People v. Orozco

• Decision Date: 29 March 1977
• Docket Number: Docket No. 26419
• Citation: 253 N.W.2d 786,74 Mich.App. 428
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Harold OROZCO, Defendant-Appellant. 74 Mich.App. 428, 253 N.W.2d 786
• Court: Court of Appeal of Michigan — District of US

Page 786

253 N.W.2d 786

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Harold OROZCO, Defendant-Appellant.

Docket No. 26419.

74 Mich.App. 428, 253 N.W.2d 786

Court of Appeals of Michigan.

March 29, 1977.

Released for Publication June 2, 1977.

[74 MICHAPP 430] Hooe & Posey by Lynn V. Hooe, Jr., Pontiac (Owen P. O'Neill, Detroit, of counsel), for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Counsel, Thomas S. Richards, Asst. Pros. Atty., Pontiac, for plaintiff-appellee.

Before BASHARA, P. J., and CAVANAGH and RILEY, JJ.

CAVANAGH, Judge.

The defendant appeals his bench trial conviction for possession of cocaine with intent to deliver. M.C.L.A. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b). We reverse because the principal evidence underlying the charge was unconstitutionally seized.

We adopt the statement of facts of the dissenting opinion with but one exception. We disagree with the dissent's assertion that our review of the evidence includes the trial testimony of Detective Parks. Defendant's timely motion to suppress was denied by the district court. When he moved to quash the information in the circuit court, the case was remanded for further testimony by Detective Lester. Upon completion of the district court hearing, the circuit court reviewed the district court record and denied the motion to quash. People v. Olajos, 397 Mich. 629, 246 N.W.2d 828 (1976), does not change the well established rule that appellate review of the circuit court's denial of a defendant's motion to quash the information is restricted to the evidence presented to the magistrate, regardless of the nature of evidence presented[74 MICHAPP 431] at trial. People v. Walker, 385 Mich. 565, 189 N.W.2d 234 (1971); People v. Hall, 375 Mich. 187, 134 N.W.2d 173 (1965); People v. White, 276 Mich. 29, 267 N.W. 777 (1936). ¹

While we agree that the only manner in which this search could be upheld would be as incident to an arrest, we cannot agree that the authorities had probable cause to arrest.

The informant's tip was the crux of the authorities' belief that a crime had been committed and that the defendant had participated in it. The cases from Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), through United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), lay down a double requirement for information from anonymous informants. There must be reason to conclude that the informant was credible and that his information was acquired in a reliable manner. Contrary to the dissenting opinion, we believe that this tip failed both requirements.

The only evidence on the district court record that the informant was a credible source was the police detective's statement, "(i)t worked out pretty good before, sir". There are no specifics whatsoever. It is only a translated version of "reliable source". ² While the informant may in fact have provided much reliable information in the past, the prosecutor failed to make the necessary showing.

[74 MICHAPP 432] Moreover, there is nothing in the tip, nor in Detective Parks' additional testimony at trial, to indicate that the information was gained in a reliable fashion. The corroborated details suggest that the informant may have seen the car and known of its destination, but none of these details indicate how the informant could forecast that the defendant made the trip to engage in a criminal transaction or more importantly, who the driver of the vehicle or defendant would be. ³ While corroboration of many physical details would lend credence to a tip that a suspect was carrying contraband, since it would infer that the informant had gained the information by personal observation, cf. People v. Chaney, 52 Mich.App. 474, 218 N.W.2d 121 (1973), lv. den., 390 Mich. 813 (1973), corroboration of physical detail does not infer that the informant learned of the suspect's criminal plans in a reliable manner. Indeed, the dissenting opinion admits that the part of the tip which remained uncorroborated was the only part of the tip which indicated that a criminal transaction was contemplated.

Nor did the observations of the police furnish sufficient other reason to arrest the defendant. Loading an automobile's trunk and driving away are as consistent with innocent departure as they are with transportation of contraband.

We find the facts in People v. Walker, 64 Mich.App. 138, 235 N.W.2d 85 (1975), lv. granted, 396 Mich. 812 (1976), indistinguishable, and agree with that result. The evidence should have been suppressed and the charge dismissed.

[74 MICHAPP 433] BASHARA, Presiding Judge.

I must respectfully dissent. The facts recited below shall, in the main, serve both the controlling and dissenting opinions.

Around 4 p. m. January 16, 1974, Detective Parks of the Genesee County Sheriff's Department phoned Detective Lester of the Oakland County Sheriff's Department to convey information received from an informant. At the preliminary examination Lester testified that he was advised of the following:

" * * * a white Buick, with a possible license number, I believe it was Charles CKM 340, coming from Saginaw to the Acosta home in Avon Township that I had knowledge of where it was located at, for the purpose of purchasing narcotics, either cocaine or marijuana."

Lester was also informed that the Buick was a "newer one", and that it would arrive "in the evening . . . or early morning hours".

Lester was familiar with the Acosta residence in Avon Township. He had previously arrested Arthur Acosta a block from the house. The Acosta home had also been under surveillance because Arthur Acosta was a suspect in a homicide. Furthermore, Lester had been supplied with a complete file on Arthur Acosta's drug dealings by various state and county narcotics intelligence units.

Police surveillance was placed on the Acosta residence. At 1 a. m. the following morning Lester was notified that a Buick fitting the description of that supplied by the informant was in the driveway of the Acosta residence.

At approximately 3 a. m. Officer Daniels, a member of the surveillance unit, drove past the Acosta home while moving to a new observation point. He [74 MICHAPP 434] saw a man standing at the rear of the Buick with the trunk open. Upon noticing the marked patrol car, the man closed the trunk, did an about-face, and walked into the house.

Lester arrived on the scene at 3:30 a. m. He ran a check through the Law Enforcement Identification Network which determined that the automobile was a 1973 Buick Riviera registered to the defendant, John Orozco of Saginaw.

At about 6 a. m. two people left in the Buick. According to Detective Lester, the automobile "went two blocks, made a left turn, backed back up, and returned to the house". Approximately five minutes later the automobile left again with two occupants.

Shortly thereafter the car was stopped. Officer Daniels observed a hash pipe lying on the console. ¹ Both occupants were searched. Thirty-four packets of cocaine were discovered on the appellant. The appellant was placed under arrest.

The appellant argues that the informant's tip was insufficient to establish probable cause for the search and arrest. The legality of the search depends upon the existence of probable cause to arrest at the time of the search. People v. Price, 69 Mich.App. 363, 366-367, 244 N.W.2d 363 (1976). When information from an informant constitutes a substantial basis for determining probable cause, the government is ordinarily required to establish (1) some of the underlying circumstances from which the police concluded the informant was credible or his information reliable, and (2) some [74 MICHAPP 435] of the underlying circumstances from which the informant drew his conclusion. Aguilar v. Texas, 378 U.S. 108, 114-115, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, reh. den., 386 U.S. 1042, 87 S.Ct. 1474, 18 L.Ed.2d 616 (1967); People v. Daniels, 60 Mich.App. 458, 464, 231 N.W.2d 386 (1975).

The initial consideration is directed to whether Detective Parks could conclude that his informant was credible. Parks testified at the preliminary examination as follows:

"THE COURT: Let me ask you a question. Where did you get your information from? Now I'm not saying names but just how did you receive it?

"A. Telephone. A telephone call, sir.

"THE COURT: Telephone call. And did you know your informant?

"A. Well, the person that called me didn't give me the name, no.

"THE COURT: Have you ever had any information from that particular informant before?

"A. Yes, sir.

"THE COURT: Has that information turned out to be believable?

"A. It worked out pretty good before, sir.

"THE COURT: Okay. I have no further questions.

"RECROSS EXAMINATION CONTINUING BY MR. HOOE (defense counsel):

"Q. I'm sorry. I'm a little bit confused. Did I understand you to say that the person who called did not give his name?

"A. No, sir.

"Q. Did you know who it was who called?

"A. I presumed.

"Q. You presumed but you didn't know?

[74 MICHAPP 436] "A. He never said his name so I just presumed it."

A reading of the transcript makes it readily apparent that Parks knew the identity of the informant. He acknowledged that he received information from this source which "worked out pretty good" in the past. This is sufficient. See People v. Budary, 22 Mich.App. 485, 492-493, 177 N.W.2d 672 (1970). Compare Beck v. Ohio, 379 U.S. 89, 93-94, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). ²

I attach no significance in this instance to the fact that the informant was not specifically identified to the detective. This is not unusual. The relationship between an informant and a police [74 MICHAPP 437] contact is often built upon the informant's trust that identity will not be disclosed. An informant phoning a police officer would most likely prefer...