Opinion
Docket No. 50112.
Decided November 19, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Paul G. Bruno, Assistant Prosecuting Attorney, for the people.
Gerald S. Surowiec, for defendant on appeal.
Defendant was arrested on April 30, 1979, and charged with possession of a controlled substance, heroin, MCL 333.7403(2)(a); MSA 14.15(7403)(2)(a). On May 10, 1979, defendant was bound over for trial. The people appeal by leave granted an order of June 29, 1979, quashing the information filed against defendant-appellee, Allen G. Alexander, Jr.
Testimony during the preliminary examination revealed that officer Madison and his partner, in plain clothes, received information that an individual was selling marijuana on the corner of Alfred and St. Antoine Streets in the City of Detroit. Upon arriving at the corner, the officers observed this individual flagging down vehicles and receiving money. When the last car drove away, the officers approached and chased the man who stopped running approximately six feet from defendant.
Officer Madison testified that he observed defendant stuff a manila envelope into the waistband of his pants. Madison and his partner approached defendant, identified themselves as police officers, retrieved the envelope, opened it, and discovered a substance stipulated by the parties to be 9.7 grams of heroin. Officer Madison further testified that he had never retrieved such an envelope which did not contain narcotics.
The question presented on appeal is whether the examining magistrate abused his discretion in binding over the defendant for trial. The test to be applied for review of an abuse of discretion is set out in People v Talley, 410 Mich. 378, 387; 301 N.W.2d 809 (1981), 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.'"
That an observation by police officers of a container such as a manila envelope and a furtive gesture can provide probable cause to believe that a person has a controlled substance in his possession which would justify a search and arrest of that person has been addressed by this Court.
In Wayne County Prosecutor v Recorder's Court Judge, 101 Mich. App. 772, 777-778; 300 N.W.2d 516 (1980), the Court found that
"the arresting officer's observations of the two defendants, his duties as a narcotics officer, his experience and knowledge of the common use of coin envelopes in drug trafficking, his personal observation of the actual delivery and exchange of currency, and the fact that this incident occurred in an area known for its high narcotics activity, were clearly sufficient to support a finding of probable cause."
Although in Alexander's case there was no testimony indicating that defendant exchanged money for the envelope, the other factors were present.
In Wayne County Prosecutor v Recorder's Court Judge, 100 Mich. App. 518; 299 N.W.2d 63 (1980), the point on which the case turned was that the arresting officer testified 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. Further the Court stated:
"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 envelopes of the sort seized from the defendant are not simply innocuous, folded pieces of paper." Id., 519-520.
In the present case, officer Madison testified that he had retrieved envelopes such as that retrieved from the defendant before and that he never had retrieved one that did not contain narcotics.
With regard to the furtive gesture, in People v Young, 89 Mich. App. 753; 282 N.W.2d 211 (1979), the gesture involved was the dropping of a tinfoil packet onto the floor of an automobile. The Court in Young stated:
"This gesture, combined with the suspicion aroused by the tinfoil packet, may have been sufficient to establish probable cause." Id., 762.
The gesture in the instant case, stuffing a manila envelope in the waistband of pants, is more evasive than the gestures in the cases where an item is merely dropped.
In conclusion, the officer's observation of the envelope and his knowledge of the common use of such envelopes in drug trafficking, coupled with defendant's gesture of putting the envelope in the waistband of his pants, constituted probable cause to search and arrest defendant. This Court cannot say, as a matter of law, that the magistrate abused his discretion in binding over the defendant for trial. Thus, the trial court erred in quashing the information.
Reversed and remanded.