People v. Meyer

• Decision Date: 30 December 1985
• Docket Number: Docket No. 73672
• Citation: 424 Mich. 143,379 N.W.2d 59
• Parties: PEOPLE of the State of Michigan, Plaintiff, v. Paul Edward MEYER, Defendant.
• Court: Michigan Supreme Court

Page 59

379 N.W.2d 59

424 Mich. 143

PEOPLE of the State of Michigan, Plaintiff, v. Paul Edward MEYER, Defendant.

Docket No. 73672.

Supreme Court of Michigan.

Argued June 4, 1985.

Decided Dec. 30, 1985.

James J. Gregart, Pros. Atty., Michael H. Dzialowski, Principal Appellate Atty., Frank J. Machnik, Asst. Pros. Atty., Kalamazoo, for plaintiff.

Joseph J. Jerkins, James E. Vander Roest, Kalamazoo, for defendant.

RYAN, Justice.

The circuit court dismissed this narcotics possession case against the defendant because the undercover police officer to whom the defendant sold the narcotics made the purchase outside his bailiwick. The Court of Appeals affirmed, and we granted leave to appeal.

We reverse.

I

Defendant, Paul Edward Meyer, was charged in a two-count complaint with the manufacture, delivery, or possession with intent to manufacture or deliver less than fifty grams of cocaine, ¹ and with conspiracy to commit that crime. ² After a preliminary examination, held on May 6, 1982, defendant was bound over to the Kalamazoo Circuit Court for trial on the possession count only. The district judge dismissed the conspiracy charge, declaring that "there has not been sufficient facts here to establish a conspiracy." That charge, therefore, is not before us.

On June 25, 1982, defendant filed in the circuit court a motion for hearing on the defense of entrapment, pursuant to People v. Turner. ³ While testimony was being heard in support of the motion, the trial judge, sua sponte, found that the undercover officer had purchased cocaine from the defendant outside the officer's bailiwick, and that the officer's action was without any legal authority or power as a law enforcement agent. Concluding that the officer's actions were "tainted with illegality," the court dismissed the case against the defendant. On appeal, a majority of the Court of Appeals affirmed. 131 Mich.App. 812, 346 N.W.2d 878 (1984). We granted leave to appeal, 419 Mich. 923 (1984). ⁴

A

The facts of the case are taken from the record of the Turner hearing held on August 3, 1982, at which the undercover officer, Dale Carpenter of the Kalamazoo Police Department, was the sole witness.

In October of 1981, Officer Carpenter was working in a "plain clothes capacity" with the Special Investigations Unit (SIU) of the Kalamazoo Police Department. His duties included the investigation of suspected controlled substances offenses. At approximately 6:45 p.m. on October 21, 1981, Carpenter telephoned the defendant's girlfriend, Regina Blett, and told Ms. Blett that he was in the market for a gram of cocaine. Ms. Blett informed Carpenter that the defendant would call him back. At approximately 8:30 p.m., defendant called Carpenter and told him that he could purchase a gram of cocaine and, in order to do so, Carpenter was to come to defendant's apartment at 9:30 p.m. Carpenter drove to defendant's apartment at 1710 G Avenue in the City of Parchment. Upon arriving at defendant's apartment, Carpenter handed defendant $105. Defendant left and was gone for approximately twenty minutes, after which he returned and handed Carpenter a packet of suspected cocaine.

There is no indication in the transcript of the Turner hearing that there was any further contact between Carpenter and defendant. The incident was alleged to have occurred on October 21, 1981. Officer Carpenter signed a felony complaint against the defendant on March 17, 1982, and the defendant was arrested on March 18, 1982.

Carpenter testified that although he had some prior contact with both Ms. Blett and defendant, to the best of his knowledge, neither Ms. Blett nor defendant knew he was a policeman. On cross-examination, Carpenter testified that he had seen the defendant on two occasions prior to the October 21, 1981, incident. On those two prior occasions, Carpenter met defendant at 1137 Douglas Street in Kalamazoo. Defendant's counsel brought out the fact that Ms. Blett was the subject of an investigation by the SIU and, that on September 28 or 29, Carpenter had purchased a small quantity of LSD from Ms. Blett.

The first contact Carpenter had with defendant was on September 28, 1981, at which time defendant was a witness to the delivery of LSD to Carpenter by Ms. Blett at the Kalamazoo Douglas Street address. On either the 29th or 30th of September, Carpenter again went to the same address and purchased an ounce of marijuana from defendant, ⁵ and two hundred "hits" of LSD from a Robert Baldwin. Carpenter acknowledged that his main reason for going to the Kalamazoo address was to meet Baldwin and obtain LSD.

Before Officer Carpenter's testimony was concluded, the trial court, sua sponte, raised the question of Carpenter's authority to act in the City of Parchment. In response to questioning by the court, Carpenter acknowledged that at the time of the transaction with defendant he was not working in conjunction with the Parchment Police Department or any law enforcement agency having county-wide jurisdiction. In response to the prosecutor's questions, Carpenter stated that, although he had not had any contact with the Parchment Police Department, he thought his sergeant had. It was later established that neither the sergeant nor any other Kalamazoo Police Department official had made contact with the Parchment Police Department regarding this case.

The trial court ruled that when Officer Carpenter was in Parchment he was operating outside his bailiwick, without the cooperation of local authorities or the State Police, and that he was, therefore, functioning without authority under M.C.L. Sec. 764.2a; M.S.A. Sec. 28.861(1). ⁶ The court held that because the officer was acting without authority, his actions were "tainted with illegality," and that this illegality "taint[ed] all further proceedings" against the defendant. The court, therefore, ordered the case dismissed. ⁷

B

The prosecutor appealed, and a divided Court of Appeals affirmed. 131 Mich.App. 812, 346 N.W.2d 878 (1984). The majority concluded that since Officer Carpenter was not working in conjunction with the Parchment Police Department or the State Police so as to authorize his actions pursuant to M.C.L. Sec. 764.2a; M.S.A. Sec. 28.861(1), and since his activities were not within the "hot pursuit" exception of M.C.L. Sec. 117.34; M.S.A. Sec. 5.2114, the officer did not have authority to engage in an "illegal drug transaction" and his actions tainted the law enforcement process. The Court stated:

"We find Officer Carpenter's drug purchase from defendant without having statutory authority to do so is analagous to entrapment activities by police officers, for which the remedy is dismissal of charges against the defendant, People v D'Angelo, 401 Mich 167, 179; 257 NW2d 655 (1977). Like entrapment, Officer Carpenter's engagement in an illegal drug transaction without statutory authority tainted the law enforcement process; and, in order to deter such police misconduct and to protect the integrity of the judicial process, dismissal of the charge against defendant which arose out of that unauthorized police activity is warranted. See People v D'Angelo, supra, pp 174, 179." 131 Mich.App. at 818-819, 346 N.W.2d 878.

Judge Gillis dissented, finding that nothing in the statute affected the officer's ability to swear to the factual allegations in the complaint, and that Officer Carpenter did not need the authority of any statute in order to testify before a magistrate as to the question of probable cause. The judge added:

"Whatever criminal prosecution or disciplinary measures Officer Carpenter may have exposed himself to by his actions in his investigation of the instant case, defendant should gain no benefit by this exposure." 131 Mich.App. at 820, 346 N.W.2d 878.

We granted leave to appeal.

II

A

We begin our analysis with the statute in question:

"Sec. 2a. A peace officer of a county, city, village, or township of this state may exercise authority and powers outside his own county, city, village, or township, when he is enforcing the laws of this state in conjunction with the Michigan state police, or in conjunction with a peace officer of the county, city, village, or township in which he may be, the same as if he were in his own county, city, village, or township." M.C.L. Sec. 764.2a; M.S.A. Sec. 28.861(1).

The plain words of the statute mean that Officer Carpenter, as a Kalamazoo police officer, could not exercise "authority and power" outside the City of Kalamazoo unless he was "enforcing the laws of this state in conjunction with" a peace officer affiliated with a police agency having jurisdiction in the City of Parchment, such as the Michigan State Police, the Kalamazoo Sheriff's Department or officers of the City of Parchment, or unless the statutory hot pursuit exception was applicable. ⁸

It may be useful to observe what is not in issue in this case. The prosecutor concedes that Officer Carpenter was not acting in accordance with the hot pursuit statute.

"It is undisputed that Officer Carpenter was not acting pursuant to the above statute.... It is accurate to describe Officer Carpenter's activity as unauthorized." (Plaintiff's Brief, p. 2).

The parties are in agreement that the entrapment hearing below was never completed and that there was never any ruling by the trial judge on that issue. In addition, although this Court's order granting leave to appeal specified that the parties were to brief the issue "[w]hether the trial court erred in suppressing evidence" obtained by a police officer in an extra-territorial investigation, see n. 4, the parties agree that suppression of the evidence is not an issue in this case because the trial judge did not suppress the evidence, he dismissed the case.

The issue, correctly framed, is whether the trial court erred in dismissing the criminal charge against the defendant because Officer Carpenter was acting in the City of Parchment, as it is now conceded, without the "power...