People v. Price, Docket No. 21912

• Decision Date: 19 May 1976
• Docket Number: Docket No. 21912
• Citation: 244 N.W.2d 363,69 Mich.App. 363
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rufus W. PRICE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 363

244 N.W.2d 363

69 Mich.App. 363

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rufus W. PRICE, Defendant-Appellant.

Docket No. 21912.

Court of Appeals of Michigan.

May 19, 1976.

Released for Publication Aug. 11, 1976.

Gerald Curtis, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Solicitor Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Larry R. Roberts, Asst. Pros. Atty., for plaintiff-appellee.

Before WALSH, P.J., and ALLEN and KELLY, JJ.

PER CURIAM.

Defendant appeals from his conviction and sentence on the charged offense of possession of cocaine, M.C.L.A. § 335.341(4)(b); M.S.A. § 18.1070(41)(4)(b). Two preliminary examinations were held relative to this charge in River Rouge Municipal Court, both before Judge George Mihaiu. At the conclusion of the first examination, conducted in October 1973, Judge Mihaiu quashed the information on the ground that the arresting police officers lacked probable cause to conduct a warrantless arrest and search of the defendant.

A second complaint and warrant were issued upon the same facts and another preliminary examination was held during November 1973. ¹ At this second examination certain additional testimony was adduced and defendant was bound over to Wayne County Circuit Court for the instant offense. Defendant waived trial by jury, was found guilty, sentenced to serve two years probation and now appeals as of right. The two issues raised concern the validity of defendant's arrest and the constitutional propriety of the second preliminary examination.

Defendant's arrest was effectuated as a result of information supplied by a police informant. Two River Rouge police officers testified at the October preliminary examination. Dispatch officer Andrew Chirillo testified that on August 15, 1973, he was advised by fellow officers James Bates and David Bower that a narcotics informant who went by the name of 'Skeet' would be telephoning that afternoon with certain information which officer Chirillo was to relay, via radio broadcast, to officers Bates and Bower. Chirillo said that he received a telephone call at approximately 5:05 p.m. from a man identifying himself as Skeet who stated that 'the guy is up there with it in front of Tolbert's Party store'. This message was immediately dispatched to officers Bates and Bowers.

Officer Bates testified that he and his partner were both working in plain clothes in an unmarked patrol car on narcotics detail when they received a dispatch from officer Chirillo. Officer Bates indicated that he had met with Skeet at three o'clock that afternoon and that Skeet had agreed to get in touch if he had information that Rufus Price would be 'on the street holding narcotics' that afternoon. Officer Bates further testified that Skeet was a 'special employee' of the department, an informant who had furnished information on six previous occasions, three of which had resulted in convictions and that he was personally familiar with the defendant Price.

Acting upon the message received from officer Chirillo, officer Bates and his partner drove to the vicinity of the party store where they saw the defendant sitting in the driver's seat of an automobile. As the police cruiser pulled along side of defendant's car, officer Bates ordered the defendant out and told him that he had information that he was in possession of narcotics. Bates immediately searched the defendant and found two clear plastic bottles in his shirt pocket which contained a powdery white substance later determined to be cocaine. Defendant was then placed under arrest.

At the conclusion of Bates' testimony the defendant's motion to quash the information was granted, the examining magistrate ruling that the warrantless search was illegal since the police had time to secure a warrant but failed to do so. Another complaint and warrant reissued, and the following additional testimony was presented to Judge Mihaiu at the second preliminary examination: (1) at the time of the three o'clock meeting with Skeet officer Bates had no knowledge as to whether the defendant would be in possession of narcotics or whether he would even be on the street, (2) Bates received the radio dispatch from officer Chirillo at approximately 5:05 p.m. and (3) during the summer it was extremely difficult to locate an assistant prosecutor or to find a judge after 5 p.m. for purposes of securing an arrest or search warrant. On the basis of this additional testimony Judge Mihaiu bound the defendant over to Wayne County Circuit Court.

The defendant's theory of suppression of the seized narcotics hinges on the alleged inability of the people to establish probable cause for his arrest. Since there were no warrants issued for either the search or the arrest, the legality of the search depends upon the existence of probable cause for the arrest. See People v. Robinson, 388 Mich. 630, 634--635, 202 N.W.2d 288 (1972), T. G. Kavanagh, dissenting, Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145 (1964), Trupiano v. United States, 334 U.S. 699, 708, 68 S.Ct. 1229, 1234, 92 L.Ed. 1663, 1670--1671 (1948). And where the government seeks to establish probable cause on information received from an informant the people must be able to demonstrate '(1) articulable facts which provide the basis for considering the informant reliable and (2) the underlying circumstances on which the informant based his tip.' People v. Walker, 64 Mich.App. 138, 143, 235 N.W.2d 85, 88 (1975). See Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964).

In the instant case, relative to the reliability of the informant, officer Bates testified that he knew Skeet, that he had been a 'special employee' of the police department, that he had provided information on six previous occasions and that three convictions had been obtained as a direct result of these prior contacts. ² Thus, the reliability of this informant was firmly established. See Draper v. United States, 358 U.S. 307, 309, 79 S.Ct. 329, 331, 3 L.Ed.2d 327, 329 (1959). Contra, see People v. Walker, supra, 64 Mich.App. at pp. 143--145, 235 N.W.2d 85, People v. White, 392 Mich. 404, 221 N.W.2d 357 (1974), Cert. den. 420 U.S. 912, 95 S.Ct. 835, 42 L.Ed.2d 843 (1975).

The underlying circumstances for Skeet's information were few but easily stated. As previously indicated, officer Bates testified to a 3 p.m. meeting with Skeet on the day of defendant's arrest. It was agreed that Skeet would place a phone call to the police station if the informant saw the defendant 'on the street' and if he had information that Price would be 'holding narcotics'. It is clear from Bates' testimony that the defendant was known both to himself and to the informant. We find this testimony adequately relates the facts on which the informant relied for his tip to the police.

The defendant, relying on Draper v. United States, supra, further contends that the arresting officers failed to adequately verify the information supplied by the informant. In Draper the physical characteristics of the defendant were set out in some detail to a Federal narcotics agent. The informant had told him that defendant would be arriving in Denver from a Chicago train, carrying a tan zipper bag, walking very fast and that he he would be in possession of three ounces of heroin. Six members of the Supreme Court found this information to be sufficient to establish probable cause for defendant's arrest...