People v. Peterson

• Decision Date: 25 August 1975
• Docket Number: Docket No. 19187
• Citation: 234 N.W.2d 692,63 Mich.App. 538
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Ned PETERSON, Defendant-Appellant. 63 Mich.App. 538, 234 N.W.2d 692
• Court: Court of Appeal of Michigan — District of US

Page 692

234 N.W.2d 692

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Ned PETERSON, Defendant-Appellant.

Docket No. 19187.

63 Mich.App. 538, 234 N.W.2d 692

Court of Appeals of Michigan.

Aug. 25, 1975.

Released for Publication Nov. 10, 1975.

[63 MICHAPP 540] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Tony I. Marcinkewciz, Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, P.J., and BRONSON and KELLY, JJ.

KELLY, Judge.

Defendant-appellant, Robert Ned Peterson, appeals by right from his November 6, [63 MICHAPP 541] 1973 conviction for possession of marijuana with intent to deliver, M.C.L.A. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c). A sentence of 30 days in jail and two years' probation was imposed on November 13, 1973 and stayed by the trial judge pending the outcome of this appeal.

Three issues are raised for our consideration: the legality of the search and seizure, the application of the 'two-ounce presumption' and the sufficiency of the evidence. All will be discussed.

I

The house in which Peterson then resided was searched by Escanaba and Michigan State Police officers during the early morning of April 25, 1973. A quantity of what appeared to be marijuana was seized and Peterson, among others, was arrested.

The search was conducted pursuant to a warrant issued on the basis of the following affidavit:

'On April 24, 1973 I have been informed by two apparently reliable anonymous citizens that in the above residence of one Kevin Johnson there is secreted a quantity of what was described as marijuana, and was given a sample of the substance described to me as being a part of that substance and I performed a chemical field test of the substance and the result of said chemical test showed the presence of marijuana a controlled substance.

'Based upon their actual observation, and description of the substance in the residence and the sample delivered to me and the results of the aforesaid test, I am of the opinion probable cause exists to believe a violation of the Controlled Substance Act of (1971) 1972 has and is now occurring and that the aforesaid residence is used as a 'stach' for the aforesaid controlled substance.

'The informants described the material as bagged in plastic baggies and was of a green leafy nature and [63 MICHAPP 542] described as nickle bags and had actually seen said materials within forty-eight hours from above date.'

All of the real evidence introduced against Peterson at trial was obtained as a result of the search of his residence. He moved to suppress this evidence prior to trial, arguing that the search warrant was constitutionally defective. The validity of the search warrant depends on the sufficiency of the affidavit in support of its issuance.

Defendant suggests that prior dealings between the affiant and informant are necessary. If this were true, then every informant whose anonymity is protected would have his first case thrown out. In fact, the law is otherwise:

'While a history of prior dealings between an informant and the police can be an important element in establishing the reliability of the informant, the absence of such a history does not of itself prove the informant unreliable. The magistrate is entitled to look to the underlying circumstances, including those portions of the information independently verified by police, and to other factors supporting the probable truthfulness of the information.' United States v. Wong, 470 F.2d 129, 131 (CA 9, 1972).

The crucial test is stated in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). That case requires, in the disjunctive, that the magistrate be furnished facts from which the officer 'concluded that the informant * * * was 'credible' Or his information 'reliable". (Citation omitted.) In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the U.S. Supreme Court noted that:

'In testing the sufficiency of probable cause for an officer's action even without a warrant, we have held [63 MICHAPP 543] that he may rely upon information received through an informant, rather than upon his direct observations, So long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge.' 362 U.S. at 269, 80 S.Ct. at 735. (Emphasis supplied.)

Defendant makes much of the fact that the affidavit refers to 'apparently reliable anonymous citizens'. As Judge Bronson points out, this phrase taken alone does not meet the Aguilar requirement of adequate facts for the magistrate to pass on the informant's credibility. However, that is not the sole question, for constitutional muster is passed if the affidavit recites sufficient facts for a magistrate to conclude that the information was reliable. Aguilar v. Texas, supra. And, pursuant to Jones v. United States, supra, it is appropriate to look at the contents of the affidavit beyond the words 'apparently reliable anonymous citizens' to see whether there is evidence 'reasonably corroborat(ing)' the informant. In so doing, it should be kept in mind that '(t)he rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating * * * often opposing interests'. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 226, 13 L.Ed.2d 142 (1964), quoting Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). It should also be apparent that the reliability that Judge Bronson finds wanting is a requirement designed to protect against knowingly false or inadvertently erroneous information given by the informant to the officer.

In this case the incriminating information came from two citizens. Such information is perhaps more likely to be reliable than information which depends solely on the veracity of one person. The description of the substance appears to coincide [63 MICHAPP 544] with the experienced officer's knowledge of the appearance of marijuana. It is fair to infer that the informants knew marijuana when they saw it. Therefore, the affiant and magistrate could discount the possibility that the informants had mistakenly identified a licit substance as marijuana. The officer's field test verified that the substance was marijuana--the informants were proven truthful in that particular. Also, the act of turning over marijuana to the police could itself be considered a reliability credential. If the search of defendant's premises had proved fruitless, undesired attention might have focused on the informants themselves. It is one thing for an informant to tell an officer that there is an illegal substance at such and such a place and it is another for the informant to produce a sample. The sample makes the story more convincing.

In the context of this case, the dangers Aguilar seeks to protect against are satisfied. Otherwise we are straining to protect against the vague possibility that two citizens delivered an illicit substance from an unknown source to a police officer to falsely incriminate the defendant. That would be a serious crime committed openly. Considering the facts related to the magistrate, I am inclined to find this probability less than the probability that the information given was accurate in material part. To be sure, the claims of the informants had not been substantiated in all respects. However, those claims had been substantiated in a number of important respects. The affidavit was sufficient to support the search warrant and no error was committed by introducing the marijuana into evidence. Still the conviction must be reversed.

II

At trial, the prosecutor relied on and the trial [63 MICHAPP 545] court instructed on the two-ounce presumption embodied in M.C.L.A. § 335.341(2); M.S.A. § 18.1070(41) (2). That presumption is unconstitutional. People v. Serra, 55 Mich.App. 514, 223 N.W.2d 28 (1974). Reliance on the unconstitutional statute was reversible error.

Equally fundamental is the fact that the presumption was inapplicable to the present case. A search of the residence uncovered about 7 1/2 ounces of marijuana. Of that amount, 5.6 ounces were found under a pile of dirty clothes in the room of Kevin Johnson. No testimony connected defendant with this particular marijuana. The rest of the marijuana amounted to slightly less than two ounces. Thus, there was no evidence that Defendant possessed more than two ounces. Instruction on the statutory presumption suffered a double infirmity. It was inapplicable to the facts and unconstitutional.

III

Defendant also complains that the trial court erred in denying his request for a directed verdict of acquittal. The prosecution's proofs revealed that the search warrant was executed one morning at about 1:30 a.m. Defendant was bathing and Kevin Johnson was sleeping. The residence consisted of three bedrooms and a music room, each of which contained at least one mattress. Defendant was the lessee of the flat, but the landlord understood that others would also live there. The undisputed testimony was that a number of rent-paying residents and guests had lived in the home.

No marijuana was found on defendant's person or in the clothes he donned when arrested. None was found in the bathroom or in the bedroom from [63 MICHAPP 546] which defendant got his clothes, presumably his bedroom. In short, the police found no marijuana in the areas over which defendant had exclusive control.

As noted above, the largest package of marijuana was found in Kevin Johnson's room. Other small packets of marijuana were found in the third bedroom which, all evidence suggests, was used by an unnamed third party. There is nothing at all to connect defendant to this marijuana. Proof of defendant's identity as the possessor of the marijuana found in the bedrooms of others was entirely lacking. Those packets form no basis for defendant's conviction.

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