People v. Claybon, Docket No. 58828

• Decision Date: 08 June 1983
• Docket Number: Docket No. 58828
• Citation: 335 N.W.2d 493,124 Mich.App. 385
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cleotha CLAYBON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 493

335 N.W.2d 493

124 Mich.App. 385

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cleotha CLAYBON, Defendant-Appellant.

Docket No. 58828.

Court of Appeals of Michigan.

Submitted Jan. 11, 1983.

Decided March 22, 1983.

Released For Publication June 8, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., and David A. King, Asst. Pros. Atty., for the People.

Norman Fell, Ann Arbor, for defendant-appellant.

Before HOLBROOK, P.J., and CYNAR and MOES, ^* JJ.

PER CURIAM.

Defendant was found guilty by a jury of possession with intent to deliver less than 50 grams of a controlled substance (cocaine). M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401). Defendant was sentenced to a prison term of from 5 to 20 years. He appeals as of right.

Prior to trial, defendant moved to suppress evidence (cocaine) found in his pockets as the product of an illegal search and seizure. The trial judge denied defendant's request, finding that there was probable cause to believe that a felony had been committed and probable cause to believe that due to exigent circumstances an immediate search of defendant was necessary. The prosecutor moved to introduce, under the similar acts rule of evidence, the heroin found in defendant's pockets and in his basement when defendant and his home were searched. The trial court, without objection from defendant, granted the motion.

The evidence produced at trial revealed that, in the early morning hours of December 25, 1981, the Ypsilanti Police Department received a telephone call purportedly made by defendant's wife, Joann Claybon. Mrs. Claybon allegedly reported that her husband was selling cocaine out of the basement of their home. When two officers from the police department arrived, they were admitted into the home by Mrs. Claybon. Patricia Hoskins, defendant's adult daughter, was present when the officers arrived. Mrs. Claybon told the officers that defendant had sold cocaine from their basement and that he had some in his pockets. The officers, after noticing a bulge in defendant's pockets, told defendant to empty them. Defendant refused. One officer reached into defendant's pockets and pulled out $91 in cash, 22 folded envelopes containing a white substance and plastic packages containing a white powdery substance. Defendant's daughter led one of the officers downstairs where he found a paper bag containing mirrors, strainers, measuring spoons, cotton balls, syringes, bottle caps and nylon stockings.

Patricia Hoskins testified that she took an officer downstairs but did not point out the bag containing defendant's drug paraphernalia. Hoskins stated that the officer found it. On direct examination, Hoskins was asked whether she could recall telling the officer that defendant and his friends used the basement to shoot up heroin and cocaine. She stated that she did not remember talking to the officer, but that her mother may have made the statement. Several times throughout the prosecutor's direct examination, Hoskins was asked to try to recall whether she had made any statements to the police officers. After each question, Hoskins replied in the negative.

Officer Lawrence Wilkins of the Ypsilanti Police Department testified that, when he entered the house, defendant and Mrs. Claybon were involved in a heated argument. Mrs. Claybon threw a glass at defendant, hitting him in the head. Officer Wilkins testified, over a defense objection, that Hoskins told him that her father was dealing in cocaine and making it downstairs in the basement. After she led him downstairs, Hoskins walked to the far wall of the basement, picked up a grocery bag and handed it to the officer. She also directed the officer over to the washer-dryer area where Hoskins told him that "junkies shoot up there". An account ledger was discovered in the basement listing amounts ranging from $50 to $900 owed to defendant. The ledger also listed the number of "bags" given to each person. Defendant was not arrested that night because, in the officer's opinion, an arrest could easily be completed after a determination that the confiscated paraphernalia contained a controlled substance.

Dr. David Burke of the Michigan State Police testified that he analyzed the packets found on defendant's person. Some of the packets contained heroin, and others contained cocaine. Of the substances found in the basement, Dr. Burke stated that one bag contained heroin. Burke was unable to confirm the presence of heroin in this package beyond a reasonable doubt.

I

The trial court denied defendant's motion to suppress evidence, finding that the officers were invited into the house and that reference was made to cocaine in defendant's pockets, thus supplying the necessary probable cause to search. The court further found that exigent circumstances existed for an immediate search because the evidence could have been easily destroyed.

It has been held that a search and seizure without a warrant is per se unreasonable unless shown to fall within one of the various exceptions to the warrant requirement. People v. Dugan, 102 Mich.App. 497, 503, 302 N.W.2d 209 (1980), lv. den. 411 Mich. 989 (1981). The exigent circumstances exception provides that when an officer has probable cause to believe that a search of a certain place will produce specific evidence of that crime, there is no need for a warrant if the officer also has probable cause to believe that an immediate warrantless search is necessary in order to (1) protect the officer or others, (2) prevent the loss or destruction of evidence or (3) prevent the escape of the accused. Dugan, supra, 102 Mich.App. p. 503, 302 N.W.2d 209.

Defendant contends that no exigent circumstances existed to justify a warrantless search. He suggests that, because two officers were present at the scene, one officer could have stayed while the other secured the necessary warrant. The existence of exigent circumstances inherently depends on a case-by-case determination. People v. Beachman, 98 Mich.App. 544, 554, 296 N.W.2d 305 (1980). In People v. Warner, 401 Mich. 186, 196, 207, 258 N.W.2d 385 (1977), the Court found that exigent circumstances existed when a telephone operator overheard one party say, " 'I've got drugs' ". The other party responded that he would be there in 15 minutes. The Court held that the "urgency of the situation * * * in addition to the nature and potential destructibility of drugs, make this * * * type of case [one] presenting sufficient exigent circumstances to obviate the necessity for a warrant". Warner, supra, p. 207, 258 N.W.2d 385.

The officers properly searched defendant in this case. The trial judge did not err when he found exigent circumstances existed and admitted the evidence at trial. When the two officers entered the Claybon residence, an argument was in progress. Mrs. Claybon threw a glass at defendant and hit him in the head. Mrs. Claybon accused defendant of selling cocaine from their basement. She also stated that defendant possessed cocaine in his pocket at that particular moment. This statement gave the officers probable cause to search defendant. The officers requested that defendant empty his pockets. Defendant refused. Although the officers did not fear for their lives, there was probable cause to believe that an immediate warrantless search was required. The use or destruction of the cocaine was more than likely. If the officers had left to obtain a search warrant, the drugs probably would have been disposed of in some manner.

Defendant suggests that one officer should have left the premises and obtained a search warrant while the other guarded defendant and his family. This issue was discussed in People v. Hopko, 79 Mich.App. 611, 262 N.W.2d 877 (1977), lv. den. 402 Mich. 950 (1978). There, police officers entered the property of a cotenant and seized 54 marijuana plants growing on the property.

"Though marijuana plants, unlike automobiles, do not run away, they are nevertheless quickly removed by pulling them from the ground. Thus, to a certain extent, exigent circumstances existed. Since defendant was present in his downstairs apartment all during the time the two officers were conducting the investigation, the danger existed that had the officers left to obtain a warrant, the defendant could remove the evidence. Although one officer could have remained on guard while the other went for a warrant, such a requirement would be unreasonable on these facts." Hopko, supra, 79 Mich.App. p. 624, 262 N.W.2d 877.

In our case, it would have been unreasonable to leave one officer at the scene. When the officers arrived, the occupants of the house were engaged in an argument. As the situation became more heated, defendant's wife picked up a glass and threw it at defendant, striking him in the forehead. One officer would have had to guard three angry persons. The immediate search was more reasonable in terms of the safety of the officers and effective preservation of the evidence than a search after obtaining a warrant and placing a guard in the home of the defendant. Defendant's claim of error on this issue is without merit.

II

When defendant was searched, 22 packets, some containing heroin and some containing cocaine, were found in his pockets. Shortly thereafter, more heroin was found in defendant's basement. Prior to trial, the prosecutor moved to introduce, under the similar acts rule of evidence, testimony concerning the heroin that was found. See MRE 404(b). The prosecutor argued that the presence of the heroin showed defendant's intent to possess and deliver cocaine. The trial court ruled that the evidence of other drugs found on defendant and in his basement was admissible into evidence.

Before similar acts testimony can be admitted into evidence, it must be probative of one of the purposes specified in MRE 404(b) and that purpose must be "in issue" in the case. People v. Wagner, 104 Mich.App. 169,...