People v. Morris

• Decision Date: 07 January 1976
• Docket Number: Docket No. 22325
• Citation: 66 Mich.App. 514,239 N.W.2d 649
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Patrick MORRIS, Defendant-Appellee. 66 Mich.App. 514, 239 N.W.2d 649
• Court: Court of Appeal of Michigan — District of US

Page 649

239 N.W.2d 649

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Patrick MORRIS, Defendant-Appellee.

Docket No. 22325.

66 Mich.App. 514, 239 N.W.2d 649

Court of Appeals of Michigan.

Jan. 7, 1976.

Released for Publication March 23, 1976.

[66 MICHAPP 515] Marshall C. Hill, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, App. Chief, for defendant-appellee.

Before DANHOF, P.J., and McGREGOR and KAUFMAN, JJ.

KAUFMAN, Judge.

Defendant was charged in an information with carrying a concealed weapon, M.C.L.A. § 750.227; M.S.A. § 28.424, and unlawful possession of a controlled substance, heroin, M.C.L.A. [66 MICHAPP 516] § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a). Pursuant to a defense motion, the Detroit Recorder's Court quashed the information. From this action, plaintiff appeals.

This action was initiated when police obtained a search warrant on August 8, 1974, for a house located at 1745 Forest Street, Apartment 304, for the purpose of searching for narcotics. Upon arriving at the apartment to execute the warrant, the officers entered the apartment without knocking or otherwise announcing their identities since the apartment door was 'wide open'. Upon entering, they saw defendant standing in front of what they believed to be narcotics paraphernalia--hypodermic needles, cooking caps, syringes-- on the floor and table. Defendant was immediately placed under arrest for loitering in a place where narcotics are sold or stored.

Officer Brzezinski then searched defendant for offensive weapons and found under his shirt in the 'rear of his back' a small pistol which was loaded. Defendant was then advised that he was being placed under arrest for carrying a concealed weapon. Upon a further search of defendant's person, a brown coin envelope which the police believed to contain heroin was discovered in defendant's right front pant pocket. Defendant was then advised that he was also being charged with unlawful possession of a controlled substance.

Defendant's theory at a pretrial suppression hearing was that there was '* * * no investigation that indicates that defendant did loiter, according to the conclusion of the officers, which gave rise to the arrest of this defendant for an ordinance violation'. Moreover, '* * * there would seem to be no law in Michigan authorizing the search of individuals found on the premises [66 MICHAPP 517] where not otherwise identified from a search warrant * * *'.

The court asked for briefs of counsel concerning the definition of 'loitering' and relating to the scope of a search warrant. The prosecutor noted that he could 'save us all some time' and referred the court to Words and Phrases. At this point, the court quashed the information. It stated:

'The Court rules that the defendant was not loitering on the premises. Therefore, the arrest was illegal.'

Plaintiff makes three arguments to support its contention that the trial court's quashing of plaintiff's information was error. We find one of these to be meritorious and address ourselves solely to it. We find, as plaintiff contends, that there was probable cause to arrest defendant and that the search of defendant was legitimate inasmuch as it was incident to this arrest.

An examining magistrate may bind a defendant over for trial only if he determines that an offense has been committed and that there is probable cause to believe that defendant committed it. M.C.L.A. § 766.13; M.S.A. § 28.931; People v. Stinson, 58 Mich.App. 243, 259; 227 N.W.2d 303 (1975), Lv. den., 394 Mich. 761 (1975). In the instant case, the trial court dismissed the charges because it held that the evidence supporting those charges was seized as the result of an illegal, warrantless arrest.

A warrantless arrest is valid if, at the moment of arrest, the facts and circumstances within the knowledge of police were sufficient to lead a reasonable person to conclude that defendant was committing a misdemeanor in his presence. M.C.L.A. § 764.15; M.S.A. § 28.874; People v. Davenport, 46 Mich.App. 579, 208 N.W.2d 562 (1973).

[66 MICHAPP 518] Defendant was arrested under § 28--8--8 of the Detroit Municipal Code which provides:

'No person shall knowingly loiter about, frequent or live in any building, apartment, store, automobile, boat, boathouse, aeroplane or other place of any description whatsoever where narcotic drugs, hypodermic syringes, needles or other instruments or implements or empty gelatin capsules are sold, dispensed, furnished, given away, stored or kept illegally.' Ch. 187, § 9, City (Detroit) Ordinances (1954).

The material elements of the offense are:

'(1) loitering, (2) in a place where narcotic drugs or narcotic paraphernalia are illegally sold, dispensed, furnished, given away, or stored, and (3) that the defendant, when loitering in such place, knew that the narcotic paraphernalia were illegally stored or kept there.' Detroit v. Hodges, 13 Mich.App. 531, 534, 164 N.W.2d 781, 782 (1968).

Probable cause as to the latter two elements is supplied by the fact that defendant was standing next to the table on which articles commonly used for the preparation and injection of heroin were plainly displayed. The police could reasonably believe that defendant was aware of the identity, purpose and presence of these items.

Our concern, and that of the trial court, is whether there was reasonable cause to believe that defendant was 'loitering'. Loitering is generally defined as being dilatory, standing idly, lingering, or delaying. See E.g. Detroit v. Wedlow, 17 Mich.App. 134, 169 N.W.2d 145 (1969); Black's Law Dictionary (4th ed.), p. 1092. While applicable to on-the-street situations, these definitions are not relevant here.

The wording of the ordinance and interpretation [66 MICHAPP 519] in Detroit v. Hodges, supra, indicate that 'loitering', in this...