People v. Talley

301 N.W.2d 809, 410 Mich. 378, 1981 Mich. LEXIS 239

• Court: Michigan Supreme Court
• Decided: February 23, 1981
• Docket: Docket 64037
• Status: Published

Opinions

Per Curiam

(to reverse and remand). There are two issues in this case. The first is whether the trial court, relying solely on the preliminary examination transcript, correctly quashed the information against the defendant on the theory that the testimony of the sole witness before the examining magistrate was "inherently incredible”: the defendant argues that no one would wait until the last minute, as the police were reaching his or her car, to secrete narcotics after having been followed by these same officers for some distance. The examining magistrate chose to believe the officer rather than defendant’s argument. The second issue is whether the Court of Appeals, though doubtful of the validity of the trial court’s quashing of the information, correctly affirmed the trial court on the basis of defendant’s Fourth Amendment illegal seizure argument, although the trial court never looked beyond the record of the preliminary examination and the suppression argument had not been the articulated basis of the trial court’s decision to quash.

As to the trial court’s quashing of the information, we find such action to have been erroneously taken. The examining magistrate did not abuse his discretion in finding probable cause to bind defendant over on the charged offense. Regarding the Court of Appeals affirmance of the trial court due to its own determination of the unconstitutionality of the seizure of the evidence, we hold such determination to have been misdirected since the pretrial hearing on defendant’s motion was not only devoid of any relevant discussion or consideration relating to the existence of probable cause to seize the evidence, but more particularly was made on the basis of the preliminary hearing transcript and not on a full evidentiary hearing. We specifically disapprove of the practice of relying exclusively on preliminary examination transcripts in the conduct of suppression hearings. Accordingly, in lieu of granting leave to appeal, and pursuant to GCR 1963, 853.2(4), we reverse the judgment of the trial court and vacate the judgment of the Court of Appeals and remand the matter to the trial court for the holding of a de novo evidentiary hearing to resolve the issue of whether the arresting officers had probable cause to seize the evidence.

I. Facts

The sole factual exposition of the events surrounding defendant’s arrest and the seizure of the evidence was that of Officer James Henry, one of two officers arresting the defendant and the only person to testify at defendant’s preliminary examination. According to Officer Henry, he and his partner observed the car in which defendant was riding as a passenger speeding. They pursued the car in a marked scout car for several blocks, pacing its speed, but staying about three quarters of a block behind, before they signaled it to pull over after coming up to it at a stop sign. The car in which defendant was riding then proceeded almost another full block before it could find a spot in which to pull over. Officer Henry then testified that as he approached the car on the driver’s side and his partner approached on the passenger’s side, he observed defendant drop to the floor of the car a brown paper bag protruding from which he could see a large plastic bag containing green coin envelopes. The defendant then, according to Officer Henry, attempted to "kick” the bag under the seat with his left hand. Based on the officer’s prior experience with coin envelopes as a means of packaging narcotics, the defendant and the driver were thereupon ordered out of the vehicle and the bag was seized from the car. Upon opening the brown bag at the scene the officers found it to contain three large plastic bags with a total of 230 green coin envelopes dispersed among the three bags. After opening one of the green coin envelopes and finding it to contain an off-white powder which they suspected to be heroin, the officers arrested the defendant. It was stipulated at the preliminary examination that 60 of these coin envelopes, representing a sampling from all three plastic bags, were found to contain heroin. The defendant was charged with possession of heroin with intent to deliver. MCL 333.7401; MSA 14.15(7401).

At defendant’s preliminary examination defense counsel argued that the defendant should not be bound over since the testimony of Officer Henry was "inherently incredible”. According to defense counsel it was beyond belief that two men possessing a bag containing a quantity of heroin would wait until the officers were right next to their car before one of them would attempt to secrete it, despite the fact that they had been paced for several blocks by a marked scout car containing two uniformed officers, that they had proceeded for almost one full block after being signaled by the police to pull over, and that they had to wait for the officers to get out of their car which had been parked five feet behind their own and approach them on foot. The examining magistrate, however, chose to believe the testimony of Officer Henry and bound defendant over for trial on the charged offense.

Following the preliminary examination the defendant filed a pretrial motion which he entitled "Motion to Suppress the Evidence and Quash the Information”. However, at the outset of its hearing on this pretrial motion, the trial court characterized it simply as one to "quash information”, and concerned itself throughout the hearing almost exclusively with the credibility of Officer Henry, the officer who testified at the preliminary examination. There was no consideration at this hearing as to the suppression of the heroin as a matter of constitutional law, no one addressing the issue whether, even assuming the facts as related by the officer were true, there was or was not probable cause to seize the bag containing the heroin under the "plain view” exception to the warrant requirement. Instead, the trial court found that the examining magistrate had abused his discretion in not finding Officer Henry’s testimony "inherently incredible” and quashed the information for that reason.

The Court of Appeals affirmed the trial court’s decision in a memorandum opinion on the different rationale that the police lacked probable cause to seize the brown bag. Support for this rationale was provided exclusively by citation to People v Young, 89 Mich App 753; 282 NW2d 211 (1979), lv den 407 Mich 877 (1979).

II. Trial Court Review of the Examining Magistrate

As already indicated, following the preliminary examination the defendant filed a pretrial motion to suppress the evidence and quash the information. On the sole basis of its disbelief of Officer Henry’s testimony at the preliminary examination, the trial court did quash, saying:

"A fair reading of the testimony that went into that case makes it inherently incredible that that is the method by which this observation of the bag could have been done.”

In other words, the trial judge substituted his judgment for that of the examining magistrate.

In reviewing the decision of a magistrate to bind over an accused person, the trial court may not properly substitute its judgment for that of the magistrate, but may reverse a magistrate’s decision only if it appears on the record that there has been an abuse of discretion. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 121; 215 NW2d 145 (1974); People v Dellabonda, 265 Mich ; 251 NW 594 (1933). In Dellabonda, this Court stated:

"Primarily the question of probable cause is for the consideration of and determination by the examining magistrate. This Court may not agree with the findings of such magistrate but it has no right to substitute its judgment for his except in case of a clear abuse of discretion.”

Part and parcel of the magistrate’s function of determining whether an offense has been committed and whether probable cause exists for charging the defendant therewith is the duty of passing judgment on the credibility of witnesses. People v Paille #2, 383 Mich 621, 627; 178 NW2d 465 (1970); People v Karcher, 322 Mich 158, 164; 33 NW2d 744 (1948). This was emphasized in Paille #2, where this Court said:

"[T]he magistrate had not only the right but, also, the duty to pass judgment not only on the weight and competency of the evidence, but also the credibility of the witnesses.

"We have often commented upon the fact that the judge who hears the testimony has the distinct advantage over the appellate judge, who must form judgment solely from the printed words.”

Our task in assessing the trial court’s decision to quash the information is to determine whether or not there has been an abuse of discretion on the part of the examining magistrate because, as observed above, a reviewing trial court may only substitute its judgment for that of the examining magistrate where there has been such an abuse. Our standard for review, furthermore, in testing for an abuse of discretion is a narrow one. The classic description of this standard, first articulated in Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959) (a modification of a divorce decree case) and later given a somewhat stricter interpretation in the criminal context by this Court in People v Charles O Williams, 386 Mich 565, 573; 194 NW2d 337 (1972), reads as follows:

"Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.”

See also People v Wilson, 397 Mich 76, 80-81; 243 NW2d 257 (1976); People v Merritt, 396 Mich 67, 80; 238 NW2d 31 (1976).

In passing, a careful reading of the transcript of the pretrial motion to suppress the evidence and quash the information reveals that the trial judge may indeed have misapprehended the preliminary examination testimony. The trial court speaks twice of the defendant "being chased several blocks” (emphasis supplied), whereas the witness’s testimony at the preliminary examination was that the police "paced” the car and were three-quarters of a block behind it. The police, in fact, did not use blinkers or siren until they reached the pursued car at a stop street, after which the pursued vehicle went about a block farther before it could pull over. In other words, until the police were almost upon the defendant and his companion and shortly before the ultimate stop, it is entirely possible that neither person knew they were being pursued. Under this set of facts, the time in which the defendant had an opportunity to decide what to do with the brown paper bag containing the green coin envelopes is appreciably shorter than if he had been involved in a car chase for several blocks, as it seemed the trial court envisioned.

In any event, we cannot say a magistrate who had the opportunity to hear Officer Henry’s testimony and observe his demeanor abused his discretion, as a matter of law, in giving credence to the officer’s testimony and in ordering the defendant bound over for trial.¹

III. Appellate Court Review

The Court of Appeals, while having "serious doubts” regarding the trial court’s finding, on the basis of a simple review of the preliminary examination transcript, that Officer Henry’s testimony was "inherently incredible”, affirmed the trial court’s decision on the theory that the trial court should have suppressed the heroin from evidence on the authority of People v Young supra.

However, we are here not primarily concerned with the precedential value of Young. What really concerns us in this matter is that the Court of Appeals would presume under the circumstances of this case to affirm the trial court on the basis that the evidence should have been suppressed. Not only was the probable cause issue not explicitly passed upon by the trial court, but the circumstances of this case, of course, are that whatever action the trial court did or did not take, it did so on the basis of the preliminary examination record alone.

Even had the trial court chosen to give express consideration to the constitutionality of the seizure, it could not properly have decided whether or not the evidence should have been suppressed without a full evidentiary hearing — listening to witnesses and judging other evidence — to determine whether or not the seizing officer had probable cause to seize the evidence. Since the trial court did not have such a full evidentiary hearing it would have no way of knowing whether the facts in the case authorized or did not authorize the officer to seize the evidence. For the Court of Appeals to presume to rule on the merits in such an absence of proper procedure requires this Court to point out to that Court and all trial courts that a motion to suppress evidence requires the holding of a full evidentiary hearing and any attempt to rule on such a motion on the basis of a preliminary examination transcript alone is inadequate and erroneous.²

Since a trial court has not yet had an opportunity to examine the totality of circumstances surrounding the contested seizure with an eye toward determining the existence or absence of probable cause, we remand for an evidentiary hearing on defendant’s motion to suppress to help insure the constitutionally correct resolution of this issue.

The hearing upon remand is to be a de novo inquiry into the constitutional validity of the contested seizure. The trial court in this case, and all other trial courts in the conduct of all future suppression hearings, shall not place exclusive reliance on the preliminary examination transcript in the determination of the legality of a contested search or seizure.³

The defendant presents here what is essentially a bifurcated argument respecting the constitutionality of the seizure. First, defendant still maintains that the allegations of the arresting officers are "inherently incredible”. While at heart this is a factual matter involving credibility concerns, it is a matter whose resolution is of constitutional dimensions. To disbelieve the testifying officer’s account of the chain of events leading up to the seizure of the heroin is, in substance if not in form, to determine that the evidence in question was seized in some manner other than through "plain view”. Since no other constitutionally justifying circumstances, as, for example, consent, are advanced for the warrantless seizure of the evidence, one can only infer, if one disbelieves the testifying officer, that the evidence was seized impermissibly. In light of this we believe the trial court should have the opportunity to view firsthand the demeanor of the officer as he relates his version of the circumstances surrounding the contested seizure and to pass anew on his credibility. Other witnesses, too, may either corroborate or diminish Officer Henry’s testimony. The trial court cannot properly assess credibility from the cold record prepared at the preliminary examination. A suppression hearing, unlike a hearing to quash an information due to an alleged magisterial abuse of discretion, is not to be limited to the record of the preliminary examination. In short, at a suppression hearing the trial court may choose to believe or not believe the "plain view” account of the officer, or may choose to believe another proffered version of the relevant events in determining whether to suppress the seized evidence. This action does not reflect upon the effect of the magistrate’s decision in the binding over, where another rule of review obtains.

Second, defendant also argues that there was no probable cause supporting the warrantless seizure of the evidence even if Officer Henry’s story is to be believed. Here it is not the facts per se that are in dispute, but the legal conclusion to be drawn from these facts, i.e., did the factual situation, as recounted by Officer Henry, give the police probable cause to seize the evidence. Nonetheless, a further exposition of certain constitutionally significant factual matters in this case can be of immeasurable aid to the trial court in making its constitutional determination. The factual record prepared at the preliminary examination may, for numerous reasons, be found critically wanting when analyzed for purposes of a motion to suppress. For example, the preliminary examination may have focused on facts surrounding actions not especially helpful to a constitutional determination or it may prove to be too skeletal to benefit a suppression hearing due to inadequate time for preparation of counsel or to counsel’s fear of disclosing his or her case at the preliminary examination. Cf. People v Olajos, 397 Mich 629, 634-635; 246 NW2d 828 (1976). See, also, California v Green, 399 US 149, 189; 90 S Ct 1930; 26 L Ed 2d 489 (1970) (Brennan, J., dissenting). By requiring a de novo evidentiary hearing on remand, the trial court will have an opportunity to fully weigh the nature of the furtive gesture, as well as such "other factors” as the workaday knowledge and experience of the arresting officers, and any other relevant facts the prosecution may choose to advance. See People v Howell, 394 Mich 445, 447; 231 NW2d 650 (1975).⁴

Accordingly, in lieu of granting leave to appeal, and pursuant to GCR 1963, 853.2(4), we vacate the Court of Appeals affirmance of the trial court and remand this matter to the trial court for an evidentiary hearing on the issue of probable cause for purposes of the motion to suppress. In so doing, we do not intend to intimate any view as to the substantive merits of defendant’s motion to suppress the evidence.

Coleman, C.J., and Kavanagh, Williams, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred_

1 It is also noteworthy that the only case which defendant cites in support of his contention that the testimony of Officer Henry was "inherently incredible”, Henry Jackson v United States, 122 US App DC 324, 326-327; 353 F2d 862, 864-865 (1965), is clearly not in point. Jackson involved appellate review of a bench trial, not trial court review of an examining magistrate. Jackson, additionally, was correctly decided under a "clearly erroneous” standard, applicable in that case to the trial court, and not under an "abuse of discretion” standard applicable in this case to the examining magistrate.

2 Of course, if a witness who testified at the preliminary examination is unavailable to testify at the suppression hearing, the trial court could, of necessity, properly rely on his or her preliminary examination testimony to aid in the determination of constitutionality. Cf. MRE 804.

3 We recognize that it has often been the practice of our trial courts to rely exclusively on preliminary examination transcripts in ruling on motions to suppress. This, of course, meant that appellate courts were also limited to the preliminary examination transcripts in passing on search and seizure issues since testimony later taken on the trial, amplifying the circumstances of the search or seizure, cannot be considered. People v Miller, 245 Mich 115, 117; 222 NW 151 (1928). See, e.g., People v Zeigler, 358 Mich 355, 359; 100 NW2d 456 (1960); People v Kaigler, 368 Mich 281, 297-299; 118 NW2d 406 (1962); People v Miller, 26 Mich App 665, 667; 182 NW2d 772 (1970). Today we specifically prohibit this practice in order to promote a more thorough exposition of the events surrounding a contested search or seizure. This, we hope, will aid the trial courts as well as the appellate courts in drawing the difficult line between the constitutionally permissible search or seizure and the constitutionally impermissible one.

4 The issue of whether opposing counsel may stipulate to the trial court’s sole reliance on a preliminary examination transcript in passing on a motion to suppress evidence is not before us, and we therefore do not consider it.