People v. Small

242 N.W.2d 442, 67 Mich. App. 580, 1976 Mich. App. LEXIS 1272

• Court: Michigan Court of Appeals
• Decided: March 8, 1976
• Docket: Docket 19891
• Status: Published

Opinions

V. J. Brennan, P. J.

Defendant Steven Gregory Small was convicted on March 12, 1974, at a trial by jury of possession with intent to deliver a controlled substance [MCLA 335.341(l)(b); MSA 18.1070(41)]. The controlled substance in question was approximately 33,600 tablets of lysergic acid diethylamide (LSD). Defendant was sentenced on April 4, 1974 to from two to seven years in prison. He appeals as of right from that conviction.

Defendant claims his arrest was not supported by sufficient probable cause and, therefore, the search incident thereto was invalid. The record in this case amply supports a finding that the police officers had probable cause to arrest when they took the defendant into custody on June 5, 1973. The arrest followed an extensive investigation by the Michigan State Police, during which time Trooper Larry Harju had made a number of purchases of LSD from one Diane Lynn Stoffer. On numerous occasions Stoffer had mentioned that her supplier was a man by the name of "Greg”. Clearly, the police conducted their investigation in such a manner as to find and arrest this "Greg” with enough evidence to convict. The investigation disclosed that on all previous occasions Stoffer had obtained the LSD from 11380 Roepke Road, a farm some eight miles distant from Chelsea. On one or more occasions she had gone to the Roepke Road farm house to procure LSD for Trooper Harju but returned without the LSD stating to Trooper Harju that "Greg” was not there and consequently she was unable at that time to deliver the drugs. On at least one occasion the officers observed a reddish-orange Camaro at 11380 Roepke Road.

Trooper Harju contacted Stoffer on June 5, 1973 and stated that he wanted to buy a large quantity of LSD. Stoffer said that she would have to contact "Greg” to see if that quantity was available. At 11 p.m. that evening, Trooper Harju went to Stoffer’s residence and was informed that "Greg” was holding 30,000 pills for him. Trooper Harju paid Stoffer approximately $2,900 in marked currency and Stoffer left her residence at about 11:36 p.m. to meet "Greg” and return with the LSD saying that she would be back at midnight. Police had every reason to believe that Stoffer was on her way to make an immediate "buy”. A surveillance team was in constant sight of Stoffer’s vehicle except for a period of some five to ten minutes during which time the officers described the route which Stoffer took to be a "cleaning” maneuver designed to avoid and lose any possible surveillance. A member of the surveillance team then spotted Stoffer’s car in a parking lot parked next to a Camaro which fit the description of the automobile previously seen by the police at the Roepke Road farm. They then observed Stoffer and defendant emerge from a supermarket carrying bags of groceries, proceed to the trunk of the Camaro and open it. The police officers testified that they then moved in and made an arrest of Steven Gregory Small and Diane Lynn Stoffer at approximately 11:50 p.m.

Defendant says that there are possible innocent explanations which would account for defendant’s association with Stoffer that evening, pointing out that the police did not know about the defendant at the time of the arrest, and that for all the police knew, "he was simply a man seen walking out of a grocery store with a woman who was expected to contact a narcotics supplier sometime that evening”. We cannot agree with this view of the facts. We feel the police were more than justified in a reasonable belief that the defendant was the "Greg” that they had been seeking for the past three and one-half months. The courts of this state require that an arresting officer possess facts which establish probable cause that an individual has committed a felony, not merely vague and general suspicions. The facts of this case clearly warranted more than vague and general suspicions by the police. Our Supreme Court has stated that an arresting officer makes his determination of probable cause, "not as a legal scholar determines the existence of consideration in support of a promise, but as a man of reasonable prudence and caution would determine whether the person arrested has committed a felony”. People v Harper, 365 Mich 494, 501; 113 NW2d 808 (1962).

Since the police lawfully arrested the defendant, we hold that the search of the defendant’s trunk which produced the LSD pills was a lawful search incident to an arrest. The defendant had already opened the trunk of the car, and the defendant was standing near the trunk, presumably with the trunk within his reach. Such a search is well within the parameters of proper searches incident to lawful arrests. See Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969).

Defendant contends further that there was reversible error in the prosecutor’s remarks during closing arguments. We disagree. Defendant made no objections to these comments. We will grant that the prosecutor’s remarks were improper as measured by the standard set out in People v Graham, 386 Mich 452; 192 NW2d 255 (1971), and the statement by my brother Chief Judge Lesinski in People v Swan, 56 Mich App 22; 223 NW2d 346 (1974), which warns against prosecutorial reference to a defendant’s silence. But I do not find that the improper arguments were so prejudicial that they could not have been cured by a timely objection and a cautionary instruction. It is well settled in Michigan that reversal based upon improper prosecutorial comments is precluded unless the prejudicial effect is so great that it cannot be cured by timely objection and a cautionary instruction. See People v Charles, 58 Mich App 371, 387; 227 NW2d 348 (1975), and cases cited therein. Defendant is not entitled to a perfect trial, only to a fair one. Michigan v Tucker, 417 US 433, 446; 94 S Ct 2357, 2365; 41 L Ed 2d 182, 194 (1974). MCLA 769.26; MSA 28.1096 provides:

"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case on the ground of * * * error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”

This policy has been followed consistently by the Michigan Supreme Court. People v Howard, 391 Mich 597; 218 NW2d 20 (1974), People v Kregger, 335 Mich 457; 56 NW2d 349 (1953), People v Cooper, 328 Mich 159; 43 NW2d 310 (1950), People v Hawks, 206 Mich 233; 172 NW 405 (1919). Likewise, this Court has consistently agreed. People v Keiswetter, 7 Mich App 334; 151 NW2d 829 (1967), People v Carr, 2 Mich App 222; 139 NW2d 329 (1966).

The record shows clearly enough evidence to sustain this conviction.

Affirm.

D. E. Holbrook, J., concurred.