People v. Summers

• Citation: 68 Mich.App. 571,243 N.W.2d 689
• Decision Date: 26 April 1976
• Docket Number: Docket No. 22802
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. George SUMMERS, Defendant-Appellee. 68 Mich.App. 571, 243 N.W.2d 689
• Court: Court of Appeal of Michigan (US)

Page 689

243 N.W.2d 689

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. George SUMMERS, Defendant-Appellee.

Docket No. 22802.

68 Mich.App. 571, 243 N.W.2d 689

Court of Appeals of Michigan.

April 26, 1976.

Released for Publication July 16, 1976.

[68 MICHAPP 574] George Summers in pro. per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Raymond P. Walsh, Asst. Pros. Atty. Detroit, for the People.

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

BRONSON, Presiding Judge.

Defendant was charged with possession of heroin, contrary to M.C.L.A. § 335.341(4)(a); M.S.A. § 18.1070(41). Prior to trial, defendant filed a motion to suppress the heroin which was the [68 MICHAPP 575] subject of the prosecution on grounds that it was the product of an illegal search. The trial judge granted that motion, quashed the information, and ordered defendant dismissed. The prosecutor appeals here.

The search in question occurred on the night of October 10, 1974. A team of Detroit police officers were dispatched that night to execute a search warrant for a house located at 9356 Mansfield in the City of Detroit. The warrant authorized a search of the premises, and named defendant as the owner of the house. ¹ As the police converged [68 MICHAPP 576] on the above location, a man later identified as defendant was observed exiting the house. Patrolman Roger Lehman stopped defendant, and identified himself as a police officer.

When the police learned that defendant lived in the house, they ordered him to unlock the front door. Defendant responded that he did not have his keys with him, and that he would have to use the intercom to convince someone inside to open the front door. Defendant spoke to a person named Dwight over the communication system, instructing Dwight to let him into the house. A few minutes later, Dwight Calhoun appeared at the door. Patrolman Lehman identified himself as a police officer, but Calhoun just stood there. When Lehman tried to open the locked storm door, Calhoun slammed the inside door shut.

Three of the officers quickly moved up and knocked down the front door. As they did so Officer Lehman observed Calhoun running toward a downstairs bedroom. Lehman started chasing Calhoun after instructing another officer, Anthony Conant, to bring defendant inside. Conant escorted defendant into the house as the other members of the police team 'secured' the house. ² Patrolman [68 MICHAPP 577] Lehman meanwhile pursued Calhoun into the bedroom, and saw Calhoun toss a 'pack' onto the bed. The 'pack' was retrieved and was found to contain suspected heroin. Calhoun was placed under arrest and escorted back into the living room. Other persons, variously described as five, six, or eight in number, were found in the house and brought into the living room by other police officers.

After Calhoun was brought into the living room, and the house was otherwise 'secured', Conant proceeded to search the whole house. He found two plastic bags of suspected narcotics under the bar in the basement. When Conant returned, defendant again indicated upon questioning that he was the owner of the house and lived there. Defendant was then placed under arrest and searched. Suspected heroin was found in his pocket. All of the other persons in the house were also searched, but there is no indication that anything was found on their persons. Laboratory tests [68 MICHAPP 578] revealed that the envelope found in defendant's pocket contained 8.5 grams of heroin.

Defendant was charged only with possession of the 8.5 grams of heroin found concealed on his person. Consequently, when the search was ruled illegal and the evidence suppressed, the charges against defendant were also dismissed. The prosecutor on appeal contends that defendant was properly searched.

The prosecutor makes three arguments to justify the search of defendant's person. First, the prosecutor argues that the search warrant authorized a search of the 'premises', and that all hiding places located inside the house are part of the 'premises'. Secondly, the prosecutor claims that, even if this was not strictly a 'premises search', a person found in the house when the search warrant is issued can in some cases be searched. A search was justified here because of defendant's presence on the premises, his ownership of the premises, and the reasonable expectation that an item sought would be found on his person. Finally, the prosecutor argues that the police had probable cause to arrest defendant when they found a controlled substance in the property owned by him. The search is then justified as incident to that arrest. We reject all of these legal bases for the search, and affirm the trial court.

The prosecutor's first legal theory is based upon M.C.L.A. § 780.651 M.S.A. § 28.1259(1), which authorizes a magistrate to issue a warrant to search any 'house, building or other location or place where the property or thing which is to be searched for and seized is situated'. The argument goes as follows: Since the clothing of the defendant is a 'place where' heroin could be located, the trial judge must have intended to allow a search of the same pursuant to his warrant for the 'premises'.

[68 MICHAPP 579] The prosecutor misses the point of the statute. M.C.L.A. § 780.651; M.S.A. § 28.1259(1) only Authorizes a magistrate to issue warrants to search certain places. Once a warrant has actually been issued, it cannot be broadly interpreted. A search warrant must describe the premises to be searched and the property to be seized with particularity, and the executing officers must narrowly follow that description, Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231, 237 (1927); People v. Franks, 54 Mich.App. 729, 221 N.W.2d 441 (1974). It is true that the magistrate Could have issued a warrant to search any individual found on the premises, but he did not do so. The 'particularity' requirement prevented the police officers from legally extending the scope of the warrant so as to authorize a search of defendant's person.

The prosecutor argues in the alternative that the courts of other states have allowed the search of individuals found on the premises to prevent the complete frustration of the warrant. Otherwise, it is claimed, occupants would simply conceal contraband upon their person as the police announce their presence. Applying the test found in those cases, the prosecutor states that there was 'reasonable cause' for the police to believe defendant had upon his person property subject to the warrant. Particular accent is put on defendant's presence on the scene and his ownership of the house.

Our courts have never explored the extent to which persons found upon the premises as a search warrant is executed can be searched without another warrant. This is not the occasion to decide that issue, for all of the cited cases require at the very least Presence upon the premises being searched. That factor cannot be found here. The [68 MICHAPP 580] defendant was stopped outside of the house. There hardly could be any items on his person which were subject to the search warrant, since the items too were outside the designated premises. Taking defendant back inside did not change the situation. Even if the police acted legally in doing so, an issue we do not decide here, failure to search defendant's person certainly would not 'frustrate' the execution of the warrant. There could be little fear that items in the house would be taken and concealed by defendant, who was being detained and watched by Officer Conant.

The prosecutor's final claim is that the police had probable cause to arrest defendant for possession of the narcotics found in the basement of the house. If that contention is true, then the police properly searched the person of defendant incident to that arrest. The trial judge, however, ruled that the police lacked probable cause to arrest the defendant. He found People v. Davenport, 39 Mich.App. 252, 197 N.W.2d 521 (1972), to be controlling here, and we agree.

In Davenport, police officers went to a house where defendant resided with three other persons for the purpose of executing a search warrant for those premises. As the police broke down the door to gain entry, they observed the defendant running upstairs with a small box. The police reached an upstairs bathroom in time to retrieve three envelopes and a bit of loose marijuana as the defendant attempted to flush them down the toilet. Marijuana was also found in those envelopes. A search of the whole house was then conducted, and a bag of narcotics paraphernalia and .26 grams of heroin were found in the basement. Both items were at the bottom of a barrel of soiled clothes, and the heroin was contained in a prescription [68 MICHAPP 581] bottle, bearing defendant's name, for another, nonnarcotic drug.

The Court in Davenport held that there was insufficient evidence to support a jury verdict convicting Davenport of possession of the .26 grams of heroin. Judge, now Justice Levin, writing for the Court, expressed the reasoning of the panel as follows:

'Davenport cannot be convicted on the theorem that Someone must have been in possession of the heroin.

'Davenport's residence in the house and the presence in the bag of a plastic bottle carrying a label bearing his name were the only evidence connecting him to the heroin found in the brown bottle. Four persons lived in the house. It is not reasonable to infer from the fact that Davenport was one of the occupants that he--rather than Phillips of Brown or Green--was the person who placed the capsules in the brown bottle. In addition to the plastic bottle labeled with Davenport's name, there were two plastic bottles bearing the name of one of the other residents, Ardis Phillips. There was no evidence that the brown bottle, the bag, or the barrel belonged to...