People v. Talley

Decision Date23 February 1981
Docket NumberDocket No. 64037
Citation301 N.W.2d 809,410 Mich. 378
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lamont Reginald TALLEY, Defendant-Appellee.
CourtMichigan Supreme Court

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Paul G. Bruno, Asst. Pros. Atty., Detroit, for the People.

Alvin C. Sallen, Southfield, for defendant-appellee.

PER CURIAM.

There are two issues in this case. The first is whether the trial court, relying solely on the preliminary examination transcript, correctly quashed the information against the defendant on the theory that the testimony of the sole witness before the examining magistrate was "inherently incredible": the defendant argues that no one would wait until the last minute, as the police were reaching his or her car, to secrete narcotics after having been followed by these same officers for some distance. The examining magistrate chose to believe the officer rather than defendant's argument. The second issue is whether the Court of Appeals, though doubtful of the validity of the trial court's quashing of the information, correctly affirmed the trial court on the basis of defendant's Fourth Amendment illegal seizure argument, although the trial court never looked beyond the record of the preliminary examination and the suppression argument had not been the articulated basis of the trial court's decision to quash.

As to the trial court's quashing of the information, we find such action to have been erroneously taken. The examining magistrate did not abuse his discretion in finding probable cause to bind defendant over on the charged offense. Regarding the Court of Appeals affirmance of the trial court due to its own determination of the unconstitutionality of the seizure of the evidence, we hold such determination to have been misdirected since the pretrial hearing on defendant's motion was not only devoid of any relevant discussion or consideration relating to the existence of probable cause to seize the evidence, but more particularly was made on the basis of the preliminary hearing transcript and not on a full evidentiary hearing. We specifically disapprove of the practice of relying exclusively on preliminary examination transcripts in the conduct of suppression hearings. Accordingly, in lieu of granting leave to appeal, and pursuant to GCR 1963, 853.2(4), we reverse the judgment of the trial court and vacate the judgment of the Court of Appeals and remand the matter to the trial court for the holding of a de novo evidentiary hearing to resolve the issue of whether the arresting officers had probable cause to seize the evidence.

I. FACTS

The sole factual exposition of the events surrounding defendant's arrest and the seizure of the evidence was that of Officer James Henry, one of two officers arresting the defendant and the only person to testify at defendant's preliminary examination. According to Officer Henry, he and his partner observed the car in which defendant was riding as a passenger speeding. They pursued the car in a marked scout car for several blocks, pacing its speed, but staying about three quarters of a block behind, before they signaled it to pull over after coming up to it at a stop sign. The car in which defendant was riding then proceeded almost another full block before it could find a spot in which to pull over. Officer Henry then testified that as he approached the car on the driver's side and his partner approached on the passenger's side, he observed defendant drop to the floor of the car a brown paper bag protruding from which he could see a large plastic bag containing green coin envelopes. The defendant then, according to Officer Henry, attempted to "kick" the bag under the seat with his left hand. Based on the officer's prior experience with coin envelopes as a means of packaging narcotics, the defendant and the driver were thereupon ordered out of the vehicle and the bag was seized from the car. Upon opening the brown bag at the scene the officers found it to contain three large plastic bags with a total of 230 green coin envelopes dispersed among the three bags. After opening one of the green coin envelopes and finding it to contain an off-white powder which they suspected to be heroin, the officers arrested the defendant. It was stipulated at the preliminary examination that 60 of these coin envelopes, representing a sampling from all three plastic bags, were found to contain heroin. The defendant was charged with possession of heroin with intent to deliver. M.C.L. § 333.7401; M.S.A. § 14.15(7401).

At defendant's preliminary examination defense counsel argued that the defendant should not be bound over since the testimony of Officer Henry was "inherently incredible". According to defense counsel it was beyond belief that two men possessing a bag containing a quantity of heroin would wait until the officers were right next to their car before one of them would attempt to secrete it, despite the fact that they had been paced for several blocks by a marked scout car containing two uniformed officers, that they had proceeded for almost one full block after being signaled by the police to pull over, and that they had to wait for the officers to get out of their car which had been parked five feet behind their own and approach them on foot. The examining magistrate, however, chose to believe the testimony of Officer Henry and bound defendant over for trial on the charged offense.

Following the preliminary examination the defendant filed a pretrial motion which he entitled "Motion to Suppress the Evidence and Quash the Information" (Appellant's Delayed Application for Leave to Appeal ("Appellant's Application"), Appendix A, p. 1). However, at the outset of its hearing on this pretrial motion, the trial court characterized it simply as one to "quash information" (Motion Transcript, p. 2 Appellant's Application, Appendix B, p. 2), and concerned itself throughout the hearing almost exclusively with the credibility of Officer Henry, the officer who testified at the preliminary examination. There was no consideration at this hearing as to the suppression of the heroin as a matter of constitutional law, no one addressing the issue whether, even assuming the facts as related by the officer were true, there was or was not probable cause to seize the bag containing the heroin under the "plain view" exception to the warrant requirement. Instead, the trial court found that the examining magistrate had abused his discretion in not finding Officer Henry's testimony "inherently incredible" and quashed the information for that reason (Motion Transcript p. 9 Appellant's Application, Appendix B, p. 9).

The Court of Appeals affirmed the trial court's decision in a memorandum opinion on the different rationale that the police lacked probable cause to seize the brown bag. Support for this rationale was provided exclusively by citation to People v. Young, 89 Mich.App. 753, 282 N.W.2d 211 (1979), lv. den., 407 Mich. 877 (1979).

II. TRIAL COURT REVIEW OF THE EXAMINING MAGISTRATE

As already indicated, following the preliminary examination the defendant filed a pretrial motion to suppress the evidence and quash the information. On the sole basis of its disbelief of Officer Henry's testimony at the preliminary examination, the trial court did quash, saying:

"A fair reading of the testimony that went into that case makes it inherently incredible that that is the method by which this observation of the bag could have been done." (Motion Transcript p. 9 Appellant's Application, Appendix B, p. 9)

In other words, the trial judge substituted his judgment for that of the examining magistrate.

In reviewing the decision of a magistrate to bind over an accused person, the trial court may not properly substituted its judgment for that of the magistrate, but may reverse a magistrate's decision only if it appears on the record that there has been an abuse of discretion. Genesee Prosecutor v. Genesee Circuit Judge, 391 Mich. 115, 121, 215 N.W.2d 145 (1974); People v. Dellabonda, 265 Mich. 486, 491, 251 N.W. 594 (1933). In Dellabonda, this Court stated:

"Primarily the question of probable cause is for the consideration of and determination by the examining magistrate. This Court may not agree with the findings of such magistrate but it has no right to substitute its judgment for his except in case of a clear abuse of discretion."

Part and parcel of the magistrate's function of determining whether an offense has been committed and whether probable cause exists for charging the defendant therewith is the duty of passing judgment on the credibility of witnesses. People v. Paille # 2, 383 Mich. 621, 627, 178 N.W.2d 465 (1970); People v. Karcher, 322 Mich. 158, 164, 33 N.W.2d 744 (1948). This was emphasized in Paille # 2, where this Court said:

"(T)he magistrate had not only the right but, also, the duty to pass judgment not only on the weight and competency of the evidence, but also the credibility of the witnesses.

"We have often commented upon the fact that the judge who hears the testimony has the district advantage over the appellate judge, who must form judgment solely from the printed words."

Our task in assessing the trial court's decision to quash the information is to determine whether or not there has been an abuse of discretion on the part of the examining magistrate because, as observed above, a reviewing trial court may only substitute its judgment for that of the examining magistrate where there has been such an abuse. Our standard for review, furthermore, in testing for an abuse of discretion is a narrow one. The classic description of this standard, first articulated in Spalding v. Spalding, 355 Mich. 382, 384-385, 94 N.W.2d 810 (1959) (a modification of a divorce decree case) and later given a somewhat stricter interpretation...

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