Opinion
Docket No. 73184.
Decided October 5, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the people.
Ward F. McDonough, Jr., for defendant.
The people appeal as of right from the trial court's order granting defendant's pretrial motion to suppress evidence and dismissing the case.
A 36th District Court magistrate signed a warrant authorizing the search of a house at 15221 St. Marys in Detroit and a person known as "Pee Wee" on May 12, 1983. The police intended to search for heroin or other controlled substances. Detroit Police Officer William Jasper attested in the affidavit for the search warrant to the following fact:
"1. The affiant is a member of the Detroit Police Department working in conjunction with a Source of Information (SOI 996) that the affiant has used on Seven prior occasions resulting in the arrest of Seven people for Narcotic related offenses, all of which are pending in the 36th District Court.
"2. On May 11, 1983, the affiant met with SOI 996 and formulated plans to make a controlled purchase of Heroin from 15221 St. Marys. The affiant searched the SOI for money and/or narcotics with negative results. The affiant supplied the SOI with SS Funds to make the purchase of Heroin. The affiant observed as the SOI entered 15221 St. Marys and a short time later exit. The SOI then met with the affiant and handed the affiant an amount of suspected Heroin that the SOI stated was purchased from the above described person from within 15221 St. Marys. Again, the affiant searched the SOI with negative results.
"3. On May 11, 1983, the affiant conveyed the suspected Heroin purchased from 15221 St. Marys to the Narcotic Section where PO James Tanderys performed an analysis on the powder and found it to contain Heroin. The affiant then sealed the Heroin into LSF 183807.
"4. Wherefore the affiant has probable cause to believe that Heroin is being stored at and sold from 15221 St. Marys."
When police officers executed the warrant on the same day, May 12, 1983, they saw defendant sitting near a table that had heroin and other drug paraphernalia on top of it. After arresting defendant, officers searched him at the 13th precinct police station and found additional heroin on him. The people charged defendant with two counts of possession of less than 50 grams of a controlled substance, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv). A magistrate bound over defendant to the Detroit Recorder's Court for trial on May 20, 1983.
Defendant moved for an order to suppress all the evidence found as a result of executing the search warrant, arguing that the search warrant was defective. Defendant alleged that the police officer-affiant had not stated any information that could be considered indicia of the unknown informant's reliability or credibility. See 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).
Following arguments at the hearing on the motion, the trial court said:
"The motion to suppress is granted.
"I'm satisfied that the affidavit and search warrant on it's face is clearly deficient under the authority of People versus David [ 119 Mich. App. 289; 326 N.W.2d 485 (1982)].
"If they had gone back on May 11th there's nothing in this search warrant that would show that there might still be more contraband there that people would be willing to sell.
* * *
"If there had been representation not only to this single controlled buy, but that the SOI knew that this was an ongoing criminal enterprise that occurred before that date and that was ongoing and could be reliably made some time immediately after I think it would have been fine."
We reverse because we find that the police officer-affiant's information regarding the single controlled buy formed a sufficiently substantial basis for the magistrate's finding of probable cause to search 15221 St. Marys on May 12, 1983. See People v Gleason, 122 Mich. App. 482, 490; 333 N.W.2d 85 (1983).
Despite the parties' argument otherwise, the reliability or credibility of an unknown informant's information is not at issue here. See Aguilar, supra, and Illinois v Gates, 462 U.S. 213; 103 S Ct 2317; 76 L Ed 2d 527 (1983). The only information offered in the affidavit as a basis to support the warrant is the controlled buy. The affiant participated in that controlled buy. Therefore, no hearsay is at issue.
In David, supra, p 295, upon which the trial court relied, this Court did state that a single controlled buy alone is not enough to establish probable cause to issue a search warrant. However, in David the single controlled buy occurred three days prior to the officer's attempt to obtain the search warrant. This court found the information stale.
In People v Wares, 129 Mich. App. 136, 142; 341 N.W.2d 256 (1983), this Court said that, "[a] series of controlled buys establishes probable cause to believe that a continuing drug sale enterprise is being conducted, absent contrary circumstances ( e.g., staleness, see David, 119 Mich. App. 295)". In Wares, two controlled buys supported probable cause. In concurring specially in Wares, p 144, Judge R.M. MAHER wrote:
"Even if we assume arguendo that the controlled buy in David does not alone establish probable cause to believe that a purchase took place in the trailer, it did establish, I now believe, that the drugs were located in the trailer. To authorize a search warrant the affidavit need only establish probable cause to believe that the items sought are where they are alleged to be. Thus, I now hold that a description of a controlled buy in an affidavit is sufficient to establish probable cause for a search warrant unless circumstances indicate otherwise." (Emphasis in original.)
We agree that the single controlled buy in this case sufficed to form probable cause to search 15221 St. Marys for additional heroin. There was probable cause to believe that there was heroin located in that house. Moreover, we find no staleness in this case. The controlled buy took place on May 11, 1983. The police officer went before the magistrate on May 12, 1983, and executed the warrant that day.
Reversed and remanded.