People v. Goeckerman

• Decision Date: 11 August 1983
• Docket Number: Docket No. 62299
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Neil Thomas GOECKERMAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 557

337 N.W.2d 557

126 Mich.App. 517

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Neil Thomas GOECKERMAN, Defendant-Appellant.

Docket No. 62299.

Court of Appeals of Michigan.

Submitted May 4, 1983.

Decided June 21, 1983.

Released for Publication Aug. 11, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John B. Huss, Pros. Atty., and Jann Ryan Baugh, Asst. Atty. Gen., for the people.

Don Ferris, Ann Arbor, for defendant-appellant.

Before ALLEN, P.J., and R.B. BURNS and WALSH, JJ.

WALSH, Judge.

Defendant, Neil Thomas Goeckerman, was convicted in a nonjury trial of possession of less than 50 grams of cocaine. M.C.L. Secs. 333.7403(1), 333.7403(2)(a)(iv); M.S.A. Secs. 14.15(7403)(1), 14.15(7403)(2)(a)(iv). He was sentenced to a prison term of two to four years.

The only issue raised on appeal, as in the lower courts, is the legality of defendant's arrest without a warrant. Defendant has persistently argued that the arresting police did not have probable cause to arrest him. ¹ The district and circuit court judges disagreed. Defendant's opposition to bindover was unsuccessful in district court, as was his circuit court motion to quash the information and to suppress evidence. The circuit court's ruling was based solely on the preliminary examination evidence. No additional testimony was taken at the motion hearing. Defendant's suppression motion was not renewed at trial.

There is no dispute that, if defendant's arrest was illegal, the cocaine was not admissible into evidence.

The sole preliminary examination witness was Officer Karl Schreiner of the City of Grayling police department. He testified that, at 11:46 p.m. on June 7, 1980, the Crawford County Sheriff's Department received a complaint concerning a possible violation of the Public Health Code. The complaint was transmitted to Officer Schreiner in his patrol vehicle. He was told to go to the Pioneer Room of the Shoppenagon Hotel and talk with the manager.

Upon arrival at the hotel, he spoke with the manager, who told him that one of his waitresses, Diana Lane, had reported seeing defendant, a customer in the Pioneer Room, with white or yellow powder in front of him on his table. Ms. Lane had told the manager that defendant had been in the process of splitting up the powder. After talking with Ms. Lane, the manager had gone by defendant's table but had seen no powder. He told the police that the men at defendant's table had been drinking champagne.

Officer Schreiner and a deputy accompanying him then spoke with Ms. Lane, who told them she had seen three persons sitting at defendant's table. They had been drinking champagne. At 11:30 p.m., she passed by the table and saw white or yellow powder on the table in front of defendant. Defendant offered her some of the powder, asking if she would like a "toot". In her opinion, the powder was cocaine. She had never used cocaine and wasn't sure if she had ever seen cocaine. She declined defendant's offer. According to Officer Schreiner, to offer someone a "toot" is to offer him or her cocaine for use; it could possibly also relate to other drugs.

The police officers stationed themselves in the manager's office behind a one-way mirror through which they observed defendant's table until defendant left the bar at 2 a.m. Officer Schreiner saw defendant and one other man, and sometimes a third man, at the table. The men spent the two hours talking to people at the next table, and getting up and down from the table; at times, they got up to dance. There was nothing unusual in defendant's behavior during that time; no powder was seen. Officer Schreiner did not recall seeing defendant drink anything and did not observe what the men had been drinking. He testified, however, that defendant was intoxicated when he was arrested.

At some point during those two hours, the police telephoned the prosecuting attorney and had Ms. Lane speak with him. According to Officer Schreiner, defendant's arrest, after he left the hotel, was based on what Ms. Lane had reported and on the opinion of the prosecuting attorney. Officer Schreiner had had no previous contact with Ms. Lane.

At the conclusion of proofs, defense counsel argued that the police had not had probable cause to believe that a felony had been committed. The district court disagreed, ruling that the information supplied by Ms. Lane had given the police probable cause to arrest defendant. The ruling was supported by the following findings:

" * * * that she was an employee in the restaurant or bar or lounge of a local establishment in the City of Grayling; that in the course of her activity as an employee in the bar area, she did observe a substance in front of the Defendant, which apparently has been stated by her to be a white powder; further statements by her that the Defendant offered her a "Toot" and in his knowledge and experience as a police officer, this meaning is an offering of a substance commonly referred to as cocaine to be used by the individual offering this information."

In denying defendant's motion to quash the information and to suppress evidence, the circuit court rejected defendant's claim that the police were not justified in relying on Ms. Lane's report of defendant's activities. The court observed that Ms. Lane was an employee who remained on the scene after speaking with the police and that she had even spoken with the prosecuting attorney. Recognizing that the prosecution had not presented "the strongest case by any means", the court ruled that there had been probable cause to arrest defendant and that the bindover had been proper.

Defendant's arrest was not illegal if the police had probable cause to believe that a felony had been committed and probable cause to believe defendant had committed it. M.C.L. Sec. 764.15; M.S.A. Sec. 28.874; People v. Potter, 115 Mich.App. 125, 134, 320 N.W.2d 313 (1982). In reviewing defendant's claim that the police lacked the requisite probable cause to arrest him, this Court must determine whether facts available to the police at the moment of arrest would have justified a fair-minded person of average intelligence and judgment in believing that defendant had committed a felony. Each case must be analyzed in light of the particular facts and circumstances confronting the arresting police. People v. Harper, 365 Mich. 494, 501, 113 N.W.2d 808 (1962); People v. Wade, 23 Mich.App . 132, 135, 178 N.W.2d 139 (1970), lv. den. 384 Mich. 758 (1970); People v. Potter, supra.

An officer's belief that a felony has been committed and that the person arrested committed it may be based on what the officer observes or on what he or she learns from a reliable source. "Information supplied from a reliable citizen source is enough to found a reasonable belief." People v. Horton, 98 Mich.App. 62, 66, 296 N.W.2d 184 (1980). People v. Herrera, 19 Mich.App. 216, 172 N.W.2d 529 (1969); ...