People v. Orozco

253 N.W.2d 786, 74 Mich. App. 428, 1977 Mich. App. LEXIS 741

• Court: Michigan Court of Appeals
• Decided: March 29, 1977
• Docket: Docket 26419
• Status: Published

Opinions

M. F. Cavanagh, J.

The defendant appeals his bench trial conviction for possession of cocaine with intent to deliver. MCLA 335.341(l)(b); MSA 18.1070(41)(l)(b). We reverse because the principal evidence underlying the charge was unconstitutionally seized.

We adopt the statement of facts of the dissenting opinion with but one exception. We disagree with the dissent’s assertion that our review of the evidence includes the trial testimony of Detective Parks. Defendant’s timely motion to suppress was denied by the district court. When he moved to quash the information in the circuit court, the case was remanded for further testimony by Detective Lester. Upon completion of the district court hearing, the circuit court reviewed the district court record and denied the motion to quash. People v Olajos, 397 Mich 629; 246 NW2d 828 (1976), does not change the well established rule that appellate review of the circuit court’s denial of a defendant’s motion to quash the information is restricted to the evidence presented to the magistrate, regardless of the nature of evidence presented at trial. People v Charles D Walker, 385 Mich 565; 189 NW2d 234 (1971), People v Hall, 375 Mich 187; 134 NW2d 173 (1965), People v White, 276 Mich 29; 267 NW 777 (1936).¹

While we agree that the only manner in which this search could be upheld would be as incident to an arrest, we cannot agree that the authorities had probable cause to arrest.

The informant’s tip was the crux of the authorities’ belief that a crime had been committed and that the defendant had participated in it. The cases from Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), through United States v Harris, 403 US 573; 91 S Ct 2075; 29 L Ed 2d 723 (1971), lay down a double requirement for information from anonymous informants. There must be reason to conclude that the informant was credible and that his information was acquired in a reliable manner. Contrary to the dissenting opinion, we believe that this tip failed both requirements.

The only evidence on the district court record that the informant was a credible source was the police detective’s statement, "[i]t worked out pretty good before, sir”. There are no specifics whatsoever. It is only a translated version of "reliable source”.² While the informant may in fact have provided much reliable information in the past, the prosecutor failed to make the necessary showing._

Moreover, there is nothing in the tip, nor in Detective Parks’ additional testimony at trial, to indicate that the information was gained in a reliable fashion. The corroborated details suggest that the informant may have seen the car and known of its destination, but none of these details indicate how the informant could forecast that the defendant made the trip to engage in a criminal transaction or more importantly, who the driver of the vehicle or defendant would be.³ While corroboration of many physical details would lend credence to a tip that a suspect was carrying contraband, since it would infer that the informant had gained the information by personal observation, cf. People v Chaney, 52 Mich App 474; 218 NW2d 121 (1973), lv den, 390 Mich 813 (1973), corroboration of physical detail does not infer that the informant learned of the suspect’s criminal plans in a reliable manner. Indeed, the dissenting opinion admits that the part of the tip which remained uncorroborated was the only part of the tip which indicated that a criminal transaction was contemplated.

Nor did the observations of the police furnish sufficient other reason to arrest the defendant. Loading an automobile’s trunk and driving away are as consistent with innocent departure as they are with transportation of contraband.

We find the facts in People v Walker, 64 Mich App 138; 235 NW2d 85 (1975), lv granted, 396 Mich 812 (1976), indistinguishable, and agree with that result. The evidence should have been suppressed and the charge dismissed.

D. C. Riley, J., concurred.

1 People v Olajos, 397 Mich 629; 246 NW2d 828 (1976), allows reference to trial testimony only if the trial court has allowed the defendant to reopen the suppression issue by a renewed motion during the trial. In this case, Detective Parks’ trial testimony was not in response to a renewed suppression motion; it came about merely as part of the prosecution’s case.

2 It should be further noted that the basis of the informant’s reliability was even a further step removed from the arresting officer. This "reliable tip” was received by a detective of the Genesee County Sheriffs Department, who, in turn, phoned the Oakland County Sheriffs Department, the arresting agency.

3 Although the people claim probable cause to arrest based upon the given facts, it is interesting to note that the wife of the defendant was with him at all times and, in fact, was the driver of the vehicle. There apparently was hot, however, sufficient probable cause to arrest her as she was released at the scene and not subsequently charged.