analyzing the legality of a warrantless search, seizure, and arrest even though raised for the first time on appealSummary of this case from Wilson v. Brewer
Docket No. 43722.
Decided February 20, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Gary R. Dettloff, Assistant Prosecuting Attorney, for the people.
Anthony C. Penta, Jr., for defendant on appeal.
Defendant was charged with possession of heroin, with intent to deliver, MCL 335.341(1)(a); MSA 18.1070(41)(1)(a). Following a jury trial defendant was convicted and sentenced to a term of 6 to 20 years imprisonment. Defendant appeals as of right.
The defendant was arrested on May 3, 1978, in Ecorse, Michigan, as he was about to leave the Homespun Restaurant. The proprietor, Mr. Kelly Wright, called the Ecorse Police Department to report a disturbance involving the defendant. The police officer who received the call and the responding officers who reported to the scene testified that the caller indicated the disturbance was narcotics related. Mr. Wright testified that he reported a disturbance of the peace and that he "might have told them that they had some drugs".
Upon arrival of the police, Mr. Wright singled out the defendant whereupon Officer Alvin Demings prevented the defendant from leaving the restaurant, ordered him to a table, and directed him to empty his pockets. The proprietor and several customers were present during this procedure. Four white bundles were thrown to the floor containing 39 packets filled with a substance subsequently analyzed as heroin.
Defendant raises for the first time on appeal the legality of the warrantless search, seizure and arrest. Since an important constitutional issue is raised and the question of the admissibility of the evidence produced by the search is decisive of the outcome of the case, appellate review is appropriate. People v Merchant, 86 Mich. App. 355; 272 N.W.2d 656 (1978), People v Hoerl, 88 Mich. App. 693; 278 N.W.2d 721 (1979).
Defendant contends that the warrantless search and seizure and subsequent arrest were invalid for lack of probable cause. Under the facts presented in this case it appears that probable cause existed and the warrantless search was valid. In People v Frank Smith, 43 Mich. App. 400; 204 N.W.2d 308 (1972), this Court discussed a specific test to be applied in determining the propriety of a warrantless search. The officer must have probable cause to believe that a crime has been committed and probable cause to believe that his search will produce evidence of that crime. Further, the officer must have probable cause to believe that an immediate, warrantless search is necessary in order to (1) protect himself or others, (2) prevent the destruction or loss of evidence or (3) prevent the escape of the accused.
The case at bar fits squarely within the above description and leads to the conclusion that probable cause existed. According to police testimony Mr. Wright reported that drug dealing was transpiring in his establishment and that fact was radio-transmitted to the responding officers. Mr. Wright subsequently identified the defendant as the subject of the call. Consideration may also be given to the information possessed by the officers at the time of the search. People v White, 392 Mich. 404; 221 N.W.2d 357 (1974), People v Ulrich, 83 Mich. App. 19; 268 N.W.2d 269 (1978). Mr. Wright was already known to the police due to the fact that he had reported similar incidents in the past. At the time of the incident reported here, four cases were pending related to similar disturbances at the Homespun Restaurant. The area in general was known to police as a site of substantial drug trafficking. The defendant himself was a suspected narcotics user, though he had not been previously arrested. Defendant was attempting to flee from the scene at the time he was pointed out to police as the subject of the alleged disturbance.
The officer also had probable cause to believe a warrantless search was necessary in order to prevent the destruction or loss of the evidence or the escape of the accused. Defendant was in the process of exiting from the restaurant with the heroin on his person when the police arrived and detained him.
Defendant's major contention is that the warrantless arrest was invalid in that the requisite probable cause, based on the informant's tip, was lacking. Defendant argues that in order to constitute probable cause for arrest, the evidence obtained from an informant must satisfy the following requirements: (1) the police must have reason to believe the information is reliable, and (2) the police must be informed of the underlying circumstances upon which the informant based his conclusion. Aguilar v Texas, 378 U.S. 108; 84 S.Ct. 1509; 12 L.Ed.2d 723 (1964), People v Hoerl, supra. However, in the instant case, defendant's reliance on the Aguilar standards is misplaced. Aguilar applies to the unnamed informant, the professional criminal stool pigeon, or the criminally disposed type of informant who are considered inherently unreliable. People v Emmert, 76 Mich. App. 26; 255 N.W.2d 757 (1977). This Court has held that the Aguilar test is inapplicable when, as here, the information is provided by known informants who are ordinary citizens. People v Rodriguez, 83 Mich. App. 606; 269 N.W.2d 199 (1978), cf. People v Tooks, 403 Mich. 568; 271 N.W.2d 503 (1978).
Defendant also argues that the trial court erred in its decision to admit evidence of two prior convictions of the defendant if he elected to testify. We find no error in the court's application of MRE 609 or the standards set out in People v Crawford, 83 Mich. App. 35, 39; 268 N.W.2d 275 (1978), and People v Baldwin, 405 Mich. 550; 275 N.W.2d 253 (1979).
Lastly, defendant assigns error to the admission of testimony of a prosecution witness that he knew defendant through arrests. No objection was made at trial nor was a cautionary instruction requested. It does not appear that the prosecution intentionally elicited this reference to arrests other than the one involved here. Consequently, in the absence of manifest injustice, appellate review is precluded.