People v. Davis

• Decision Date: 20 October 1976
• Docket Number: Docket No. 25957
• Citation: 72 Mich.App. 21,248 N.W.2d 690
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charley DAVIS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 690

248 N.W.2d 690

72 Mich.App. 21

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Charley DAVIS, Defendant-Appellee.

Docket No. 25957.

Court of Appeals of Michigan.

Oct. 20, 1976.

Released for Publication Jan. 17, 1977.

David D. Murphy, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief Asst. Pros. Atty., Timothy A. Baughman, Asst. Pros. Atty., for defendant-appellee.

Before V. J. BRENNAN, P.J., and KAUFMAN and CAMPBELL, ^* JJ.

KAUFMAN, Judge.

Defendant was charged with two counts of possession of heroin, M.C.L.A. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a).

The pertinent facts are as follows: Pursuant to a search warrant issued by a Recorder's Court judge, acting as a magistrate, the Detroit Police raided and searched an apartment located on Linwood Avenue in Detroit. In the course of the search, the officers found a powdery substance which they believed to be heroin and which they also believed to be in the possession and control of the defendant.

The affidavit which was used to justify the issuance of the search warrant recited in part the following:

'On June 3, 1975 affiant in conjunction with informant went to 15950 LINWOOD apt. #201 and purchased heroin from a b/m 5 9 , 140 lbs., med. complx., 25, 26 yrs. old, and known to the informant as 'Chuck.'

'On June 3, 1975 prior to the informant going into the premises of 15950 LINWOOD apt. #201, he was searched to see if he was carrying any money or narcotics, he was not. Informant carried into premises only SS funds given to him by affiant to make purchase with. Upon informant exit from the premises he was again searched and suspected heroin was recovered. On above date affiant field tested purchase and test proved purchase to be positively heroin. Purchase then placed into LSF #14--84403 and sent to the scientific lab. for analysis.'

The affidavit further stated:

'Affiant knows the informant to be credible and reliable who has worked with the affiant in the past on numberous (sic) occasions (sic) resulting in the arrest of numberous (sic) persons with three (3) convictions and cases pending.'

Defendant was arrested and arraigned on the possession charge. A motion to suppress the evidence, obtained as a result of the warrant, was filed before the commencement of trial. At the same time, defendant sought to compel disclosure of the informant's identity. The gravamen of defendant's position in the suppression motion centered on a two-fold attack on the admissibility of the heroin because first, 'the affidavit supporting the warrant fails to set forth facts which are sufficient to indicate the reliability of the person upon whom the affiant relies' and secondly, the 'underlying circumstances by which the person upon whom (the affiant) relied acquired (his) information are not described in sufficient detail to permit the Magistrate to conclude that the information itself is reliable. Spinelli v. United States, 393 U.S. 410, (89 S.Ct. 584, 21 L.Ed.2d 637) (1969); Aguilar v. Texas, 378 U.S. 108, (84 S.Ct. 1509, 12 L.Ed.2d 723) (1964)'.

In response to defendant's motion, the trial judge on July 14, 1975, denied defendant's motion without prejudice and, instead, ordered 'That the prosecution produce the 'informant' who supplied information to Detroit Police Officers to enable them to obtain a search warrant for the premises located at 15950 Linwood, Apt. #201, on or before August 4, 1975, for the purpose of In camera questioning by the Court'.

On August 4, 1975, production was adjourned until August 7, 1975 at which time an assistant prosecuting attorney appeared without producing the informant. The prosecutor justified his failure to comply with the trial court's order because of the government's privilege to withhold disclosure of an informant's identity where disclosure is neither relevant nor material to a fair resolution of defendant's case. Notwithstanding this contention, as a result of the prosecutor's failure to comply, the trial judge dismissed the case. The prosecutor appeals this dismissal as of right.

Initially, to resolve this appeal we must briefly review the standard set forth in Aguilar as a necessary backdrop to our discussion. The two-prong test to determine whether the information in the affidavit is sufficient to support issuance of a search warrant where the affiant relies on the hearsay statements of an unidentified informant is: the officer must inform the court of the 'underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * * * was 'credible' or his information 'reliable". Aguilar, supra, p. 114, 84 S.Ct. p. 1514.

Applying this test to the instant case, the Aguilar requirements are clearly met. The affidavit recounts with specificity the reliable manner in which the information concerning criminal activity was obtained. Significantly, the police officer was outside the apartment building when the informant allegedly obtained the heroin from the defendant. This allowed the affiant to closely monitor the purported sale. As a result, the circumstances of the buy had a sufficient indicia of reliability to cause the officer to believe the information was truthful....