People v. Greer

• Citation: 91 Mich.App. 18,282 N.W.2d 819
• Decision Date: 20 June 1979
• Docket Number: Docket No. 78-2268
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William GREER, Defendant-Appellee. 91 Mich.App. 18, 282 N.W.2d 819
• Court: Court of Appeal of Michigan (US)

Page 819

282 N.W.2d 819

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William GREER, Defendant-Appellee.

Docket No. 78-2268.

91 Mich.App. 18, 282 N.W.2d 819

Court of Appeals of Michigan.

June 20, 1979.

Released for Publication Aug. 22, 1979.

[91 MICHAPP 20] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., E. Gail Willhardt, Asst. Pros. Atty., for plaintiff-appellant.

William Greer, in pro. per.

Before KAUFMAN, P. J., and ALLEN and GLASER, ^* JJ.

KAUFMAN, Judge.

Defendant was charged with possession of heroin, M.C.L. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a). On October 28, 1977, Recorder's Court Judge Donald L. Hobson dismissed the charge after concluding that the search of the defendant was improper. Plaintiff's application for delayed leave to appeal was granted on July 26, 1978, and we reverse.

At the preliminary examination on June 22, 1977, police officer Daniel Keuhn testified that, on January 4, 1977, he received a phone call from a "reliable and credible informant". Officer Keuhn had had previous contact with the informant and the informant was registered with the Detroit Police Department. Officer Keuhn's five prior contacts with the informant had resulted in twelve arrests, two convictions, and one dismissal. The other nine cases were pending. The informant told Officer Keuhn that a person known to the informant as Steel Bill Greer, approximately 36 years old, was at that time at Duke's Playhouse Bar. He was wearing a brown jacket, blue jeans and a [91 MICHAPP 21] brown cap. He was selling heroin which he kept in tan coin envelopes in his jacket pocket.

Officer Keuhn proceeded directly to the bar. Upon entering the bar, he saw a person fitting the description given to him by the informant. He walked up to that person, learned that his name was William Greer, and placed him under arrest for violation of the Controlled Substances Act. He took three tan coin envelopes containing an off-white powder from defendant's right coat pocket. The substance appeared to be heroin.

At the conclusion of Officer Keuhn's testimony, defense counsel argued that the informant's tip alone could not provide sufficient probable cause for the arrest and search of defendant. Acting Recorder's Court Judge Donald Neitzel rejected defendant's argument and bound him over for trial on the possession of heroin charge.

On October 28, 1977, a bench trial began in Detroit Recorder's Court. Officer Keuhn was the first witness presented by the prosecution. He testified that, acting on information received from a reliable and credible informant, he went to Duke's Playhouse Bar on January 4, 1977. The informant had given him a description of someone selling heroin in the bar. Officer Keuhn saw defendant in the bar, approached him, asked him his name, and placed him under arrest. In the vestibule of a building next to the bar, Officer Keuhn searched defendant and found the coin envelopes believed to contain heroin.

At that point, defense counsel moved to dismiss the case because "in order to have probable cause he (the police officer) has to have made an independent investigation of his own that satisfies him". The prosecutor argued that the motion should have been brought prior to trial. The court [91 MICHAPP 22] ruled that the search of the defendant was improper and granted the motion to dismiss.

After this ruling, the prosecutor asked the court if he could present testimony on the issue. He expressed concern that, by waiting until mid-trial to make a motion to dismiss, defense counsel had deprived the People of an opportunity to appeal. Officer Keuhn then testified as to his five prior contacts with the informant. All of the prior contacts with the informant had been in cases dealing with drugs. In all of those cases, searches of the persons named by the informant had turned up narcotics. With regard to defendant, the informant had told the police officer the identity of the person selling drugs and where he was located. The informant told Officer Keuhn that he knew the person was selling heroin because he had been present in the bar and had just witnessed a transaction. The officer arrived at the bar seven to ten minutes after receiving the information. The description given to Officer Keuhn by the informant was of a black male, approximately 36 years old, wearing a brown hat, brown jacket, white sweater and blue jeans, known to the informant as Steel Bill Greer. The defendant fit the description perfectly and, in response to Officer Keuhn's question, stated that his name was William Greer.

After hearing this testimony of Officer Keuhn, Judge Hobson refused to change his earlier ruling granting defendant's motion to dismiss. The plaintiff now appeals.

In dismissing the charge against defendant, the trial court accepted defense counsel's argument that Officer Keuhn should have made an independent investigation of his own instead of relying solely on the information supplied to him by the informant. This ruling was clearly erroneous.

[91 MICHAPP 23] Recently, the Michigan Supreme Court held that an anonymous tip may be the basis for probable cause to make an arrest if the information in the tip is sufficiently corroborated by independent sources. People v. Walker, 401 Mich. 572, 259 N.W.2d 1 (1977). Since the tip in the instant case was not anonymous, Walker is readily distinguishable. However, the Supreme Court opinion also discussed the general test for determining the presence of probable cause when it is based solely on information supplied by an informant:

"The test for determining when probable cause may be established solely upon the basis of information from an informant or upon such information and corroborating facts has been developed in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In Aguilar, the United States Supreme Court held that probable cause for a warrantless arrest is established if the informant's tip meets two requirements: (1) 'some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were' must be disclosed, and (2) 'some of the underlying circumstances from which the officer concluded that the informant * * * was " credible" or his information "reliable" ' must be shown. 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723. This two-prong test was further developed in Spinelli, where the affiant swore that his informant was reliable, but gave the magistrate no grounds to support his conclusion.

"In regard to the first prong of the test, the Spinelli Court said that '(i)n the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail so that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation'. 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637. The Court in Spinelli found the detail provided by the [91 MICHAPP 24] informant in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), a 'suitable benchmark'. 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637. In Draper, the informant reported that the accused was selling narcotics and that he would return from Chicago by train on one of two days with narcotics. The informant also described Draper and his clothing and said that he would be carrying a tan zipper bag and that he habitually walked 'real fast'. As the Court explained in Spinelli, '(a) magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way'. 393 U.S. 410, 417, 89 S.Ct. 584, 589, 21 L.Ed.2d 637.

"Upon satisfying the first prong of the Aguilar test, it is then necessary to turn to the second prong, concerning the credibility or reliability of the informant himself. One recognized method of establishing the trustworthiness of the informant is a disclosure that the informant provided information on past occasions which...