Q. took right? back in the is that "A. I did. op the Court pursued Calhoun into the
Lehman bed meanwhile "pack” room, onto toss the bed. saw Calhoun "pack” and was found to con was retrieved suspected placed tain Calhoun was under heroin. living into arrest and escorted back room. persons, variously five, six, described as or Other eight number, found in the house and were *6 brought living into the room other offi cers. brought living room,
After Calhoun was into the "secured”, and the house was otherwise Conant proceeded to He search the whole house. found plastic bags suspected two under narcotics returned, bar in the basement. When Conant de- again upon questioning fendant indicated that he was the owner of the house and lived there. De- placed fendant was then under arrest Suspected searched. heroin was found in his pocket. All of the in other the house were any- searched, also there no indication that thing persons. Laboratory was found on their tests "Q. crew, your he wasn’t a Now member of was he? No, "A. he was not. you "Q. going you making And didn’t think all he was aid in raid, you? this did going 'A. I not did know what he was do. No, gained entry 'A. I did not. After we Patrolman Lehman told bring me to him on inside. right. "Q.All You took him on inside? 'A. I did. inside, "Q. you you immediately when Now went what did do after you got inside? living 'A. I was in the Well room with Mr. Summers. ”Q. right. kept right you, All You Brother Summers close to is that right? "A.He was there. "Q. right. you you kept your All What did after do him close that; you go anyplace did view like ever else secured, the house? until 'A. after the Not house was I went to the then basement.” the Court ,pF envelope revealed that defendant’s pocket grams 8.5 of heroin. contained charged only possession
Defendant was the 8.5 grams of heroin found concealed on his person. the search was Consequently, when ruled illegal and suppressed, charges the evidence against defendant were also dismissed. The prose- cutor on appeal contends that defendant prop- was erly searched.
The prosecutor arguments to justify makes three First, the search person. of defendant’s the prose- argues cutor the search warrant authorized a search of the "premises”, and that all hiding places part located inside the house are "premises”. prosecutor that, Secondly, claims even if "premises search”, this strictly person found in the house when the search war- rant is issued can in some cases be searched. A justified search was here because of defendant’s presence on the premises, ownership premises, and the expectation reasonable that an *7 sought item would be found on person. Finally, the prosecutor argues that had cause to arrest defendant when they a con- trolled substance property owned him. The search is then justified as incident to that arrest. We all of reject legal these bases for the search, and affirm the trial court. prosecutor’s legal
The
theory
upon
first
is based
780.651;
28.1259(1),
MCLA
MSA
which authorizes
magistrate
to issue a
to
any
warrant
"house, building or other
location or place where
property
thing
or
to
which is
be searched for
and seized is
argument
goes
situated”. The
Since the clothing
follows:
is a
located,
heroin
"place where”
could be
trial
judge must have intended to allow a search of the
to
pursuant
same
his warrant
for the "premises”.
People
v
Opinion of the Court
prosecutor
point
misses the
of the statute.
28.1259(1)
780.651;
MCLA
MSA
only authorizes magistrate
to issue warrants
to search certain
places.
issued,
Once a warrant has
been
actually
it
cannot be broadly 'interpreted. A search warrant
must describe
premises
to be searched and the
to
property
be seized with particularity,
and the
executing officers must narrowly follow that de-
Marron v United
scription,
192,
275 US
196;
231,
48 S
Ct
72 L Ed
Franks,
(1974).
App 729;
The prosecutor argues in the alternative the courts of other states have allowed the search of individuals premises found on the prevent the complete frustration of the warrant. Other- wise, claimed, it is occupants would simply conceal upon contraband their as the an- presence. nounce their Applying the test found in cases, those the prosecutor states there was "reasonable cause” for to believe defend- ant upon his person property subject to the warrant. Particular accent put on defendant’s presence on the scene and his ownership of the house.
Our courts have never explored the extent
which
found upon
as a
search warrant
is executed can be searched with-
out another warrant. This is not
the occasion to
issue,
decide that
for all of the cited
require
cases
*8
presence
at
least
very
upon
being
That
searched.
factor cannot be found here. The
App
Mich
op
Court
defendant
house.
stopped
was
outside
There
hardly
on
could be
items
which
warrant,
were
to the
subject
search
since the. items
too were
designated premises.
outside the
Taking
defendant
change
back inside did not
the situation.
Even if
police
so,
legally
doing
acted
in
an
here,
issue we
do
decide
failure
to search
defendant’s person certainly would not "frustrate”
the execution of the warrant. There could be little
fear that
items in the house would be taken and
concealed
by
being
who
detained
watched
Officer Conant.
The prosecutor’s
police
final claim is that
probable
posses-
cause to
defendant
arrest
for
sion of the
narcotics found
the basement of the
house.
true,
If that contention is
police
then the
properly searched the
defendant
incident
to that
however,
arrest.
trial
judge,
ruled that
lacked
cause to arrest
defendant. He
Davenport,
found
In Davenport, police officers went to a house where defendant resided with three other for the executing purpose search warrant premises. those As the broke down door to gain entry, they observed the defendant run- ning upstairs with a small box. The reached an upstairs bathroom in time to retrieve three envelopes and a bit of loose marijuana as the attempted to flush them down the toilet. Marijuana was also envelopes. those A conducted, of the whole house was then a bag of paraphernalia grams narcotics and .26 heroin found in were the basement. items Both were clothes, the bottom of a barrel of soiled and the heroin was contained a prescription *9 op Opinion the Court name, another, for non-
bottle, defendant’s bearing drug. narcotic there held that was Davenport
The Court in verdict con- jury support evidence insufficient grams the .26 of victing possession Davenport Levin, writing for the Justice now Judge, heroin. panel the as reasoning Court, the expressed follows: theorem that on the "Davenport be convicted cannot of the heroin. possession must have been
someone presence house and in the "Davenport’s residence bearing a label carrying bag plastic of a bottle connecting him to the only evidence his name were Four lived in the brown bottle. heroin found from the fact to infer reasonable the house. It is not occupants that he— Davenport one of was that per- or Green —was Phillips Brown than or rather In in the brown bottle. placed capsules son who Davenport’s labeled plastic to the bottle addition bearing the name name, plastic bottles there were two Phillips. residents, There was Ardis of one of the other bottle, bag, or the that the brown no evidence inno- Davenport. Clearly there were belonged barrel ac- evidence —which theories —unrebutted cent Phillips or Ardis likely It that the facts. cord with would have living in the who anyone else equal access to the basement, possession of the inwas heroin. be shown to estab- association must than mere "More independent factor possession. 'An additional joint
lish must be the narcotic linking defendant with ” (Emphasis sup- App 256-257. 39 Mich shown.’ omitted.) and citations plied, footnotes evi- there to be sufficient the Court While a reasonable beyond guilty to find defendant dence general marijuana, possession doubt of reversal. required verdict proposition for the Davenport stands Court control of a dwelling house insufficient to sus- tain a knowingly possessing conviction an il- licit drug contained therein without some further evidence connecting the defendant with drug. The prosecutor points out that accurately Daven- port directly guilt concerned with beyond a doubt, present reasonable while the situation in- "probable volves the lesser cause” standard. How- ever, principles Davenport still apply. *10 cause,
In assessing probable
quantum
proof
different,
but
there
still must be some
evidence of the type or
to
quality necessary
sup-
port a
concept
conviction. That
was well stated by
Justice
dissenting opinion
People
Levin
Smith, 49
App 630, 639-640;
Mich
That
is illustrated by Johnson v United
v Summers
Opinion of the Court
(1948).
367;
Although the defendant clearly least control of the and drugs were deter- there, mined present to be Supreme Court held that no probable support cause existed to her factor, arrest. required additional she room, occupant the sole was not discov- ered until after the defendant was arrested: *11 Government, effect, "The that concedes the arrest- ing officer did not pe- have to cause arrest titioner until he had entered her room and found her to occupant. points the It specifically, referring be sole out just to the time entry, before 'For the at time agents did not know whether there was one or several It in the room. was reasonable to believe that might the room been opium smoking have an den.’ And ** * says,' it agents that when the were admitted into only petitioner the room present and found they had a believing reasonable basis for that she been had smok- ing opium and illicitly possessed thus the narcotic.’ quite Thus properly right the Government to stakes the arrest, on tip the the informer’s and the smell 584 571 68 Mich op the Court recognized knowledge officers but on the entry, before gained after, room, only that she was alone the and of, of wholly by therefore they authority, entry her home. It reason their quarters, of inside her after their observations of under color their obtained admission they the on which made arrest. obliged justify "Thus the Government to the arrest by justify the search and time to the search same 10, 16, by the will not do.” 333 US 17. arrest. This (Footnotes omitted.) Johnson, then, indicates of the quality evidence making proba- must examined in ble determination. cause
Certain additional
factors found to be sufficient
to link
drugs
prem-
the defendant
found on the
ises reappear
in the
frequently
cases. These in-
(1)
clude:
attempted flight and
destruction
v
evidence
Davenport,
(2)
supra,
narcotics,
close proximity to the
People v
Davenport,
California,
supra,
fn Ker v
256,
4;
374
23, 36, 37;
1623;
US
(1963),
83 S Ct
In the instant none those additional present. factors were Defendant was to be known occupant owner and an *12 People v Bashara, J. Dissent place in out-of-the-way in an drugs were found However, no other evidence house. there was linking drugs those at the time of his defendant facts as We the same set of described arrest. have Davenport occupancy by the de- —mere in which dwelling illegal fendant with others of drugs certainly likely” "as are located. It Dwight Calhoun, of the other on or one premises, drugs those the basement. placed circumstances, must hold that
Under those we no cause to arrest officers had possessing drugs for knowingly found in the basement of his house. seizure of justified the heroin involved here cannot be as the incident to arrest. Since the product of a search possible for the search have legal other bases also rejected, uphold been we must decision judge quashing trial the evidence and suppressing the information.
Affirmed. Cavanagh, concurred! J.,
M. F. Bashara, (dissenting). respectfully J. I dissent from Brothers’ I believe there was my opinion. probable cause to arrest and that person search of his was a lawful incident to an arrest.
In Michigan peace may officer arrest a without a warrant "when he has reasonable cause to believe that a has felony been committed reasonable cause to believe such has [that] 28.874(d). 764.15(d); committed it”. MCLA MSA Each case analyzed light pecu- must be Wong Sun v facing liar circumstances the officer. United 471, 479; 371 US 9 L S Ct Orlando, Ed 2d 305 Mich (1943). 689; 9 NW2d *13 App 586 68 Mich 571 Bashara, J. by Dissent Case the police law teaches that officer makes determination to whether the ar- rested has not felony committed as a legal scholar, but as a of prudence man reasonable 494, caution. People v Harper, 501; 365 Mich 113 (1962), cert den 371 US 930; NW2d 808 83 S Ct (1962). 9 302; L Draper Likewise, Ed 2d v 237 States, United 313; 79 329; 358 US S Ct 3 L Ed 2d 327 recognized that assessing probable cause one in "the factual prac- deals tical life everyday considerations of on which rea- men, technicians, sonable and prudent legal act.”
In the instant police case the were armed with a warrant to premises at 9356 the Mansfield for narcotics. This indicates the were aware taking narcotics activity place that address.
On entry to the home the police immediately arrested one Calhoun who had attempted to dis- "pack” card a of heroin. A premises search of the uncovered more heroin in a common area of the At point, home. that although there approxi- were mately six other citizens
arrested only had previously
who
admitted
he
that
lived there and was the
It
owner.
reasonable
that he
infer
controlled
as well as
heroin
Hintz,
People
v
found there.
196;
See
(1975).
supra. This is clearly the function of the courts. People v Davenport, See Mich App (1972). NW2d on People
My Brothers’ Davenport, v reliance v Summers Dissent J. Bashara, supra, (then Davenport, is misplaced. In Justice Judge) Levin determined there was insufficient evidence to find the defendant guilty beyond a reasonable of possession doubt of narcotics. The drugs were discovered in a common area of a house which was under control of a number including the defendant. This does not mean there was no cause to arrest. quantum proof needed to convict greater than required for probable cause to (then arrest. Justice Judge) recognized Levin difference in People Degraffenreid, 19 Mich App *14 702, 708 2; n (1969), 317 NW2d when he stated: presence, "While mere knowledge even with that a criminal offense is about to being committed, be or is enough support a conviction of a as an * * * aider or abettor under the presence statute such enough probable establish justifying cause an (Citations ommitted.) arrest.” I
Finally, that Johnson v United agree cannot 10; 333 US S Ct L Ed 436 is dispositive. In that government case the argued probable cause existed to arrest once the petitioner discovered the was the sole occu- pant of the room. The United Supreme States Court in a five to four decision held illegally gained entrance to the room under color authority. Therefore, the arrest could not justified by any facts that occurred after they gained entrance. The Court did not reach the issue probable whether cause to arrest existed where petitioner was the sole occupant of a room where narcotics were found. Nor did it reach the crucial issue of case, the instant as to whether there 68 Bashara, Dissent J. would have been cause to arrest there been more than occupant one in the room.
I would reverse the judge trial and reinstate charges against the defendant.