People v. Moore, Docket No. 25875

• Decision Date: 02 February 1977
• Docket Number: Docket No. 25875
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Lowell MOORE, Defendant-Appellant. 73 Mich.App. 514, 252 N.W.2d 507
• Court: Court of Appeal of Michigan — District of US

Page 507

252 N.W.2d 507

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Lowell MOORE, Defendant-Appellant.

Docket No. 25875.

73 Mich.App. 514, 252 N.W.2d 507

Court of Appeals of Michigan.

Feb. 2, 1977.

Released for Publication April 27, 1977.

[73 MICHAPP 515] Hampton, Snavely, Ranno, Lightbody & Girard by Larry A. Girard, Bloomfield Hills, for defendant-appellant.

[73 MICHAPP 514] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief [73 MICHAPP 515] Appellate Counsel, Asst. Pros. Atty., by Thomas S. Richards, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and KELLY and D. E. HOLBROOK, Jr., JJ.

DANHOF, Chief Judge.

The defendant was convicted of delivery of a controlled substance, phencyclidine, in violation of M.C.L.A. § 335.341(1)(b); M.S.A. § 18.1070(41) (1)(b). He was sentenced to serve a term of imprisonment from one to seven years and appeals as of right.

Before trial, defendant timely raised the issue of whether police conduct in the investigation of this case amounted to entrapment as a matter of law. The trial court ruled that it did not and the defendant was obliged to stand trial on the merits. Defendant now seeks review of the trial court's findings in the matter of entrapment.

Precisely, the issue is: If in the course of investigating or apprehending a criminal defendant, a police officer's actions amount to the commission of a crime, under the objective test of entrapment set forth in People v. Turner, ¹ has the defense of entrapment necessarily been established as a matter of law? We conclude that the answer is "no".

The salient facts are not in dispute. On January 7, 1975, police officer Robert Blank was first introduced to the defendant at the defendant's home. Blank recounted what happened at trial:

"Q. (By Mr. Corbett, Assistant Prosecuting Attorney ) And for what purpose did you go to Mr. Moore's house on January the 7th, 1975 [73 MICHAPP 516] "A. (Officer Blank ) We were to buy some hash oil.

"Q. And what, if anything, transpired between you and Mr. Moore, after you entered the home on January 7, 1975?

"A. We came in, sat down in the living room. Mr. Moore produced a small glass tube with a brown sticky substance in the bottom of it.

"Q. Had you ever seen an item like this before?

"A. I had never seen what is referred to as a hash oil pipe.

"Q. Did you have occasion to inquire of Mr. Moore as to what this item was?

"A. Yes, I asked him. I had never seen it before. I had told him the other times, it had just been spread over a joint, or something like that. I had never seen a pipe like this before.

"Q. What, if anything, did Mr. Moore say to you when you informed him you had never seen a device like it before?

"A. He showed me how to use it, put it in my mouth and took a lighter and lit the bottom bowl, of the pipe which caused the oil to light up, and smoke.

"Q. What, if anything, did you do after he lit the bottom bowl?

"A. I then passed the pipe to some other person there.

"Q. Did you have occasion to inhale the contents that came through the tubing?

"A. Yes, I did.

"Q. To whom did you pass the pipe?

"A. I believe I passed it to Patrolman Gidner.

"Q. What, if anything, did Patrolman Gidner do that you observed?

"A. I believe he passed it to another person that was there, I'm not exactly sure. There was (sic ) two people in and out of that room, at that time, either Mr. Moore's roommate or Mr. Moore's roommate's girlfriend.

"Q. Did you have occasion to see what Officer Gidner did?

[73 MICHAPP 517] "A. I believe he smoked it while Mr. Moore was there."

Having gained the defendant's confidence at this first meeting, Blank arranged to purchase, on January 10th, some "hash oil" and 1,000 tablets which proved to be phencyclidine when tested. The defendant was then arrested and charged.

The knowing and unauthorized use of a controlled substance is a criminal offense in this state. M.C.L.A. § 335.341(5); M.S.A. § 18.1070(41)(5). Defendant argues such actions cannot be tolerated, that they are repugnant to the State and to the objective test of entrapment adopted in Turner, supra.

Turner, however, does not stand for the proposition that in every instance where a police officer acts in an unlawful manner, the criminal must be freed. The sanction is imposed only where police conduct " 'is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it' ". (Citation omitted.) (Emphasis added.) Turner,supra, at 21, 210 N.W.2d at 342....