People v. Krokker

268 N.W.2d 689, 83 Mich. App. 474, 1978 Mich. App. LEXIS 2332
CourtMichigan Court of Appeals
DecidedMay 22, 1978
DocketDocket 77-1325
StatusPublished
Cited by10 cases

This text of 268 N.W.2d 689 (People v. Krokker) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Krokker, 268 N.W.2d 689, 83 Mich. App. 474, 1978 Mich. App. LEXIS 2332 (Mich. Ct. App. 1978).

Opinions

M. J. Kelly, J.

Defendant was convicted by an Eaton County Circuit Court jury on December 8, 1976, of possession of a controlled substance, heroin. MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). He was sentenced to two to four years in prison and appeals of right.

On February 10, 1976, police officers assigned to the Tri-County Metro Narcotics Squad executed a search warrant for heroin, paraphernalia, and marked money suspected to be in a building occupied by defendant. The search warrant provided that the place to be searched was a "townhouse located at 4152 Seaway Drive, Eaton County, Lansing, Michigan, said townhouse being a brick front, single story, with 4152 address believed to be occupied by Randy Crocker [sic]”.

Deputy Barry Kingsley, one of several police officers who executed this warrant, testified at trial that after gaining entry to the described premises, the police officers secured the area by rounding up [477]*477defendant and two other persons who were also present. Deputy Kingsley searched defendant’s person and removed from his front, left pants pocket a vial containing foil packets. The deputy then conducted a "field test” on the substance contained in one of these packets, and concluded that heroin was present. Defendant was then arrested. Deputy Kingsley testified at trial that he believed that the search warrant specified "persons within the residence” and that this' was his justification for searching defendant.

Defendant’s trial counsel did not move either before or during trial to suppress the vial and packets of heroin seized from defendant’s person. Defendant did not object to the admission of this evidence, nor did he move for a new trial.

On appeal, defendant claims that the seizure of narcotics from his person during a search conducted under the authority of a premises search warrant is illegal, and the failure of his trial counsel to move to suppress the evidence was a serious mistake that deprived him of a fair trial. Ordinarily a motion for new trial would be required as a prerequisite for a claim of ineffective assistance of counsel. Here the facts and circumstances surrounding the search were fully explored at trial and the record contains sufficient facts to reach this issue. See People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

Since we find that the search of defendant and the seizure of the heroin from his person was proper, it follows that defendant was not deprived of a fair trial for failure of his trial counsel to move to suppress the legally obtained evidence.

Generally, when a person is to be searched a search warrant must be obtained describing with particularity the person to be searched in such a [478]*478manner that he may be identified with reasonable certainty. 68 Am Jur 2d, Searches & Seizures, §§ 79, 111, pp 733-734, 766-767, Anno: Sufficiency of description in warrant of person to be searched 49 ALR2d 1209. Case law on the requirements in a search warrant for identification requirements of persons to be searched is sparse. 49 ALR2d at 1210.

The instant search warrant, which defendant asserts was defective to justify a search of his person, described the place to be searched and stated that it was occupied by defendant, but it does not specifically authorize the seárch of defendant. This is contrary to the constitutional requirement set forth in the general rule cited above.

At the request of this Court, the Chief Assistant Prosecutor of Eaton County submitted a letter describing the Eaton County Prosecutor’s policy regarding search warrants issued for places and issued for persons. A copy of this letter was served on defendant’s counsel. The following excerpt from that letter provides an insight into how the instant search warrant was executed. The letter states:

"When structures of any sort are specified in a search warrant, our office and the Courts of this County have another policy regarding the wording of the search warrant and supporting affidavit. The policy is that anything, be it animal, vegetable, or mineral, found within the premises to be searched at the instant the warrant is executed can be searched if it can logically conceal or contain the items specified in the warrant.
"A warrant authorizing the seizure of stolen truck tires may not justify a search of mason jars found in a refrigerator, but a warrant specifying the seizure of heroin would. An item of clothing whether hung on a [479]*479door knob or worn by a person may still contain heroin concealed in a pocket.
"The pockets of a person found upon the premises to be searched are just another 'drawer.’ Any other interpretation would make a person’s pockets a virtual sanctuary for drugs, weapons, or other evidence small enough to be concealed therein. This office does not claim that rectal or vaginal inspections or extraction of other bodily substances are automatically authorized by 'building’ search warrants. Nor does it claim that persons who exit the premises shortly before a search warrant is actually executed or arrive shortly thereafter are 'satellites’ of the premises and subject to search,”

Limited to the present facts we find the clothing search reasonable. It is logical that the pockets of defendant on the premises were suspect as receptacles of heroin small enough to be so concealed. We do not endorse the prosecutor’s opinion that the scope of the warrant would extend to every person found on the premises.

While the Michigan Constitution, Const 1963, art 1, § 11, and the United States Constitution, US Const, Am IV, require warrants for places to be searched and persons to be seized, the United States Supreme Court has determined that a prerequisite to searching the person is the seizure of the person. Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). See also Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), People v Harold Williams, 63 Mich App 398; 234 NW2d 541 (1975).

Since we are dealing with an issue of constitutional magnitude we are careful to point out that we limit our holding to the specific facts of this case. The better procedure in this case would have been to set forth specifically that defendant was a [480]*480person to be searched. We read the warrant in conjunction with the affidavit in support of the search warrant. People v Hopkins, 79 Mich App 723; 262 NW2d 675 (1977).

The affidavit indicates that an informant contacted the affiants, Lansing police officers, and informed them that defendant was selling heroin. The informant had purchased heroin in the past from defendant, and was given marked bills to transact another purchase from defendant. The purchase was made and the heroin returned to one of the Lansing police officers. The informant indicated that he obtained the heroin from defendant at the address set forth in the search warrant.

The information in the affidavit in conjunction with the warrant indicates that both the premises and defendant were considered targets for the controlled substance sought in the search warrant. Defendant was the only person named in the search warrant, in the affidavit, and as the occupant of the house to be searched. Defendant was specifically described and identified, thus negating any indication of a fishing expedition by the police. Cf. Commonwealth v Smith,

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People v. Krokker
268 N.W.2d 689 (Michigan Court of Appeals, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
268 N.W.2d 689, 83 Mich. App. 474, 1978 Mich. App. LEXIS 2332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-krokker-michctapp-1978.