Appeal from Recorder's Court of Detroit, Samuel C. Gardner, J.
Danhof, P. J., and McGregor and N. J. Kaufman, JJ.
1. -- Magistrates -- Binding Defendant Over -- Determination of Offense -- Probable Cause.
An examining magistrate may bind a defendant over for trial only if he determines that an offense has been committed and that there is probable cause to believe that defendant committed it.
2. -- Arrest Without Warrant -- Knowledge of Police -- Reasonable Man Test -- Misdemeanor in Presence.
An arrest without a warrant is valid if at the moment of arrest, the facts and circumstances within the knowledge of the policemen were sufficient to lead a reasonable person to conclude that defendant was committing a misdemeanor in his presence.
3. -- Ordinances -- Loitering Where Drugs Illegally Kept -- Elements of Offense.
The material elements of the offense in violation of a Detroit city ordinance of knowingly loitering where drugs or narcotics paraphernalia are illegally kept are (1) loitering, (2) in a place where narcotic drugs or narcotics paraphernalia are illegally sold, dispensed, furnished, given away or stored, and (3) that defendant when loitering in such a place, knew that the narcotics paraphernalia were illegally stored or kept there (Detroit Municipal Code, § 28-8-8).
4. -- Ordinances -- Loitering -- Definition -- Distinguishing Prohibited Activity -- Conduct Deleterious to Public.
"Loitering" by itself implies no wrongdoing or misconduct, and an ordinance prohibiting loitering in certain circumstances must clearly distinguish between prohibited activity and essentially innocent conduct; some conduct deleterious to the public good must be connected to the loitering.
5. -- Arrest -- Probable Cause -- Search Without Warrant -- Incident to Arrest -- Limited Search -- Validity.
There was probable cause to arrest a defendant for loitering in a place where narcotics paraphernalia were illegally kept where police officers could reasonably believe that defendant's presence near clearly visible narcotics paraphernalia was violative of the wide sweep of the ordinance, and a subsequent search without a warrant of the defendant incident to that arrest which was limited to a search for weapons or destructible evidence on the defendant's person and the area within his immediate control was valid (Detroit Municipal Code, § 28-8-8).
The opinion of the court was delivered by: Kaufman
Patrick Morris was charged with carrying a concealed weapon and unlawful possession of heroin. Information ...