People v. Williams

• Decision Date: 07 January 1985
• Docket Number: Docket No. 73184
• Citation: 360 N.W.2d 585,139 Mich.App. 104
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Clarence WILLIAMS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 585

360 N.W.2d 585

139 Mich.App. 104

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Clarence WILLIAMS, Defendant-Appellee.

Docket No. 73184.

Court of Appeals of Michigan.

Submitted May 7, 1984.

Decided Oct. 5, 1984.

Released for Publication Jan. 7, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Rosemary A. Gordon, Asst. Pros. Atty., for the People.

Ward F. McDonough, Jr., Detroit, for defendant-appellee.

Before MAHER, P.J., and HOOD and MARTIN ^*, JJ.

PER CURIAM.

The people appeal as of right from the trial court's order granting defendant's pretrial motion to suppress evidence and dismissing the case.

A 36th District Court magistrate signed a warrant authorizing the search of a house at 15221 St. Marys in Detroit and a person known as "Pee Wee" on May 12, 1983. The police intended to search for heroin or other controlled substances. Detroit Police Officer William Jasper attested in the affidavit for the search warrant to the following facts:

"1. The affiant is a member of the Detroit Police Department working in conjunction with a Source of Information (SOI 996) that the affiant has used on Seven prior occasions resulting in the arrest of Seven people for Narcotic related offenses, all of which are pending in the 36th District Court.

"2. On May 11, 1983, the affiant met with SOI 996 and formulated plans to make a controlled purchase of Heroin from 15221 St. Marys. The affiant searched the SOI for money and/or narcotics with negative results. The affiant supplied the SOI with SS Funds to make the purchase of Heroin. The affiant observed as the SOI entered 15221 St. Marys and a short time later exit. The SOI then met with the affiant and handed the affiant an amount of suspected Heroin that the SOI stated was purchased from the above described person from within 15221 St. Marys. Again, the affiant searched the SOI with negative results.

"3. On May 11, 1983, the affiant conveyed the suspected Heroin purchased from 15221 St. Marys to the Narcotic Section where PO James Tanderys performed an analysis on the powder and found it to contain Heroin. The affiant then sealed the Heroin into LSF 183807.

"4. Wherefore the affiant has probable cause to believe that Heroin is being stored at and sold from 15221 St. Marys."

When police officers executed the warrant on the same day, May 12, 1983, they saw defendant sitting near a table that had heroin and other drug paraphernalia on top of it. After arresting defendant, officers searched him at the 13th precinct police station and found additional heroin on him. The people charged defendant with two counts of possession of less than 50 grams of a controlled substance, M.C.L. Sec. 333.7403(2)(a)(iv); M.S.A. Sec. 14.15(7403)(2)(a)(iv). A magistrate bound over defendant to the Detroit Recorder's Court for trial on May 20, 1983.

Defendant moved for an order to suppress all the evidence found as a result of executing the search warrant arguing that the search warrant was defective. Defendant alleged that the police officer-affiant had not stated any information that could be considered indicia of the unknown informant's reliability or credibility. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Following arguments at the hearing on the motion, the trial court said:

"The motion to suppress is granted.

"I'm satisfied that the affidavit and search warrant on it's face is clearly deficient under the authority of People versus David [119 Mich App 289; 326 NW2d 485 (1982) ].

"If they had gone back on May 11th there's nothing in this search warrant that would show that there might still be more contraband there that people would be willing to sell.

* * *

* * *

"If there had been representation not only to this single controlled buy, but that the SOI know that this was an ongoing criminal enterprise that occurred before that date and that was ongoing and could be reliably made some time immediately after I think it would have been fine."

We reverse because we find that the police officer-affiant's information regarding the single controlled buy formed a sufficiently substantial basis for the magistrate's finding of probable cause to search 15221 St. Marys on May 12, 1983. See People v. Gleason, 122 Mich.App. 482, 490, 333 N.W.2d 85 (1983).

Despite the parties' argument otherwise, the reliability or credibility of an unknown informant's information is not at issue here. See Aquilar, supra, and Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The only information offered in the affidavit as a basis to support the warrant is the controlled buy. The affiant participated in that controlled buy. Therefore, no hearsay is at issue.

In David, supra, 119 Mich.App. p. 295, 326 N.W.2d 485, upon which the trial court re...