People v. Humphrey, Docket No. 85831

• Decision Date: 08 July 1986
• Docket Number: Docket No. 85831
• Citation: 389 N.W.2d 494,150 Mich.App. 806
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Clarence HUMPHREY, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Rosie E. FREEMAN, Defendant-Appellee. 150 Mich.App. 806, 389 N.W.2d 494
• Court: Court of Appeal of Michigan — District of US

Page 494

389 N.W.2d 494

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Clarence HUMPHREY, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Rosie E. FREEMAN, Defendant-Appellee.

Docket No. 85831.

150 Mich.App. 806, 389 N.W.2d 494

Court of Appeals of Michigan.

Submitted Feb. 18, 1986.

Decided April 9, 1986.

Released for Publication July 8, 1986.

[150 MICHAPP 808] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Deputy Chief, Civil and Appeals, and A. George Best II, Asst. Pros. Atty., for the People.

Cornelius Pitts, Detroit, for defendant-appellee Humphrey.

Seymour Floyd, Detroit, for defendant-appellee Freeman.

Before J.H. GILLIS, P.J., and T.M. BURNS and HOOD, ^* JJ.

PER CURIAM.

Defendants, Clarence Humphrey and Rosie E. Freeman, were arrested by officers of the Wayne County Sheriff's Department on October 12, 1984, during the course of the execution of a search warrant issued on October 11, 1984. After the arrests, defendant Humphrey was charged with possession of cocaine, M.C.L. Sec. 333.7403(2)(a)(i); M.S.A. Sec. 14.15(7403)(2)(a)(i), possession with intent to deliver heroin, M.C.L. Sec. 333.7401(2)(a)(ii); M.S.A. Sec. 14.15(7401)(2)(a)(ii), possession of heroin, M.C.L. Sec. 333.7403(2)(a)(iv); M.S.A. Sec. 14.15(7403)(2)(a)(iv), and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Both defendants were charged with conspiracy to violate[150 MICHAPP 809] the gambling laws, M.C.L. Sec. 750.301 and 750.157a; M.S.A. Sec. 28.533 and 28.354(1), and possession of gambling paraphernalia, M.C.L. Sec. 750.306; M.S.A. Sec. 28.538. After a preliminary examination was held, the defendants were bound over for trial on all counts.

Defendants subsequently brought a motion to quash the search warrant and suppress the evidence. Through an opinion and order dated June 18, 1985, the trial court granted the motion after concluding that the affidavit was insufficient to establish the reliability of the information. The prosecutor brought the instant appeal of the lower court's order as of right.

The Michigan Supreme Court recently clarified the requirements which must be met before a search warrant based upon an affidavit may be issued in this state. In People v. Sherbine, 421 Mich. 502, 364 N.W.2d 658 (1984), the Court construed M.C.L. Sec. 780.653; M.S.A. Sec. 28.1259(3) as setting forth three requirements, stated as follows:

"The first is that the affidavit, when based on informant-supplied information, must contain affirmative allegations that the informant spoke with personal knowledge. The second is that the affidavit must set forth facts from which one may conclude that the informant is 'credible.' * * * The third is that the information must be shown to be reliable. The Legislature has determined that probable cause is not established until all three requirements have been satisfied." 421 Mich. 509-510, 364 N.W.2d 658.

As stated earlier, the trial court found the third requirement lacking in the affidavit here at issue. The relevant portions of that affidavit provided:

"The affiant is a member of the Wayne County Federal Task Force and is working in conjunction with S/A [150 MICHAPP 810] Paul Lindsey of the F.B.I. relative to the trafficking of heroin and cocaine by a black male, who is known to a reliable informant of the F.B.I. as 'Big Daddy' and also as 'Track'. The affiant and S/A Lindsey have worked with this informant in the past and information from this informant has resulted in the arrest of more than five persons for violations of the Michigan Controlled Substance Act. Cocaine, heroin, firearms and narcotic proceeds have been confiscated as a result of the same information.

"This informant provided information to S/A Paul Lindsey which states that within the past 72 hours of the date of this search warrant this informant did observed [sic ] controlled substances inside of the named location. The informant states that the informant knows the powder to be heroin and that the informant has observed the transfer of heroin and cocaine by 'Big Daddy'. That 'Big Daddy' did obtain these controlled substances from inside the named location which is the home of 'Big Daddy'. The informant further states that 'Big Daddy' has stated to the informant that he is never out of dope. The informant states that 'Big Daddy' is a big numbers man and that proceeds from the numbers operation are stored at the named location.

"An investigation conducted by the affiant shows that a vehicle parked within the curtilage of the location to have Michigan plate 765-KPX, to: Rosie E. Freeman at 12703 Broadstreet, Detroit 48238.

"Based upon the information received by the affiant from S/A Paul Lindsey, it is believed that the information received from the informant is reliable and that the items named to be searched for are being stored inside of the named location, in violation of the Michigan Controlled Substance Act (Public Health Code)."

In finding the affidavit insufficient to fulfill the "information reliability" requirement of M.C.L. Sec. 780.653; M.S.A. Sec. 28.1259(3), the trial court relied upon the absence of certain factors. For example, while the affidavit indicated that a vehicle belonging to defendant Freeman was parked on the premises, the court characterized this information [150 MICHAPP 811] as irrelevant since it was not accompanied by an allegation that Freeman was an occupant or frequenter of the house. Next, the court complained of the absence of a physical description of "Big Daddy" or "Track" because this prevented the affiant from verifying the suspect's presence at the house. Finally, the court condemned the failure to note the observation of traffic to and from the house.

We do not agree that the deficiencies noted by the trial court compel the conclusion that the information was not reliable. As noted by the prosecutor, the most obvious flaw in the trial court's reasoning is that the affidavit refers to the "transfer", rather than sales, of narcotics, indicating that the house was not a street distribution point but a packaging and cutting center. Assuming this to be the case, there would not have been any foot traffic to and from the house for the affiant to observe. Further, the affiant could not be faulted for failing to conduct a controlled "buy" since the operators of a packaging and cutting center would not likely assume the obvious risks of engaging in street sales and offering individual purchases from the home. Regarding the failure to include a reference to Freeman's presence in the home, we consider such a detail to be so innocuous as to be of little help in assessing the reliability of the information.

While we do agree that a physical description of "Track" would have been of assistance, its absence is not determinative. Rather, the reliability of the information is sufficiently established by other factors, including the detail of the information supplied and the fact that the informant's knowledge that narcotics were on the premises and that the house was used for the transfer of narcotics was based upon the informant's personal observations. [150 MICHAPP 812] Another factor pointing to the likely reliability of the information is that this particular informant has provided information in the past which has been of assistance to the affiant in enforcing the Michigan controlled substance act. M.C.L. Sec. 333.7101 et seq.; M.S.A. Sec. 14.15(7101) et seq. We conclude that the trial court erred in finding that the "reliable information" requirement of the statute governing the contents of affidavits was not satisfied.

Although neither has filed a cross-appeal, defendants now argue that the trial court erred in finding the first two requirements under the statute satisfied. These arguments are patently meritless. Since the affidavit contains allegations that the informant observed both the presence of narcotics inside the place to be searched and the transfer of such narcotics, the affidavit clearly contains sufficient information to allow the conclusion that the informant's statements were based upon personal knowledge. The affidavit also contains...