People v. Moore

• Decision Date: 26 October 1989
• Docket Number: Docket Nos. 115690-
• Citation: 446 N.W.2d 834,180 Mich.App. 301
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eddie C. MOORE, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lester John GONDER, Ronald Brooks, Ken Paul Stone, Jackie Mannon and Marilyn Koole, Defendants-Appellants. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lester John GONDER, Defendant-Appellant. to 115692. 180 Mich.App. 301, 446 N.W.2d 834
• Court: Court of Appeal of Michigan — District of US

Page 834

446 N.W.2d 834

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eddie C. MOORE, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lester John GONDER, Ronald Brooks, Ken Paul Stone, Jackie

Mannon and Marilyn Koole, Defendants-Appellants.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lester John GONDER, Defendant-Appellant.

Docket Nos. 115690-to 115692.

180 Mich.App. 301, 446 N.W.2d 834

Court of Appeals of Michigan.

Submitted March 7, 1989.

Decided May 5, 1989.

Released for Publication Oct. 26, 1989.

[180 MICHAPP 304] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James J. Gregart, Pros. Atty., and Michael H. Dzialowski, Asst. Pros. Atty., for the People.

Before McDONALD, P.J., and GRIBBS and DOCTOROFF, JJ.

PER CURIAM.

This case returns to us on remand for further consideration from the Michigan Supreme Court, --- Mich. ----, 435 N.W.2d 406, --- Mich. ----, 435 N.W.2d 407, which vacated our judgment of July 13, 1988, People v. Gonder and People v. Moore, unpublished opinion per curiam of the Court of Appeals, decided July 13, 1988 (Docket Nos. 90986, 90999, and 91000). Two other defendants, originally involved in our earlier decision, did not appeal to the Supreme Court and, thus, are not included in this remand.

In these cases, defendants were charged with violations of the controlled substances act, M.C.L. Sec. 333.7101 et seq.; M.S.A. Sec. 14.15(7101) et seq., for delivery or possession of cocaine or marijuana. Following preliminary examinations, the district court judges dismissed these cases on the basis of the actions of the undercover private investigator who testified for the people. The cases were then consolidated for appeal to the circuit court. The people [180 MICHAPP 305] appealed to this Court by leave granted from the circuit court order affirming the district courts' orders dismissing the charges against defendants. We reversed.

On remand, we have been directed to reconsider our prior decision in light of the Supreme Court's determination that the private investigator, James Goodall, was an agent of the police. Upon reconsideration, we reverse in part and affirm in part.

At the separate district court preliminary examinations, Goodall was the only testifying witness. When these incidents occurred, Goodall was a salaried employee for an Ohio private investigation firm called Professional Law Enforcement, Inc. (PLE), which was hired by General Motors Corporation to investigate suspected drug activity of its employees. A former police officer, Goodall worked for PLE as an undercover narcotics investigator. However, neither he nor PLE was licensed in Michigan as required by the Private Detective License Act, M.C.L. Sec. 338.821 et seq.; M.S.A. Sec. 18.184(1) et seq.

In his role as an undercover investigator, Goodall secured a position as a vending machine technician with Szabo Foods, which serviced the GM plant. Prior to the commencement of his investigation into the drug activities of GM employees, Goodall had a conference with the chief of security at GM who supplied him with a list of names. Goodall did not remember if any of defendants' names were mentioned. Goodall also met with members of the Southwest Enforcement Team (SWET), which is a cooperative effort of area law enforcement officers who work under the supervision of the Michigan State Police and investigate drug trafficking in a multicounty area. The team included police from the Kalamazoo police department, the county sheriff's department and the [180 MICHAPP 306] Michigan State Police. Both SWET and GM officials gave Goodall money to purchase drugs.

Goodall's investigation lasted four months. In the course of his investigation, Goodall made many drug purchases. Some of these purchases occurred within the GM plant, while others occurred off plant premises and property. Some of these transactions occurred spontaneously and fortuitously. Often, in the course of consummating a drug purchase, Goodall did not know where he had been taken.

Goodall at times accepted delivery of drugs at his apartment in Kalamazoo, Michigan. He had his own set of scales which he used to weigh the drugs. He kept drugs secured in his apartment until he transferred them to a member of SWET.

On one occasion, Goodall took a minor female whom he was investigating to a local tavern to purchase beer for both of them. He testified that he did not know how old she was.

Goodall made no arrests during the course of his activities in Michigan. He stated that he worked in conjunction with SWET, which would occasionally provide surveillance and back-up personnel. He sent copies of his reports to SWET, but Goodall did not consider himself to be its agent and he was not subject to its authority. SWET had no control over his day-to-day activities and did not tell him who to investigate.

At the conclusion of the preliminary examination in Case No. 115691, the district court granted defendants' motions to suppress all of Goodall's testimony and dismissed the charges against them, finding that Goodall violated defendants' due process rights, acting in violation of the Private Detective License Act. The district court also found that defendants had been entrapped. In Case No. 115690, the district court dismissed the case, ruling [180 MICHAPP 307] that Goodall's activity was unlawful per se because he was not licensed in Michigan as a private detective. Additionally, the court ruled that Goodall was an agent of the police and, through his actions, violated defendant's due process rights. In Case No. 115692, the district court dismissed the case, adopting the decision it had rendered in Case No. 115690.

The circuit court affirmed the orders of the district courts which dismissed the cases against defendants Gonder, Mannon, Brooks, Stone and Koole (Case No. 115691), Moore (Case No. 115690), and Gonder (Case No. 115692). The circuit court determined that, although Goodall was not an agent of SWET, he had violated the Private Detective License Act as well as defendants' due process rights.

I

Each of the district courts' determinations that Goodall's activities were illegal and required dismissal of the charges was based in part on his violation of the Private Detective License Act, M.C.L. Sec. 338.823; M.S.A. Sec. 18.184(3). In our prior decision, we held that a violation of that statute does not require suppression of testimony or dismissal of the charges. The Legislature provided a specific punishment as set forth in the act. A violation of the Private Detective License Act is a misdemeanor punishable by ninety days imprisonment or a $1,000 fine or both. The statute does not provide that a person who violates its provisions is precluded from testifying in criminal proceedings. A statutory violation, especially where the statute provides its own remedy, does not require the application of the exclusionary rule, which is a rule directed only at official police misconduct. [180 MICHAPP 308] People v. Burdo, 56 Mich.App. 48, 51-52, 223 N.W.2d 358 (1974); Birkenshaw v. Detroit, 110 Mich.App. 500, 512-513, 313 N.W.2d 334 (1981).

Upon reconsideration, our decision on this issue remains the same. Application of the exclusionary rule or dismissal of charges is improper where the violation is statutory and not constitutional. Thus, insofar as the circuit court affirmed defendants' dismissals on the basis of Goodall's violation of the Private Detective License Act, the court erred.

Furthermore, upon reconsideration as ordered by the Supreme Court, we conclude that, as an agent of the police, the Private Detective License Act does not apply to Goodall. M.C.L. Sec. 338.824(b); M.S.A. Sec. 18.184(4)(b) states that the act shall not apply to an officer or employee of this state or a political subdivision thereof, while such officer or employee is engaged in the performance of his official duties. Thus, the Supreme Court's order on remand that Goodall was a police agent renders this issue moot.

II

Because we are reversing the circuit court's affirmation of the district courts' dismissals and remanding these cases back to the district courts so that the defendants may be bound over for trial, we find it necessary to consider that portion of the circuit court's order which held that the district court, when conducting a preliminary examination on a felony charge, does not have jurisdiction to hear and decide a defendant's claim of entrapment. We affirm that portion of the circuit court's order.

In Case No. 115691, the magistrate found that Goodall had entrapped the defendants. This was an abuse of the magistrate's discretion. The magistrate [180 MICHAPP 309] does not have jurisdiction to make a determination on a defendant's claim of entrapment. A claim of entrapment is resolved at a separate evidentiary hearing procedurally similar to what the bench and bar of this state have come to know as the Walker hearing. People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965). The defendant bears the burden of proving entrapment by a preponderance of the evidence. The trial judge's decision is subject to appellate review under the "clearly erroneous" standard. People v. D'Angelo, 401 Mich. 167, 177-178, 257 N.W.2d 655 (1977); People v. Owczarzak, 144 Mich.App. 65, 66, 372 N.W.2d 683 (1985), lv. den. 424 Mich. 882 (1986).

The purpose of a preliminary examination is to determine whether a crime has been committed and if there was probable cause to believe that the defendant committed it. M.C.L. Sec. 766.13; M.S.A. Sec. 28.931; People v. King, 412 Mich. 145, 312 N.W.2d 629 (1981). Probable cause does not require proof beyond a reasonable doubt, but there must be evidence from which each element of the charged crime can be inferred. People v. Hammond, 161 Mich.App. 719, 720-721, 411 N.W.2d 837 (1987). An examining magistrate may weigh the credibility of witnesses. People v. Coons, 158 Mich.App. 735, 738, 405...