Wayne County Prosecutor v. Recorder's Court Judge
Wayne County Prosecutor v. Recorder's Court Judge
Dissenting Opinion
(dissenting). On the evening of December 17, 1977, Richard Lewis was arrested and charged with possession of heroin with intent to deliver. MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). At the conclusion of his preliminary examination on January 30, 1978, the charges lodged against Lewis were dismissed by the magistrate who suppressed the sole incriminating evidence against defendant. Pursuant to a writ of superintending control, the prosecutor sought review of the magistrate’s decision, and in an opinion dated May 31, 1979, the circuit court denied relief. The people now appeal.
Our examination of the record discloses that, on the evening of December 17, 1977, Detroit police officers were called to the Pallister Motel and told that there were unauthorized persons using one of
In his February 1, 1978, opinion suppressing this evidence and dismissing the case, the magistrate held that the police officer’s actions were unreasonable in that his confiscation and search of the envelopes was not based upon probable cause but, rather, on mere suspicion. I agree.
This Court will not reverse a ruling suppressing evidence unless that ruling is found to be clearly erroneous. People v Young, 89 Mich App 753; 282 NW2d 211 (1979). In People v Falconer, 76 Mich App 367; 256 NW2d 597 (1977), this Court held that a magistrate did not err in suppressing evidence where the sole ground for the arrest of the defendant and the subsequent search that uncovered the evidence was a police officer’s suspicion that manila coin envelopes contained narcotics. The Court reasoned that a police officer’s suspicion that manila coin envelopes, which were being exchanged by the defendant for money, contained narcotics did not of itself constitute probable cause either for the arrest of the defendant or a search of the defendant’s car. See also, Young, supra, People v Reeves, 23 Mich App 183; 178 NW2d 115 (1970).
Unlike the situation in the cases of People v Ridgeway, 74 Mich App 306; 253 NW2d 743 (1977), where this Court held that the police did have
Whether the magistrate believed that the police officer’s prior experience with "coin envelopes” did not give rise to probable cause to seize the envelopes under the facts in this case or whether he simply chose to discount the credibility of the police officer, I do not know. In any event, I cannot say that the magistrate clearly abused his discretion when he held that this evidence was illegally obtained and dismissed this case. The mere seeing of coin envelopes, with nothing more, may give rise to some suspicion that criminal activity may be afoot, but suspicion alone is insufficient. The Constitution requires probable cause.
I would affirm.
Opinion of the Court
The facts are well stated in the dissenting opinion and need not be repeated here. The issue in this case is whether the magistrate’s decision to suppress the sole incriminating evidence in this case was clearly erroneous. In this regard, we believe the point on which this case turns is the testimony of the arresting officer, who stated that he had encountered coin envelopes of the type seized here 800 or 900 times in the same general area during his experience as a police officer and that such envelopes usually contained heroin. Based on this testimony, which is additionally supported by a countless number of cases yearly confronting both the trial and appellate bench, it is or should be clear by now that coin
This Court stated in People v Ridgeway, 74 Mich App 306; 253 NW2d 743 (1977), lv den 401 Mich 831 (1977), that an officer’s knowledge that tinfoil packets often contained narcotics provided the strongest support for a finding of probable cause to seize such a packet. Although it is true that the officers in Ridgeway also smelled the odor of burning marijuana, the significance of this added factor' was slight. Id., 313-314. See People v Young, 89 Mich App 753, 764-766; 282 NW2d 211 (1979), lv den 407 Mich 877 (1979) (Gillis, J., dissenting).
Accordingly, we hold the magistrate’s decision to suppress the evidence to be clearly erroneous. Based on the testimony presented, the officer had probable cause to seize the coin envelopes.
Reversed.
Reference
- Full Case Name
- Wayne County Prosecutor v. Recorder’s Court Judge; (People v. Lewis)
- Cited By
- 6 cases
- Status
- Published