People v. Ward

• Decision Date: 04 June 1981
• Docket Number: Docket No. 49763
• Citation: 308 N.W.2d 664,107 Mich.App. 38
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Charles WARD, a/k/a Kenneth Dean Watson, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 664

308 N.W.2d 664

107 Mich.App. 38

The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michael Charles WARD, a/k/a Kenneth Dean Watson, Defendant-Appellee.

Docket No. 49763.

Court of Appeals of Michigan.

June 4, 1981.

Released for Publication Aug. 5, 1981.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., Charles M. Sibert, Asst. Pros. Atty., for plaintiff-appellant.

James R. Neuhard, State Appellate Defender, Terence R. Flanagan, Asst. State Appellate Defender, for defendant-appellee.

Before CAVANAGH, P. J., and J. H. GILLIS and ALLEN, JJ.

PER CURIAM.

The prosecution appeals from a January 30, 1980, order of the Circuit Court for Ingham County dismissing a charge of conspiracy to deliver cocaine, M.C.L. § 750.157a; M.S.A. § 28.354(1) and M.C.L. § 333.7401(1); M.S.A. § 14.15(7401). The order was entered when, following a three-day hearing, the circuit court granted defendant's pretrial motions to quash the information, to quash search warrants, and to suppress evidence.

Testimony revealed that on the afternoon of March 20, 1979, Miklos Szilagyi, a Lansing police officer assigned to the Metro Narcotics Squad and investigator for the Ingham County Citizens Grand Jury, drove to the house of Randall Lee Seaver at 830 Lake Lansing Road. There he observed defendant drive a white Pontiac, which was later determined to be a rented vehicle, into Seaver's driveway. Defendant left the car, entered the house, then returned, opened a suitcase in the trunk of the car, and removed something from the suitcase. Defendant placed something in his jacket, closed the suitcase, then the trunk, and returned to the house. Defendant left the house a few moments later and drove away.

A surveillance team of the Metro Squad followed defendant to an address on Pine Tree Road. There, defendant talked on the front porch for a while, entered the house, remained for about 20 minutes, and then drove to a gas station where he made a telephone call from a phone booth. He then returned to the Pine Tree Road house, remained inside for another 20 minutes, then drove to another pay phone booth, and made another phone call. The surveillance team lost track of the defendant's car but located it again later at Seaver's house.

Later that day, defendant was followed as he drove southeastward for approximately 50 miles. Near Milford, not far from the intersection of M-59 and US-23, the surveillance team spoke to a state trooper, indicating that they wanted defendant's car stopped to ascertain his identity. A trooper pulled the car over. Defendant showed him a driver's license which indicated that his name was Kenneth Watson of Plantation, Florida. The defendant said that he worked for a travel agency and was on his way to the airport to catch a plane. Defendant was released, and no traffic citation was issued. The trooper later told a narcotics squad officer that the stop was made because defendant had made an illegal turn.

The surveillance team continued to follow defendant but ended surveillance for the day after they observed defendant sitting in a parked car, reading a road map.

One member of the surveillance team, Officer Boyd of the Tri-County Metro Narcotics Unit, checked with the rental agency and determined that the car had been leased by Kenneth Watson of Plantation, Florida. The next morning, Officer Boyd ran a LEIN check and learned that Watson had been arrested after one pound of cocaine was seized from him, but the case had been dismissed. Police also learned that a man who was killed in an apparently drug-related homicide had placed a call shortly before his death to the Pine Tree Road residence that defendant visited on March 20.

On the afternoon of the following day, March 21, the surveillance team again spotted defendant's car parked in the driveway at Seaver's home. Observation of the house and car was made by Officer Szilagyi from the vantage point of a neighbor's yard, some 125 feet away. From this location, Szilagyi took pictures using two different camera lenses, a 300mm and 200mm lens. His observations were in turn relayed by radio to Officer Boyd who was sitting in his car in a 7-11 parking lot a short distance from Seaver's house. Boyd received a radio message from Szilagyi that defendant had just emerged from the Seaver residence carrying a clear glassine baggie the size of several hot dogs containing white powder and that defendant had climbed into the car trunk and was hiding the baggie in the trunk liner. Eight photographs were taken and introduced into evidence at the suppression hearing. They showed defendant climbing into the car trunk but did not show a glassine package.

Via radio, Boyd then asked Szilagyi whether he "felt certain about what he had seen". Szilagyi replied that he did and added that defendant was just driving away. Boyd followed. When defendant turned into a gas station at the intersection of Lake Lansing and Abbott Roads, Boyd pulled his car in front of defendant's, exited from his car with his gun drawn and ordered defendant out of defendant's car. When defendant got out of his car, Boyd searched him and told him that he was under arrest for violation of the controlled substances act. This was about 3 p. m. No cocaine was found in defendant's possession. The car was then towed to the East Lansing police station, and the trunk was opened and searched after a warrant for search of the car was secured at about 6:28 p. m. Some Quaaludes and white note paper were found in the upper portion of the trunk, but no cocaine or glassine packet was discovered. Meanwhile, and before a warrant was obtained for search of the Seaver house, police entered the house at about 3:30 p. m. There they made plainview observations of items in the house and detained Seaver and his girlfriend for approximately five hours while they waited for a search warrant. While waiting, the police officers found cocaine and related paraphernalia in one bedroom. In a dresser drawer, which they said was pulled out, they observed a bank bag containing 25 small glass vials holding pills. In an open footlocker, they saw two, clear gallon-sized baggies containing psilocybin mushrooms. During the waiting period, the officers field tested the cocaine and took photographs. After the search warrant arrived, police completed the search of the Seaver house within minutes.

In a 52 page opinion delivered verbally from the bench on November 29, 1980, the trial court granted defendant's motion to suppress the evidence on the following grounds: (1) the police made an improper pretext stop of defendant on March 20, near the intersection of US-23 and M-59 near Milford; (2) the observations of defendant through a 300mm lens from a neighbor's yard were inadequate to support a finding of probable cause for defendant's arrest; (3) because the affidavit in support of the warrants to search defendant's car and the Seaver residence relied on Officer Szilagyi's positive assertion that defendant hid a bag of white powder in his car and a subsequent extensive search failed to uncover the bag, the warrants to search were invalid; and (4) the evidence seized at Seaver's residence pursuant to the search warrants was the fruit of the poisonous tree. As articulated by the trial judge:

"What we're really talking about is a search here that is intimately related to, at least, two prior unlawful intrusions into the defendant's person and into his automobile, and that it was those intrusions that as a matter of fact, it's the alleged possession of the cocaine and the glassine packet with the white powder that caused the prosecuting attorney, apparently, to suggest that they secure the house, on the basis upon which they entered the house and observations made of the defendant and items which were alleged to be in his possession. They cannot be separated. So I think that the intrusion into the house must be viewed in light of the prior ongoing transactions.

"What I suggest that we really got here is a fruit of the poison tree. So the standing, although I'm satisfied that under all the circumstances there is standing, I'm not sure that it's even required because of the source of the information which lead to the seizure of the house.

"In this particular case, without the unlawful stop at Milford, Michigan, the identity of this defendant could not have been known, and the only way it was was that stop coupled with the illegal arrest at the gas station at Abbott Road and Lake Lansing Road."

The propriety of each of the trial court's grounds for suppression of evidence is discussed in the balance of this opinion.

I. The alleged pretext stop.

At the suppression hearing, Officer Boyd testified that Metro Narcotics Squad officers asked a state trooper to pull over defendant's car in order to learn defendant's identity. He also stated that the trooper claimed that he stopped defendant for failing to signal a turn. This testimony was greeted by laughter in the courtroom. No evidence was presented that a citation was issued for an improper turn or for any violation. Relying largely on the fact that no citation was issued, the trial court found that the stop was a pretext stop.

Though the prosecution argues on appeal that the stop was made because the trooper observed an illegal turn, we cannot fault the trial judge for concluding that no illegal turn was made and thus the stop was a pretext stop. However, the fact that no violation occurred does not render the stop and the information as to defendant's identity obtained therefrom invalid. The stop may be validated as a Terry ¹-Whalen type investigatory stop. In People v. Whalen, 390 Mich. 672, 682, 213 N.W.2d 116 (1973), our Supreme Court set forth a four-pronged test to determine the reasonableness of an investigatory stop:

"1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.

"2. Said...