People v. Davis
| Decision Date | 19 January 1971 |
| Docket Number | 7850,7396,Docket Nos. 7883,No. 1,7881,7884,8521,1 |
| Citation | 185 N.W.2d 609,29 Mich.App. 443 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert DAVIS, Appellant. Appeal of Gerald J. FARENGER. Appeal of Rosemary CHWALEK. Appeal of Andrew BERCHENY. Appeal of Anthony J. IACONIS. Appeal of Thomas CURTIS |
| Court | Court of Appeal of Michigan — District of US |
Lawrence C. Burgess, Burgess & Burgess, Detroit, for Andrew Bercheny, Rosemary Chwalek, Robert Davis and Gerald J. Farenger.
Louis E. Barris, Detroit, for Anthony J. Iaconis.
Louis Zaidan, Detroit, for Thomas Curtis.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.
Before HOLBROOK, P.J., and R. B. BURNS and O'HARA, * JJ.
Defendants Robert J. Davis, Jr., Gerald J. Farenger, Rosemary Chwalek, Andrew Bercheny, Anthony J. Iaconis, and Thomas Curtis were tried in a consolidated trial by a jury in Wayne county circuit court on informations in 3 counts, charging possession of 5 grams of heroin. M.C.L.A. § 335.153 (Stat.Ann.1957 Rev. § 18.1123); conspiracy to possess 5 grams of heroin. M.C.L.A. § 750.157a (Stat.Ann.1970 Cum.Supp. § 28.354(1)); and control of 5 grams of heroin, M.C.L.A. § 335.153 (Stat.Ann.1957 Rev. § 18.1123). Each of the defendants was convicted on each of the three counts and sentenced to prison terms. Defendants' appeals have been consolidated.
On August 2, 1968, at approximately 9:55 p.m. defendants were arrested on premises known as 14544 Warren Avenue, Dearborn, Michigan. Defendants had been observed at intervals, at the premises, over a period from July 17 to August 2, on which date a search warrant was obtained, the premises raided, narcotics and narcotic paraphernalia seized, and the arrests made. Defendants, at the time of the police entry upon the premises, were found in a small living room in which a quantity of heroin was located, to which all of the defendants were situated in close proximity.
The officers, in the course of the raid, seized various items, admitted into evidence, including 13 piles of heroin, found on a magazine on a coffee table in the living room; the magazine in question; a strainer; money, consisting of four one dollar bills and four quarters; a needle in a needle case; an eye dropper; a glass syringe and two metal spoons, all found atop the coffee table; a box containing 24 insulin needles; one syringe; and sterile lubricant, found underneath the top shelf of the coffee table; an eye dropper with needle attached; two needle cases; and a needle, found on top of the bathroom sink; a piece of cotton found in the bathroom; a tissue paper with a dark brown substance on it; two books of matches; a tablespoon; an eye dropper, with needle attached and a substance inside the eye dropper, all located on a kitchen table in the living room; a syringe found between the wall and a chair facing the table; a box of aluminum foil; a tissue with brown spots on it; and a necktie, all found on the couch in the living room; and a box, found on a mantel in the living room, and containing pipe cleaners; measuring spoons; eye droppers; two glass syringes; needles in a case; and cigarette rolling paper.
A preliminary examination was had on August 9, 1968, as to all of the defendants, with the exception of Iaconis, who waived examination. At the examination, and again prior to trial, defendants, with the exception of Iaconis, attacked the search warrant and filed motions to quash the warrant and suppress evidence seized thereunder. These motions were denied.
On December 19, 1968, following the impaneling of the jury and the taking of testimony, and after all parties had rested, counsel for each defendant, with the exception of Iaconis, made motions for a mistrial based upon the prejudicial effect of alleged duplicitous counts contained in the information as originally filed, the first count of which carried two charges, I.e., possession and control of heroin. A separate information, identical to that filed as to all defendants, was filed as to Iaconis. Counsel for defendant Iaconis was absent from court on December 19, 1968, Iaconis being represented that day by another attorney, through arrangement between counsel and the court. When the motions for mistrial were made, substitute counsel stated that he did not believe he could 'make this determination' for Iaconis' attorney. The court stated that it 'can make a fair inference that (Iaconis' counsel) would join' in the motion. Thereupon, the court granted a mistrial as to all defendants.
On December 23, 1968, an amended information was filed as to all defendants except Iaconis, and an identical separate amended information was filed as to Iaconis, each including three counts separating the offenses of possession and control, previously combined in count I of each of the original informations. At the beginning of the second trial, before a new jury, which commenced January 2, 1969, defendant Iaconis moved the court to quash the second information on several grounds, including double jeopardy. The court denied this motion as well as later motions by defendants for directed verdicts.
On appeal, each of the defendants raises the following issues which we restate and consider in order:
A. Was the affidavit in support of the search warrant legally sufficient?
The affidavit of a Dearborn police officer, in support of the search warrant issued in this cause on August 2, 1968, states in part as follows:
'The (affiant) * * * says that he has probable cause to believe and does believe that the apartment premises located at the rear of 14544 West Warren Avenue in the City of Dearborn, County of Wayne and State of Michigan, used, controlled and occupied by Ronald Baldridge, is used as and for the unlawful possession, control, sale, administering and dispensing of narcotic drugs, and that persons resort thereto for such purposes, and that the grounds of his belief are as follows:
'That affiant is a patrolman of the Dearborn Police Department and has been a police officer in the State of Michigan for some various lengths of time assigned to the investigation and suppression of illicit and illegal narcotic operations; that affiant has been a member of said law enforcement agency for some time past and has devoted a considerable portion of his time to the suppression of this type of activity so that he is thoroughly familiar with all the methods and manners in which this operation is operated.
'That in the afternoon of Wednesday, July 10, 1968, affiant, Corporal Larry Renaud, received information from a brother police officer, Corporal Forrest Henry, to the effect that an informant known to Corporal Henry and this affiant to be reliable, credible and knowledgeable because of previous experiences with such informant, had driven a relative to these premises for the avowed purpose of purchasing a package of illicit narcotics, that such informant saw the relative enter these premises after the door was opened to him by one Ronald Baldridge, and return very shortly thereafter with a package of illicit narcotic drugs which informant then saw the relative prepare and inject into his body; further, that said Ronald Baldridge kept a ready supply of narcotic drugs on hand for sale and injection thereof in the above mentioned apartment. The informant also relates that the aforementioned person kept these same narcotics either on his person, under pillows or cushions, on window ledges or in the bathroom of said apartment. This informant goes on to relate that on several occasions, several persons known to this informant to be credible sources of information, have gone to said apartment and purchased narcotic drugs from the above mentioned person, and that the narcotics were secreted in the above stated places, and that the last time was July 31, 1968.
'That a surveillance has been kept by members of the Dearborn Police Department of the aforementioned apartment and premises commencing July 10, 1968, and specifically including that date and July 17, 18, 19, 25, 27, 31, and August 1, 1968, on which occasions they have observed a coming and going of persons in the following suspicious manner: they come singly and in pairs, knock on the door, and Ronald Baldridge will open a blind and look out to determine who is there before letting anyone in. Within moments of such entry, a bathroom light goes on and in less time than one can urinate, the light goes off. Within a half hour, these same people leave the premises. In the majority of instances, the people leaving have left in a much different condition physically than that in which they entered, to wit: they appeared to officers watching the apartment to be in a narcotic stupor when they left, which they were not when they came in. This observation has been made from as close as two feet to the subject.
'That it has also been observed by these police officers that each and every time that any person leaves the above mentioned premises, the said Ronald Baldridge will first open a blind and peer outside for a moment before opening the door, and in each instance, a moment or two elapses before the subjects leave.
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