Opinion
Docket No. 50503.
Decided May 6, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George B. Mullison, Prosecuting Attorney, and Thomas J. Rasdale, Assistant Prosecuting Attorney, for the people.
Craig D. Alston, for defendant on appeal.
Before: BASHARA, P.J., and T.M. BURNS and BEASLEY, JJ.
Defendant was convicted by a jury for conspiracy to deliver a controlled substance and delivery of a controlled substance, contrary to MCL 750.157a; MSA 28.354(1) and MCL 333.7401; MSA 14.15(7401).
Defendant was the owner and driver of a van from which, undercover police officers testified, an illegal drug sale was transacted. The van was seized, and a warrant to search the van was issued on the basis of the affidavit of an officer, who was neither the arresting officer nor one of those working undercover. The search produced incriminating evidence.
Defendant contends that the search of his van was illegal because the supporting affidavit for the warrant was insufficient to establish probable cause. The affidavit was not based totally upon the affiant's own personal observations but upon information relayed to him by fellow police officers. Defendant argues that probable cause could not be based upon this affidavit since it failed to meet the two-pronged test set forth in Aguilar v Texas, 378 U.S. 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), and Spinelli v United States, 393 U.S. 410; 89 S Ct 584; 21 L Ed 2d 637 (1969). Those cases essentially hold that when an affidavit contains hearsay statements of a confidential informant it must show that the tip was accompanied by some of the underlying circumstances upon which the informant based his conclusions. Second, there must be some basis for concluding either that the informant was credible or that his information in the particular instance was reliable.
We do not believe the Aguilar-Spinelli test is applicable to the situation presented here. A number of decisions have held the test inapplicable to information supplied by ordinary citizens. People v Tooks, 403 Mich. 568, 577-578; 271 N.W.2d 503 (1978), People v Harris, 95 Mich. App. 507, 511; 291 N.W.2d 97 (1980), People v O'Brien, 89 Mich. App. 704, 714; 282 N.W.2d 190 (1979), People v Rodriguez, 83 Mich. App. 606, 609; 269 N.W.2d 199 (1978), People v Emmert, 76 Mich. App. 26, 30-31; 255 N.W.2d 757 (1977). These decisions all concur that it would be illogical to place a dutiful citizen in the same category as the professional stool pigeon who is often described as a confidential informant and is often himself criminally disposed. We find no reason to distinguish police officers and ordinary citizens for the purpose of meeting the Aguilar-Spinelli test.
When one police officer receives information from a fellow officer, the law allows him to assume that his source is credible. See United States v Cox, 464 F.2d 937 (CA 6, 1972). Where this information is then presented to a magistrate in an application for a search warrant, the magistrate too may consider the source to be credible.
Of course, the information set forth in an affidavit still must be sufficient to convince the magistrate that there is probable cause to believe that the items to be sought will be found in the place to be searched. The affidavit here stated that the affiant gained his information from two police officers who took part in a planned surveillance and whose function it was to make drug purchases. The magistrate could assume that the two officers had experience in this area and had the ability to sufficiently identify illicit drugs. The affiant further stated that it had been his experience that people who sold drugs out of vehicles often carried other drugs in their vehicles. We conclude that the magistrate had probable cause to believe that a search of defendant's van would produce evidence of marijuana or PCP.
Finally, the standard of review for the issuance of search warrants is succinctly stated in People v Iaconis, 29 Mich. App. 443, 462; 185 N.W.2d 609 (1971): "This Court may not substitute its judgment for that of the magistrate unless there has been a clear abuse of discretion in his determination of probable cause."
Defendant was also convicted of delivery of a controlled substance under § 7401 of the Public Health Code. MCL 333.7401; MSA 14.15(7401). The Michigan Constitution in pertinent part provides, "No law shall embrace more than one object, which shall be expressed in its title". Const 1963, art 4, § 24. Defendant argues that his conviction for delivery is invalid in that the Public Health Code embraces substantially more than one object and that nowhere in its title is there reference to controlled substances or criminal penalties for the sale thereof.
This same argument was recently rejected in People v Trupiano, 97 Mich. App. 416, 420; 296 N.W.2d 49 (1980), lv den 409 Mich. 895 (1980). We believe that drug use and addiction comprise a serious health problem. The proscription against unlawful use, sale, or delivery of those drugs is therefore a related object of the Public Health Code and is embraced by the title which sets forth as its purpose "to protect and promote the public health" and to "provide for the prevention and control of diseases". The title-object clause of the constitution was not designed to prevent the Legislature from simplifying, consolidating, and codifying laws relating to public health. See Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich. 441; 208 N.W.2d 469 (1973).
Defendant also contends that criminal provisions relating to drug sales should more properly be made part of the penal code. This argument was rejected in People v Milton, 393 Mich. 234; 224 N.W.2d 266 (1974). Section 7401 is germane to public health, and the fact that it is also germane to the penal code does not change our decision regarding its constitutionality.
Defendant's conviction is affirmed.
The people's motion to affirm is denied.