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04/26/76 PEOPLE v. SUMMERS

April 26, 1976


Appeal from Recorder's Court of Detroit, Robert J. Colombo, J.

Leave to appeal applied for.

Bronson, P. J., and Bashara and M. F. Cavanagh, JJ. M. F. Cavanagh, J., concurred. Bashara, J. (dissenting).


Opinion of the Court

1. Searches and Seizures -- Search Warrants -- Magistrates -- Issuance of Search Warrant -- Statutes.

A magistrate is only authorized to issue warrants to search certain places and once a warrant has actually been issued it cannot be broadly interpreted (MCLA 780.651; MSA 28.1259[1]).

2. Searches and Seizures -- Search Warrants -- Particularity -- Serving Officers -- Scope of Search Warrant.

A search warrant must describe, with particularity, the premises to be searched and the property to be seized, and the executing officers must narrowly follow that description; where a magistrate could have issued a warrant to search any individual found on the premises for which a search warrant has been issued, but did not do so, the "particularity" requirement prevented the police officers serving the warrant from legally extending the scope of the warrant so as to authorize a search of a defendant's person.

3. Searches and Seizures -- Search Warrants -- Premises -- Execution of Search Warrant -- Presence Upon Premises.

It is required, at the very least, that a person be present upon the premises being searched in the execution of a valid search warrant for search of the premises before that person can properly be searched without the issuance of another search warrant and where a defendant was stopped outside of a house, which was the subject of a search warrant, by the police officers executing the warrant and taken inside, this factor cannot be found.

4. -- Narcotics -- Possession of Narcotics -- Dwelling House -- Joint Control.

Evidence of joint control of a dwelling house is insufficient to sustain a conviction for knowingly possessing an illicit drug found therein without some further evidence connecting a defendant with that drug.

5. Arrest -- Constitutional Law -- Probable Cause -- Quantum of Proof -- Guilt Beyond a Reasonable Doubt -- Illicit Drugs -- Search of Premises -- Additional Independent Factor.

The quantum of proof in assessing probable cause to arrest is different than for guilt beyond a reasonable doubt, however, there still must be some evidence of the type or quality necessary to support a conviction before probable cause can be established; therefore, where illicit drugs are found during a search of premises owned by a defendant, there must be at least some evidence of an additional independent factor linking the defendant with the drugs, although the weight to be given to the factor need be less to support an arrest than is needed to support a conviction.

6. -- Narcotics -- Defendant's Premises -- Additional Independent Factors.

Independent factors which have been found to link a defendant to drugs found on the defendant's premises include: (1) attempted flight and destruction of the evidence by the defendant; (2) close proximity to the narcotics; (3) the existence of reliable information that the defendant is trafficking in drugs of the type found in plain view; (4) the linking of the defendant directly to the specific property in which the drugs are found, such as through the defendant's admission of its ownership; and (5) knowledge by the defendant of the precise location of the drugs.

7. Arrest -- Constitutional Law -- Narcotics -- Heroin -- Possession -- Owner and Occupant -- Premises -- Search Incident to Arrest.

Police officers lacked probable cause to arrest a defendant for knowingly possessing drugs found in the basement of the defendant's house where the defendant was known to be the owner and an occupant of the house, the drugs were found in an out-of-the-way place in that house, and where there was no other evidence linking the defendant to those drugs at the time of his arrest; therefore, where such an arrest was made without probable cause to arrest, a seizure of heroin found on the defendant's person cannot be justified as the product of a search incident to an arrest.

Dissent by Bashara, J.

8. Arrest -- Arrest Without Warrant -- Peace Officers -- Reasonable Cause -- Felonies -- Statutes.

A peace officer may arrest a person without a warrant when he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed the felony (MCLA 764.15; MSA 28.874).

9. Arrest -- Probable Cause -- Arresting Officers -- Peculiar Circumstances -- Case-by-Case Analysis.

Each case involving the quantum of information which constitutes probable cause to arrest must be analyzed in light of the peculiar ...

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