People v. Levine

• Decision Date: 28 September 1999
• Docket Number: Docket No. 113000.
• Citation: 600 N.W.2d 622,461 Mich. 172
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Brian Eric LEVINE, Defendant-Appellee.
• Court: Michigan Supreme Court

600 N.W.2d 622

461 Mich. 172

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Brian Eric LEVINE, Defendant-Appellee.

Docket No. 113000.

Supreme Court of Michigan.

September 28, 1999.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Daniel L. Lemisch, Chief, Appellate Division, and Thomas R. Grden, Assistant Prosecuting Attorney, Pontiac, MI, for the people.

Miro, Weiner & Kramer, P.C. (by Matthew F. Leitman), Bloomfield Hills, MI, for the defendant-appellee.

Opinion

PER CURIAM.

The defendant was convicted in a bench trial of possession with intent to deliver marijuana. MCL 333.7401(2)(d)(iii); MSA 14.15(7401)(2)(d)(iii). The trial court sentenced him to two years probation. On appeal, the Court of Appeals ordered a supplemental evidentiary hearing on the defendant's motion to suppress evidence seized during the search of his car. We hold that a supplemental hearing is unnecessary. We thus vacate the opinion of the Court of Appeals and affirm the judgment of the circuit court.

I

This case arises from the search of the defendant's vehicle at about midnight on November 15, 1995, during which police seized marijuana and related paraphernalia from a black bag discovered in the trunk, and $320 from a door pocket. After speaking by telephone with an undercover police officer earlier that evening, Officer Shelly Turner began a surveillance of a residence on Clubhouse Lane in Farmington Hills. The undercover officer had advised her that several persons and a large quantity of marijuana would be present at the site that night. She was aware that the officer had received this tip from someone else, but she did not know the identity of the informant.

Before beginning the surveillance, Officer Turner verified through official records the names and addresses of those who the undercover officer related would be present at the Clubhouse Lane residence. The undercover officer had identified the defendant as one of two people who would leave the residence with a quantity of marijuana for later distribution. The officer did not describe the defendant, nor detail how or precisely when he would arrive at the site. Officer Turner, however, was acquainted with the defendant's name from previous tips during her four years with the department's surveillance and narcotics team.

Officer Turner arrived at the residence approximately forty-five minutes after speaking with the undercover officer. She observed seven cars in the driveway. Later, she watched as three of the vehicles departed and three other vehicles arrived during a fifteen or twenty minute period. After observing the cars leave at 10:30 or 11:00 p.m., Officer Turner met briefly with Michael Farley, a uniformed officer from Farmington Hills. She enlisted his assistance in the event that she determined to stop one of the vehicles.

After resuming her surveillance, Officer Turner observed a man wearing dark clothing emerge from the Clubhouse Lane residence, carrying a black bag by its strap. He put the black bag in the trunk of a car parked at the end of the driveway, and drove the car away. Officer Turner alerted Officer Farley and other uniformed officers by radio, and followed the vehicle northbound on Clubhouse Lane, toward Fourteen Mile Road.

Officer Turner testified that the car did not come to a complete stop before turning onto westbound Fourteen Mile. The driver then drove into a service station, but did not make a complete stop there, either, before driving back onto Fourteen Mile. Officer Turner requested that Officer Farley stop the defendant's vehicle, and, without jeopardizing the investigation, attempt to see the contents of the trunk. By this time, Officer Turner had confirmed that the vehicle was registered to someone who either resided at the defendant's address or had the same last name as the defendant.

Officer Farley effectuated the stop, and initially advised the defendant that he was looking for stolen telephones. The defendant denied that any such items or other contraband was in the trunk of his vehicle. He told Officer Farley that he had been at the home of a good friend with the surname "Hos." Officer Farley was aware that police had verified the name of the residents on Clubhouse Lane to be "Hoskins."

Officer Farley returned to his vehicle and asked Officer Turner to come to the scene. She arrived a short time later, about twenty-five minutes after defendant's vehicle was stopped. The police then searched the trunk of the defendant's vehicle and seized marijuana and related paraphernalia from a black bag. Officer Farley testified that the scent of fresh marijuana was evident once the trunk was opened.

II

Following testimony by Officer Turner and Officer Farley at the evidentiary hearing, the circuit court ordered the prosecution to obtain an affidavit from the undercover police officer who had spoken by telephone with Officer Turner. The court directed that the undercover officer use his real name in the affidavit, and explain his need for anonymity and the basis for his belief that his source of information was reliable. The undercover officer submitted the affidavit. The officer stated that for the last three years of his eight-and-a-half-year career, he had been working with the Drug Enforcement Administration of the United States Department of Justice, and had participated in at least one hundred drug investigations, utilizing numerous confidential informants and sources of information. The officer explained that, within seventy-two hours of the defendant's arrest, a confidential source had voluntarily told him about the drug-trafficking activities of the defendant and his associates. The source had named three persons, including the defendant, who would be at the house on Clubhouse Lane. The officer indicated that he had verified the addresses and ages provided. He also stated that the reliability of the information was bolstered by the fact that the officer had previous information that the persons with whom his source claimed to have had drug dealings were in fact involved in drug trafficking. Finally, the officer explained that he wanted to remain anonymous because the investigation was open and disclosure of his identity would jeopardize the operation and the identity of his confidential source.

The trial court denied the defendant's motion to produce the undercover officer for cross-examination, as well as his motion to suppress the evidence.¹

III

On appeal by the defendant, the Court of Appeals concluded that the trial court violated the defendant's right to confrontation ² by precluding him from cross-examining the undercover police officer regarding the existence of his confidential source and issues relating to the source's past reliability. 231 Mich.App. 213, 585 N.W.2d 770 (1998).

The Court determined that the error was not harmless because the trial court's finding of probable cause was in large part dependent on its finding that the confidential source was reliable. Emphasizing discrepancies between Officer Turner's observations and the details of the tip, the Court determined that Officer Turner's observations alone could not have supported a finding of probable cause.

IV

We agree with the prosecutor that the Court of Appeals erred in the instant case by focusing on the source of the tip that prompted Officer Turner's investigation and on the fact that the trial court requested an affidavit from the undercover officer. This was not an instance where police, acting only on a tip, obtained a warrant or conducted a search without a warrant. Under the circumstances of this case, the question is whether the tip as corroborated and supplemented by Officer Turner's further investigation provided sufficient probable cause.³

A

The Michigan Constitution protects against unreasonable searches and seizures, and further provides that no warrant shall issue without probable cause, supported by oath and affirmation.⁴ Const. 1963, art. 1, § 11. The Michigan provision is worded similarly to the Fourth Amendment of the United States Constitution.⁵ This Court has held that, absent compelling reasons, art. 1, § 11 provides the same protection as the Fourth Amendment. Sitz v. Dep't of State Police, 443Mich. 744, 758-759, 506 N.W.2d 209 (1993), People v. Faucett, 442 Mich. 153, 158, 499 N.W.2d 764 (1993),⁶ and People v. Smith, 420 Mich. 1, 20, 360 N.W.2d 841 (1984).

"The Fourth Amendment generally requires police to secure a warrant before conducting a search." Maryland v. Dyson, 527 ___ U.S. ___, 465, 119 S.Ct. 2013, 2014, ___ L.Ed.2d ___ (1999). See also People v. Davis, 442 Mich. 1, 10, 497 N.W.2d 910 (1993). An exception to the warrant requirement exists for searches of automobiles. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Faucett, supra at 171, n. 21, 499 N.W.2d 764. The exception applies only to searches supported by probable cause. Ross, supra at 809, 102 S.Ct. 2157. "In this class of cases, a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained." Id.

B

The United States Supreme Court has addressed on several occasions the question whether probable cause exists exclusively or primarily on the basis of a tip. In the 1960s, the Court developed a two-pronged test that required a determination that (1) the informant was credible or the report was reliable, and (2) there was a basis for the informant's knowledge, i.e., the particular means by which he came by the information. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), as explained and refined in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

In the early 1980s, the Supreme Court abandoned the Aguilar-Spinelli test in favor of a "totality...