People v. Walker, Docket No. 19048

• Citation: 235 N.W.2d 85,64 Mich.App. 138
• Decision Date: 10 September 1975
• Docket Number: Docket No. 19048
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ulyesses WALKER, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 85

235 N.W.2d 85

64 Mich.App. 138

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ulyesses WALKER, Defendant-Appellant.

Docket No. 19048.

Court of Appeals of Michigan.

Sept. 10, 1975.

Released for Publication Nov. 18, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald J. Taylor, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and D. E. HOLBROOK and KAUFMAN, JJ.

KAUFMAN, Judge.

On May 31, 1973, defendant was convicted by a Berrien County Circuit Court jury of possession and control of a controlled substance, heroin, in violation of M.C.L.A. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a). He was subsequently sentenced to a term of from 2 1/2 to 4 years and now appeals of right.

On appeal, defendant raises several claims of error. Our holding on the first of these, that the police had no probable cause to arrest defendant, renders unnecessary any discussion of the other claims. Prior to trial, defendant made a timely motion for suppression of evidence and for a quashing of the information based on this claim. This motion was denied. This Court denied defendant's application for interlocutory appeal of this denial.

Defendant's conviction arose out of his arrest by the Benton Township police at about 1 a.m. on February 28, 1971. The events leading up to the arrest were precipitated by a telephone call which the police received at about 8:20 p.m. on February 27, 1971.

According to police witnesses, the caller stated that he had important information for the police chief, Paul Farris, but refused to give his name or describe the nature of the information. The caller was then given a number at which Chief Farris could be reached. The informant called Chief Farris, again refused to reveal his identity, and, according to Farris, told him that:

'Ulysus (sic) Walker had gone to Detroit for a load of dope and that he would be returning to the Benton Harbor area in approximately five hours and that he would be going to an address on Superior Street when he returned and that he would have with him two females and that he would be driving a bronze-colored Cadillac, four-door, with Indiana license plates, or a black vinyl over yellow '69 Olds, four-door, with Michigan license plates.'

Farris testified that the informant also indicated that the cars were owned by one Lucille Gayten who lived at the Superior Street address.

Chief Farris then relayed the information to an Officer Lester at the police station and told him to stop and arrest defendant. He ordered Lester to call the state police and ask them to look for either the Cadillac or Oldsmobile and, if either were sighted, to notify the Benton Township police. Lester did so and also determined the license number of the Oldsmobile and the fact that it was owned by Lucille Gayten. Officers went to Lucille Gayten's residence where they saw the Cadillac but not the Oldsmobile.

At this time, the police began a surveillance of the route which they felt defendant would use, notwithstanding the fact that the state police never informed them that the Oldsmobile was, in fact, returning from Detroit. At about 1 a.m., approximately the time which the informant had predicted, the police spotted the Oldsmobile. Upon stopping the car, the officers advised the five occupants that they were all under arrest for possession of narcotics. Charges against the other four were later dropped.

The officers then ordered the occupants out of the car. According to police testimony, defendant then jumped out of the right rear seat and 'made a throwing motion'. The arresting officer testified that he then saw a 'white powdery substance flying through the wind'. Despite the fact that the wind was blowing at about 30 m.p.h., a substantial amount of the powder landed near the car and produced a '2 1/2, 3 inches wide strip, * * * 14 to 18 inches' in length. This substance was protected from the wind, scraped up by police, and later determined to be heroin.

We find that the defendant's arrest was improper. The facts possessed by the police at the time they stopped the car and arrested defendant did not give them probable cause to make the arrest.

The police did not obtain an arrest warrant. Under M.C.L.A. § 764.15(c); M.S.A. § 28.874(c):

'Any peace officer may, without a warrant, arrest a person * * * (w)hen a felony in fact has been committed and he has reasonable cause to believe that such person has committed it'.

Reasonable, or probable, cause stems from some fact, circumstance, or information which creates an honest belief in the mind of a reasonable and prudent man; that is, there must be good reason to believe that the person arrested has committed a felony. People v. Langston, 57 Mich.App. 666, 226 N.W.2d 686 (1975). Probable cause may be based only on those facts in existence at the time of the arrest, not on any facts discovered after the arrest. Id., People v. Major, 34 Mich.App. 405, 191 N.W.2d 494 (1971).

The Supreme Court, in People v. Walker, 385 Mich. 565, 189 N.W.2d 234 (1971), in discussing cases where police base their probable cause on an informer's tip, stated:

'From both the Michigan and federal cases, it is clear that while police officers may proceed upon the basis of information received from an informer and need not disclose the identity of the informer, in order to establish probable cause there must be a showing that the information was something more than a mere suspicion, a tip, or Anonymous telephone call, and That it came from a source upon which the officers had a right to rely.' (Footnote omitted.) (Emphasis supplied.) Id. at 575, 189 N.W.2d at 239.

When probable cause is based substantially on an unidentified informant's tip, the police must be able to detail (1) articulable facts which provide the basis for considering the informant reliable and (2) the underlying circumstances on which the informant based his tip. Aguilar v. Texas, 378 U.S. 108, 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). See also People v. Daniels, 60 Mich.App. 458, 231 N.W.2d 386 (1975). Inportant facts are those which 'purport to relate the personal observations of the informant' and 'prior events within the (police's) own knowledge'. United States v. Harris, 403 U.S. 573, 581, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971).

Here, the police knew nothing about the informant or about the basis for his tip. In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Supreme Court held that, in a case where the police have no information about the informant or about the basis for his tip, he may still be considered reliable if his information is stated with such particularity and detail that, 'in common experience (it) may be recognized as having been obtained in a reliable way'. Id. at pp. 417--418, 89 S.Ct. at 590. The Court deemed the detailed information provided by the informant in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), a 'suitable benchmark'. Spinelli, supra, 393 U.S. at 416, 89 S.Ct. 584.

In Draper, supra, the tip was supplied by an informant who had provided reliable information in the past. The informant tole police that defendant would be coming by train from Chicago to Denver with 'three ounces of heroin'. He gave police a detailed physical description (involving height, weight, hair color and complexion), specific arrival time, specific description of the clothes defendant would be wearing, and he stated that defendant would be carrying 'a tan zipper bag' and habitually 'walked real fast'. The Spinelli court stressed that two factors in Draper made the tip reliable enough to provide probable cause. First, the information had the kind of details which could be provided only by one intimately connected with defendant's operation. Second, independent police work corroborated much of the informant's tip. The Court especially noted the police surveillance of the Chicago to Denver train and their corroboration of the informant's description of defendant before they arrested him.

We find that, compared to the tip in Draper, the informant's tip in the instant case was not of sufficient inherent reliability to provide probable cause for defendant's arrest. First, unlike the proven reliability of the...