People v. Hintz
| Decision Date | 23 June 1975 |
| Docket Number | No. 3,Docket No. 18845,3 |
| Citation | 62 Mich.App. 196,233 N.W.2d 228 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence Louis HINTZ, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Wilson & Stone by James E. Wilson, Midland, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward G. Durance, Pros. Atty., for plaintiff-appellee.
Before DANHOF, P.J., and BASHARA and ALLEN, JJ.
Defendant was found guilty in a bench trial of possession of cocaine, M.C.L.A. § 335.341(4)(b); M.S.A. § 18.1070(41)(4)(b), and appeals.
On October 17, 1972, detective John Lapp, Jr., learned from an informant that drugs were being sold at the apartment of one Marlene Killinger. A search warrant was obtained and the apartment raided. Defendant, who was visiting the apartment, was arrested on suspicion of violating the narcotics laws, and taken into custody. During an inventory search at the jail, a small packet, later determined to contain cocaine, was found on defendant's person.
Defendant and other persons arrested in the 'raid' were brought before a visiting district court judge for a preliminary examination. At that proceeding, the search warrant was invalidated because the affidavit attached to the warrant was not subscribed and sworn prior to the warrant being issued. It was later signed before an assistant prosecutor. The judge also found the warrant invalid because it did not contain a sufficient description of the apartment to be searches. 1 The court after making this finding did not consider the other issues raised. The hearing was adjourned and resumed at a later date before a regular Midland County District Judge.
Defendant challenges his conviction arguing that (1) since the search warrant was invalid, his arrest was illegal as not being supported by probable cause; (2) the illegal arrest tainted the subsequent inventory search; and (3) the prosecutor at trial did not establish a sufficient chain of custody of the evidence as to the cocaine.
The people argue that even though the search warrant was invalid, the officer had probable cause to arrest independent of the warrant because there was reasonable cause to believe a felony was being committed. 2 We believe we must analyze this contention, for if the people's argument prevails, defendant's first two issues raised on appeal will be without merit.
At the preliminary examination and at trial Officer Lapp testified that between 7:20 and 7:30 p.m. a reliable informant, who had given him verified information on at least two prior occasions, told him that he had just left the Killinger apartment and that heroin and marijuana were being sold and used. The informant then gave Detective Lapp a small packet. He performed a field test and found that it contained a controlled substance. The informant also told Lapp the names of some of the persons who were in the apartment. Lapp did not recall if the defendant's name was given but did recall the informant stated he purchased the small packet from one Mr. Bogel. Officer Lapp also learned from the informant that Bogel's girlfriend, Ms. Killinger, and a number of other persons, were possessing and using heroin and marijuana within the apartment. Lapp and other officers returned to the Killinger apartment at about 8:30 p.m. They knocked on the door, announced their identity and demanded admittance. There was no response. Again the police announced their presence at which time the officers heard running feet. They broke down the door and placed defendant and the others under arrest. 3
M.C.L.A. § 764.15(d); M.S.A. § 28.874(d), allows a police officer to arrest a person without a warrant when he has reasonable cause to believe a felony has been committed and reasonable cause to believe the arrested person committed it. If the people's theory is to prevail, both prongs of the statute must be satisfied. We must first determine whether there was probable cause to believe a felony was committed. The standards are fairly well defined. The officer at the moment of the arrest must possess facts and circumstances within his knowledge or trustworthy information from a reliable informant which would warrant a prudent man to believe a felony had been committed. Only where the informant's tip is the basis of the information and is factually inadequate, is independent police corroboration required. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); People v. Williams, 368 Mich. 494, 118 N.W.2d 391 (1962); People v. Wolfe, 5 Mich.App. 543, 147 N.W.2d 447 (1967).
In People v. Wilson, 8 Mich.App. 651, 155 N.W.2d 210 (1967), our Court in an opinion by Judge, now Justice, Fitzgerald, found that an arrest based solely on an anonymous informant's tip does not provide an officer with reasonable cause to act without a warrant. However, the Court concluded that if an officer has additional substantiating information, he may proceed to a lawful arrest.
We find that the police did not act on an unsubstantiated informant's tip. The informant on at least two prior occasions had given reliable information. In addition, Detective Lapp field tested the packet given him by the informant and after knocking on the apartment door he heard scurrying sounds. We believe, considering all the facts, Detective Lapp had reasonable cause to believe that a felony, the sale, use and possession of heroin, was being committed at the Killinger apartment.
We must now determine if these was reasonable cause to believe defendant committed a felony. Defense counsel has made much of the fact that Detective Lapp could not recall if the informant mentioned defendant as being present or one participating in the illegal activities. Defense counsel appears to contend that even if the police had probable cause to enter the apartment there was no probable cause to believe defendant committed a felony. Thus, defendant argues that the inventory proceeding was invalid.
The second requirement of M.C.L.A. § 764.15(d); M.S.A. § 28.874(d), is that a police officer arresting without a warrant have probable cause to believe defendant committed a felony. In analyzing this aspect of the question presented, we must determine whether defendant's presence at the Killinger apartment gave the officers probable cause.
Our Supreme Court in People v. Harper, 365 Mich. 494, 500, 113 N.W.2d 808, 811 (1962), in...
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