People v. Charles D. Walker

189 N.W.2d 234, 385 Mich. 565, 1971 Mich. LEXIS 207

• Court: Michigan Supreme Court
• Decided: August 27, 1971
• Docket: 26 April Term 1971, Docket No. 52,988
• Status: Published

Opinions

Adams, J.

The basic question in this case is whether at a preliminary examination the people are required to show — by legally admissible evidence— that a crime has been committed and that there is probable cause to believe the accused is guilty. As will be seen, the error in this case was raised (1) at the preliminary examination, and (2) by two pretrial motions to quash. No attempt was made to correct the error until the defendant’s trial had begun and he had been placed in jeopardy.

Evelle White, Charles Parrish and defendant were arrested for unlawful possession of heroin at 1:30 p.m. on June 28, 1968. White’s 1966 Pontiac was stopped after leaving expressway 1-96 and entering Grand Eapids. Police officers Freeman and Bender blocked defendant’s car by cutting in front of it with an unmarked Corvair. They jumped out of their car with guns pointed and ordered White, Parrish and Walker to keep their hands in sight. White and Parrish were in the front seat — Walker in the back. They seized four packets of heroin from the rear floor of the car where Walker’s feet had been. Search of Walker’s pockets resulted in seizure of a “works kit” for heroin and an envelope containing four tabs of methadone.

On direct examination of Sergeant Freeman at the preliminary examination, the prosecutor relied on Article 1, § 11, Constitution of 1963, and made no attempt to show probable cause for the search and seizure. Cross-examination of Freeman by Calvin Danhof, attorney for White, in pertinent part was as follows:

“Q. Now, had you received any word, prior to your going out to the Ionia crossroads, concerning this Pontiac?

“A. Are you referring to a specific time?

“Q. I am referring to any time that day or the day before or the week before.

“A. Yes. We had information on this Pontiac.

“Q. From whom did you receive this information?

“A. Over the phone.

“Q. Who, over the phone, gave you the information?

“A. I don’t know the name.

“Q. Would that be in your file?

“A. No, it would not.

“Q. Why not?

“A. We don’t put that information in the file unless we have to.

“Q. You don’t recall the name of this person?

“A. I didn’t say that.

“Q. Do you know the name of this person?

“A. It’s possible, yes.

“Q. What is the name ?

“Mr. Probert [assistant Prosecuting Attorney]: Objection, your Honor. This witness is being asked this question again. It has no effect to the offense charged and; number two, I again cite Article 1, § 11 of the Michigan Constitution which states that guns and narcotics are not subject to the laws of search and seizure, and it has no relevancy nor material at this time.

“Mr. Danhoff [sic]: In support of the line of questioning, your Honor, I would submit that the nature of the information received by the police force and the identity of thfe person or persons who gave this information is crucial on the issue of the reasonableness of the arrest and resulting search and seizure in this case.

* * *

“The Court: * * * Getting back to the matter of the question at hand as to — let me ask the Sergeant this question. I mean, did you receive — did you talk to the party who provided the information for this particular arrest and search?

“A. Well, to answer it that way, the information on this particular car and the driver was not one piece of information. We had received information, and the Police Department had received information, and myself, on Mr. White dating back some time.

“The Court: Well, at this time I will overrule the objection and — excuse me. You made the objection, Mr. Probert. I will sustain the objection to requiring this officer to name this source of information at this time. Go ahead, Mr. Danhof.

“Mr. Danhoff [sic]: With exception, your Honor, to the identity of this person, I would like to — with permission of the court, pursue this line of questioning a little bit further so we can learn the nature and extent of the information that the police had received prior to this arrest.

“Mr. Probert: Your Honor, Pm going to object. I think Mr. Danhof will attempt to indirectly, and perhaps by eliciting certain questions and obtaining certain information from these questions, although not directly as to who the source of information was, perhaps by process of elimination obtain the same information.

“The Court: Well, I’ll permit some limited questioning along these lines and still maintain the ruling that the source of the information as to name and address and that sort of thing is not necessarily to be divulged here, but more or less to determine the extent of the information which prompted the arrest and search. So go ahead, Mr. Danhof.”

In spite of the judge’s ruling, Mr. Danhof did not pursue this line of questioning. There was no other testimony, either by Sergeant Freeman or by any other witness at the preliminary examination, to establish probable cause.

Before trial, defendant filed a motion to quash the information for lack of probable cause in the arrest and search of Walker. The motion was denied by Judge Searl largely on the ground that the Michigan Constitution, Article 1, § 11, allowed searches without probable cause for narcotics “outside the curtilage of any dwelling house in this State.”

At a pretrial conference before Judge Boman J. Snow, defendant’s attorney again moved to quash the information “on the grounds the arrest was improper and without good and reasonable cause.” No testimony was introduced other than that at the preliminary examination. Judge Snow relied on the validity of Article 1, § 11, of the 1963 Constitution and also found probable cause for search under the “plain view doctrine” based on the testimony of Sergeant Freeman that he saw the four packets (later found to contain heroin) on the floor of the car “as he [Walker] was just getting out of the car.”

At trial on March 4, 1969, after the jury was sworn and after the voir dire, the prosecutor conducted an examination of Sergeant Freeman outside the presence of the jury. Defendant’s attorney objected on the ground that probable cause must be shown at the preliminary examination and cannot be shown at trial. Sergeant Freeman’s testimony at the trial clearly established probable cause.

Walker was convicted of unlawful possession or control of narcotics (MCLA § 335.153 [Stat Ann 1957 Rev § 18.1123]) and was sentenced to five to ten years. His conviction was affirmed by the Court of Appeals. (25 Mich App 418.) We granted leave. (384 Mich 761.)

Relying on People v. Zeigler (1960), 358 Mich 355, defendant argues that probable cause must be shown at the preliminary examination. In Zeigler, this Court stated (pp 359, 360):

“What about probable cause in the case at bar? The only showing before the circuit court on the motion to suppress consisted of the testimony presented at the preliminary examination. Amplifying testimony later taken at trial cannot be considered. We are limited to that taken at the examination. People v. Miller, supra. [(1928) 245 Mich 115] With respect to all such testimony concerning complaints or tips about defendant received by the officers before the arrest, it must be said, as in Miller, that ‘the officer did not give the source of his information nor identify his informant.’ In fact, when defendant’s counsel questioned the officer, at the preliminary examination, as to the source of his information, he replied that it was confidential, and the examining magistrate sustained the prosecuting attorney’s objections to defense counsel’s further questioning on the subject. As said in Miller, then, the anonymous information did not meet the test. There was no other information, free from the infirmity of being anonymous, disclosed to the court by the officer on which a claim of probable cause for the search could be planted. Probable cause was not established.”

In People v. Kaigler (1962), 368 Mich 281, Justice T. M. Kavanagh, who was joined in his opinion by three other Justices, wrote (p 299):

“Both Justice Kelly and Justice Souris have ignored the long line of Michigan cases which hold that testimony taken at the trial cannot be considered as bearing on the question of the validity of the search and seizure; but only the testimony at the examination and at the hearing on the motion to suppress before trial can be considered in determining whether the search and seizure were valid. In total disregard of this long line of decisions, they have proceeded to give consideration to trial testimony without indicating whether they would overrule this well-settled law of this State. With this method of disposition, I cannot agree.”

See, also, People v. Williams (1962), 368 Mich 494.

At the preliminary examination, the people are required to show that a crime has been committed and that there is probable cause to believe that the accused is guilty of having committed that crime. In the absence of such a showing, the accused cannot properly be bound over by the examining magistrate. (MCLA §766.13 [Stat Ann 1954 Rev § 28.931]); People v. Dellabonda (1933), 265 Mich 486; People v. Karcher (1948), 322 Mich 158; People v. Miklovich (1965), 375 Mich 536; People v. Kennedy (1971), 384 Mich 339.

In this case, the prosecutor and the judges relied on Article 1, § 11, Constitution of 1963, which was declared unconstitutional in People v. Pennington (1970), 383 Mich 611.

The validity of the proviso of art 1, § 11, was in question following Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684; 6 L Ed 2d 1081, 84 ALR2d 933). The conduct of the police officers was directly challenged at the preliminary examination and by two motions to quash. Rather than establishing the legality of their conduct, the prosecutor, in the face of these challenges, elected to stand on the validity of art 1, § 11, and to shield from the scrutiny of the magistrate the basis for the actions taken by the officers against the defendant. To uphold such procedure puts an end to a meaningful judicial examination at the preliminary hearing. The issue was clearly stated in the majority opinion in Beck v. Ohio (1964), 379 US 89, 97 (85 S Ct 223, 13 L Ed 2d 142), in which case Justice Stewart wrote as follows:

“It is possible that an informer did in fact relate information to the police officer in this case which constituted probable cause for the petitioner’s arrest. But when the constitutional validity of that arrest was challenged, it was incumbent upon the prosecution to show with considerably more specificity than was shown in this case what the informer actually said, and why the officer thought the information was credible. We may assume that the officers acted in good faith in arresting the petitioner. But ‘good faith on the part of the arresting officers is not enough.’ Henry v. United States [1959], 361 US 98, 102 [80 S Ct 168, 171; 4 L Ed 2d 134, 138]. If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” (Emphasis added.)

In the light of what was presented to the examining magistrate, it was clearly error to allow the narcotics into evidence to determine probable cause. Since probable cause for the arrest and search was not properly established at the preliminary examination, it begs the question to say that probable cause existed to believe that a crime had been committed. There can be no judicial determination of probable cause unless it is made at the proper stage of the proceedings.

Since there was no showing at the preliminary hearing of probable cause to stop the Pontiac car, the plain view doctrine, even if applicable, could not come into play. Before the doctrine can be invoked, it must be shown the officer was in a place where he had a right to be. See People v. Tisi (1970), 384 Mich 214.

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.¹ This is the showing which should have been made at the preliminary examination in this case, but was not. Unless we require such a showing, the preliminary examination becomes meaningless, and a defendant is forced to stand trial in violation of a proper determination from legally admissible evidence at the preliminary examination stage that a crime has been committed and that there is probable cause to believe he is guilty of it.

There was no showing of probable cause at the preliminary examination in this case. The Court of Appeals and the trial court are reversed and defendant’s conviction is set aside.

T. M. Kavanagh, C. J., and T. G. Kavanagh and Swainson, JJ., concurred with Adams, J.

1 For Federal eases involving the use of informers to establish probable cause, see: Beck v. Ohio, supra; Cochran v. United States (CA 8, 1961), 291 F2d 633; Price v. United States (CA 10, 1959), 262 F2d 684; Aquilar v. Texas (1964), 378 US 108 (84 S Ct 1509, 12 L Ed 2d 723); Spinelli v. United States (1969), 393 US 410 (89 S Ct 584, 21 L Ed 2d 637); Draper v. United States (1959), 358 US 307 (79 S Ct 329, 3 L Ed 2d 327); and McCray v. Illinois (1967), 386 US 300 (87 S Ct 1056, 18 L Ed 2d 62).