People v. Meyer, Docket No. 67347
| Citation | 346 N.W.2d 878,131 Mich.App. 812 |
| Decision Date | 16 March 1984 |
| Docket Number | Docket No. 67347 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Paul Edward MEYER, Defendant-Appellee. 131 Mich.App. 812, 346 N.W.2d 878 |
| Court | Court of Appeal of Michigan (US) |
[131 MICHAPP 814] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James J. Gregart, Pros. Atty., and Robert E.L. Wright, Asst. Pros. Atty., for the People.
James E. Vander Roest, Kalamazoo, for defendant-appellee.
Before MacKENZIE, P.J., and GILLIS and MEGARGLE *, JJ.
The prosecutor appeals as of right from the trial court's order dismissing the charge against defendant of delivery of less than 50 grams of a mixture containing a controlled substance, cocaine, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv). The alleged offense occurred [131 MICHAPP 815] on or about October 21, 1981, in the City of Parchment, Michigan. Prior to trial, defendant moved for a hearing on his defense of entrapment pursuant to People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973). The facts adduced at the hearing were as follows:
In September and October, 1971, Dale Carpenter, a Kalamazoo City Police Officer and the complainant herein, was working undercover in the investigation of controlled substance offenses. The investigation had focused on defendant's girlfriend, among others. Carpenter met defendant's girlfriend for the first time on September 28, 1981. On that day, Carpenter went to the residence she shared with defendant in Kalamazoo and purchased from her a small amount of LSD. Defendant witnessed this transaction. On the following day, Carpenter returned to the Kalamazoo residence to purchase some LSD from another acquaintance of defendant. While there, Carpenter purchased one ounce of marijuana from defendant.
Sometime before October 21, 1983, defendant and his girlfriend moved from the City of Kalamazoo to the City of Parchment, Michigan. At approximately 6:45 p.m. on October 21, 1981, Carpenter called defendant's girlfriend in reference to purchasing some cocaine. About 8:30 p.m. that same night, defendant called Carpenter and advised Carpenter that he could purchase a gram of cocaine from him. Carpenter then drove to defendant's Parchment apartment and gave defendant $105. Defendant left the apartment and later returned with a packet suspected to contain cocaine, which he gave to Carpenter. Defendant was not arrested until several months later in March of 1982.
The trial court questioned Carpenter regarding [131 MICHAPP 816] his authority to operate in the City of Parchment. It is undisputed that the undercover operations were not in conjunction with the Parchment Police Department, the Kalamazoo County Sheriff's Department, or the Michigan State Police. The trial judge stated that he was not aware of any authority permitting an officer to operate outside his jurisdiction when such operation is not in conjunction with another law enforcement agency. The trial judge concluded that the actions of Officer Carpenter were without legal sanction and sua sponte dismissed the complaint against defendant.
Under M.C.L. Sec. 764.2a; M.S.A. Sec. 28.861(1):
"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."
While admitting that Officer Carpenter's undercover purchase of cocaine from defendant in Parchment was not in conjunction with or authorized by any other law enforcement agency as required by the above statute, the prosecution relies on the "hot pursuit" exception found in M.C.L Sec. 117.34; M.S.A. Sec. 5.2114, which provides as follows:
"When any person has committed or is suspected of having committed any crime or misdemeanor within a city, or has escaped from any city prison, the police officers of the city shall have the same right to pursue, arrest and detain such person without the city limits as the sheriff of the county."
[131 MICHAPP 817] We find this statute inapplicable to the facts of the present case. When Officer Carpenter entered the City of Parchment, he did not do so in order to arrest defendant for any crime defendant had or was suspected of having committed. Rather, the offense with which defendant was charged had not yet occurred. Also, the fact that approximately one month earlier defendant had allegedly sold marijuana to Carpenter in Kalamazoo was not the reason for Carpenter's entry into Parchment, as evidenced by the fact that Carpenter did not arrest defendant for this alleged sale of marijuana.
The prosecution next argues that, even if Officer Carpenter were acting outside his statutory authority as a police officer, dismissal was not the proper remedy because Carpenter still has the statutory authority as a citizen to swear to the factual allegations of the complaint against defendant and to testify at defendant's preliminary examination to support a finding of probable cause. M.C.L. Sec. 764.1a; M.S.A. Sec. 28.860(1); M.C.L. Sec. 766.13; M.S.A. Sec. 28.931. However, the flaw in this argument is that it overlooks the fact that the sole basis on which Carpenter might act as the complaining witness is his undercover drug purchase from defendant, and Carpenter had neither authority as a police officer nor as a private citizen to engage in this illegal drug transaction.
The prosecution also relies on People v. Bashans, 80 Mich.App. 702, 265 N.W.2d 170 (1978), and People v. Burdo, 56 Mich.App. 48, 223 N.W.2d 358 (1974), in support of its assertion that the court erred in dismissing the charge against defendant. However, those cases are distinguishable. In Bashans, supra, 80 Mich.App. pp. 712-713, 265 N.W.2d 170, this Court held that even though the police officers in arresting the defendant in another jurisdiction were acting outside [131 MICHAPP 818] their police authority under M.C.L. Sec. 764.2a; M.S.A. Sec. 28.861(1) the arrest, nevertheless, was not unlawful because the officers had statutory authority as citizens to arrest the defendant under M.C.L. Sec. 764.16; M.S.A. Sec. 28.875. In the present case, the question is not whether Officer Carpenter had authority to arrest defendant (indeed, defendant's arrest did not occur in Parchment), but rather whether he had authority to engage in the drug transaction which formed the basis of the offense charged against defendant. We have already determined that Carpenter did not have such authority as a...
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People v. Meyer
...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). The facts of the case are taken from the record of the Turner hearing held on ......