People v. Hamp

• Citation: 428 N.W.2d 16,170 Mich.App. 24
• Decision Date: 29 August 1988
• Docket Number: Docket No. 96018
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joel Patrick HAMP, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 16

428 N.W.2d 16

170 Mich.App. 24

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joel Patrick HAMP, Defendant-Appellant.

Docket No. 96018.

Court of Appeals of Michigan.

Submitted April 19, 1988.

Decided July 18, 1988.

Released for Publication Aug. 29, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, and Brigid Vincent Marley, Asst. Pros. Atty., for the People.

Gerald M. Lorence, Detroit, for defendant-appellant on appeal.

Before CYNAR, P.J., and GRIBBS and GILLESPIE, ^* JJ.

CYNAR, Presiding Judge.

Following a bench trial in Wayne Circuit Court, defendant, Joel P. Hamp, was found guilty of one count of possession of a mixture containing cocaine of 225 grams or more, but less than 650 grams, with the intent to deliver, M.C.L. Sec. 333.7401(2)(a)(ii); M.S.A. Sec. 14.15(7401)(2)(a)(ii), and one count of conspiracy to possess cocaine, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1); M.C.L. Sec. 333.7401(2)(a)(ii); M.S.A. Sec. 14.15(7401)(2)(a)(ii). Defendant was sentenced to concurrent prison terms of from two to seven years on the conspiracy conviction and twenty to thirty years on the possession with intent to deliver conviction. He now appeals as of right from his convictions and sentences.

Defendant's convictions arose from an incident that took place at the home of Mark and Dorothy Konrad, located at 18973 Gillman in Livonia, Michigan. On August 30, 1984, at approximately 5:00 to 6:00 p.m., four plainclothes police officers of the Livonia Police Department were present at the Konrad home. Mr. Konrad had been arrested earlier that same day on another drug-related incident. The officers were at the Konrad residence awaiting the procurement of a search warrant for the Konrad home. Mrs. Dorothy Konrad was being held in the home while the officers waited for the search warrant.

Officers Peter Kunst and Gary Sitner testified that, while they were waiting for the warrant, several persons came to the Konrad residence. On at least twelve different occasions, Officer Sitner identified himself as a police officer and obtained the visitor's name before turning him or her away.

At approximately 6:30 p.m., defendant arrived at the Konrad home. He was described as carrying a Kodak slide carousel box. On top of this box was an egg-shaped package, completely taped in masking tape and hidden inside a pair of men's Khaki shorts. A baseball cap was resting on top of the shorts. Officer Kunst was standing outside the Konrad residence as the defendant came closer to the house.

Upon his arrival, defendant asked Officer Kunst if Mark Konrad was home. The officer replied that Mark was not home, but his wife was. The officer then asked defendant if he had something to drop off. Defendant answered yes. The officer told him Mrs. Konrad was at home and he could give it to her.

Defendant proceeded up the front porch, opened the front door, and stepped inside the house. As Officer Kunst was reaching for his badge wallet, defendant knocked the officer against the door and ran out the front door, dropping the package on the front lawn. Defendant was apprehended approximately 2-1/2 blocks away. He was returned to the Konrad residence. At the Konrad home, the package was opened and a white powdery substance was discovered. The powder field tested positive for cocaine.

Officer Sitner testified that defendant ran when Sitner announced that he was a police officer. Defendant denied that anyone identified himself as a police officer. Instead, defendant stated that he ran because he did not know what was happening when he entered the Konrad home since he saw Mrs. Konrad crying and Officer Kunst attempted to grab his arm.

David Burke, a state police chemist, testified that the package that was seized from defendant weighed 881.85 grams and was a seventy-five percent cocaine/twenty-five percent Mannitol mixture.

Defendant testified in his own behalf. He stated that, on August 26, 1984, he and his friend, Chris VanGison, traveled to Miami, Florida, in a rental car that was obtained by defendant with the use of his girlfriend's credit card. While in Miami, VanGison picked up a duffle bag from a bridal shop in downtown Miami. Thereafter, they drove back to Michigan, arriving on August 30, 1984. That same day, defendant was asked by VanGison to deliver a package to Mark Konrad. Defendant admitted that he knew that the package contained drugs, although he did not know the quantity. He was promised $500 for making the delivery.

On December 4, 1986, the trial court issued the verdict. The court found that defendant was aware that the trip to Florida was for the purpose of obtaining drugs. Because defendant was aware of the contents of the package, he was found guilty of conspiracy to possess cocaine with the intent to deliver an amount of a mixture containing cocaine less than 650 grams, but more than 225 grams. The court further found that knowledge of the weight of the drugs possessed with the intent to deliver was a necessary element of the crime. Therefore, because defendant did not know that the drugs that he was delivering weighed more than 650 grams, he could not be convicted of possession with intent to deliver an amount of 650 grams or more. However, the court concluded that it could be inferred that defendant knew the amount of drugs would be at least 225 grams, but less than 650 grams. Therefore, defendant was found guilty of possession with intent to deliver an amount of cocaine of 225 grams or more, but less than 650 grams. Following the imposition of his sentences, defendant filed the instant claim of appeal, raising four issues.

First, defendant alleges that the trial court clearly erred in denying his motion to suppress evidence of the seizure of the package containing cocaine. Defendant maintains that he was "seized" by the officers within the meaning of the United States Constitution the moment he entered the Konrad residence. The seizure was illegal, he argues, because the police had no particularized suspicion that defendant was engaged in criminal activity when he came to the Konrad home and there was no probable cause for his arrest. Therefore, defendant contends, any evidence derived from his illegal seizure should have been suppressed as "fruit of the poisonous tree."

An evidentiary hearing on defendant's motion to suppress the cocaine was held on July 7, 1986, before Judge Paul S. Teranes. Judge Teranes issued his written opinion on August 29, 1986, finding that the seizure of the cocaine was legal. Citing People v. Wright, 151 Mich.App. 354, 390 N.W.2d 187 (1986), Judge Teranes concluded that defendant abandoned the package containing the cocaine as he ran out of the Konrad home, thereby eliminating the need for a search warrant to seize the package and then open it.

In addition, Judge Teranes concluded that there was probable cause to believe that defendant was carrying cocaine since Officer Kunst could see a portion of the egg-shaped object and it was reasonable for the officer to believe that defendant was carrying contraband since the police were at the home of Mark Konrad, who had completed a cocaine sale earlier that day. Finally, the court found that a warrant was unnecessary to detain defendant due to exigent circumstances.

A trial court's decision on a motion to suppress evidence will be reversed only if the trial court abused its discretion or if its decision is clearly erroneous. People v. Tanis, 153 Mich.App. 806, 808, 396 N.W.2d 544 (1986), lv. den. 426 Mich. 877 (1986). A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made. People v. Harris, 164 Mich.App. 567, 571, 417 N.W.2d 502 (1987).

Defendant argues that the moment he entered the Konrad residence, with Officer Kunst behind him and Officer Sitner in front of him and reaching for their badges, he was "seized" within the meaning of the Fourth Amendment to the United States Constitution, thereby requiring the officers to have probable cause to believe that he was engaged in criminal activity. The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const.Am. IV. ¹

The Fourth Amendment prohibits all searches and seizures that are unreasonable. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). The Fourth Amendment applies to all seizures of a person, including seizures that are brief and short of a traditional arrest. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). Generally, seizures are only reasonable for purposes of the Fourth Amendment if based upon probable cause. Dunaway v. New York, 442 U.S. 200, 207-209, 99 S.Ct. 2248, 2253-54, 60 L.Ed.2d 824 (1979).

Given the parties' agreement that the lawfulness of the seizure of the package containing cocaine is governed by a probable cause standard, we proceed to analyze the seizure as such. "Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge, and of which they had reasonably trustworthy information, [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed [by the person to be arrested]." Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949), quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 162, 69 L.Ed. 543; 39 ALR 790 (1925).

Our Court has defined probable cause as

"a state of mind which stems from some fact, circumstance or information which would create an honest belief in the mind of a reasonably prudent person. More specifically, probable cause to search exists where...