People v. Larson , 128 Mich. App. 552 ( 1983 )

128 Mich. App. 552 (1983) 340 N.W.2d 324

PEOPLE
v.
LARSON

Docket No. 67222.

Michigan Court of Appeals.

Decided August 11, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Michael J. Kusz, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.

Bradley Seidel, for defendant on appeal.

Before: CYNAR, P.J., and J.H. GILLIS and WAHLS, JJ.

PER CURIAM.

Defendant Lavonne Susan Larson appeals as of right her jury conviction of possession of marijuana with intent to deliver, MCL 333.7401, subds (1), (2)(c); MSA 14.15(7401), subds (1), (2)(c).

Defendant was arrested the night of June 8, 1982, when the Iron Mountain police arrived at her home armed with a search warrant. The search of defendant's home revealed a large quantity of marijuana and numerous other items and paraphernalia connected with the drug trade.

Prior to trial, defendant moved to suppress the introduction of the evidence seized on the ground that the search warrant was defective. This motion was denied by the trial court on September 2, 1981.

On appeal, defendant once again challenges the sufficiency of the search warrant. In particular, defendant contends that ¶ 3 of the affidavit in support of the search warrant, which purports to set forth the facts establishing probable cause for the search, is insufficient. Paragraph 3 of the affidavit states as follows:

"Affiant is Lt. with Iron Mt. Police. On June 8, 1982, at approximately 9:30 p.m. confidential informant advises affiant that informant purchased 1/2 oz. of marijuana from Roy Recla at 206 West Flesheim. Affiant searched informant prior to entering Recla apartment and found no controlled substances. Informant was continually observed by affiant or fellow officers going into Recla apartment and returning. When informant returned he had baggie with approximately 1/2 oz. of marijuana as field tested by affiant. Informant advises that Recla left his apartment to go to "Lavonne's" to secure marijuana. Fellow officers observed Recla go to above described residence stay for approximately 15 minutes and leave and return to Recla apartment where informant advises he then had baggie of marijuana which he sold to informant."

Defendant asserts that the affidavit, based in a large part on hearsay information provided by an unnamed informant, fails to establish probable cause to issue a search warrant under the so-called "two-pronged test" developed by the United States Supreme Court 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), and applied by the Michigan Supreme Court in People v Walker, 401 Mich. 572; 259 NW2d 1 (1977).

Recently, however, in Illinois v Gates, ___ US ___; 103 S. Ct. 2317; 76 L. Ed. 2d 527 (1983), the Supreme Court rejected the use of a rigid formula in favor of a "totality of circumstances" approach in determining when an informant's tip, and corroborating circumstances, provide the probable cause necessary to secure a warrant:

"[W]e conclude that it is wiser to abandon the ``two-pronged test' established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations. See Jones v United States [362 U.S. 257; 80 S. Ct. 725; 4 L. Ed. 2d 697 (1960)]; United States v Ventresca [380 U.S. 102; 85 S. Ct. 741; 13 L. Ed. 2d 684 (1965)]; Brinegar v United States [338 U.S. 160; 69 S. Ct. 1302; 93 L. Ed. 1879 (1949)]. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ``veracity' and ``basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ``substantial basis for * * * conclud[ing]' that probable cause existed. Jones v United States, supra, 362 U.S. 271. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli." ___ US ___; 103 S. Ct. 2332; 76 L. Ed. 2d 548. (Footnote omitted.)

We have no difficulty in concluding that the totality of circumstances in this case provided the magistrate with a substantial basis for concluding that there existed a fair probability that marijuana would be found in defendant's residence.

The affidavit described what is known as a controlled buy. The information did not come from an anonymous tipster, but from an individual, although unnamed, who had worked directly under the control and supervision of the police. The individual was not insulated by anonymity from confrontation by the police, for whom he had worked, in the event the information he provided proved inaccurate or fabricated.

The informant's assertions were to a large extent corroborated by independent observations by police. That marijuana was obtained in the Recla residence was established beyond a fair probability by the fact that the agent was checked by police before he went in and did not possess any controlled substances. The informant's statement that Recla had to go to defendant's residence to secure the marijuana, police observations of Recla making the trip to that location, and Recla's providing the informant with marijuana immediately upon returning are sufficient circumstances from which the magistrate could conclude that there existed a "fair probability" that marijuana would be found at defendant's residence.

There are, perhaps, "innocent" explanations consistent with the activities observed by police. Cf. People v David, 119 Mich. App. 289; 326 NW2d 485 (1982). However, considering the events sequentially, in conjunction with the informant's information, we conclude that the flexible standard established in Illinois v Gates, supra, was met in this case.

Affirmed.