People v. Summers

Bashara, J.

(dissenting). I respectfully dissent from my Brothers’ opinion. I believe there was probable cause to arrest the defendant, and that the search of his person was a lawful search incident to an arrest.

In Michigan 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 it”. MCLA 764.15(d); MSA 28.874(d). Each case must be analyzed in light of the peculiar circumstances facing the officer. Wong Sun v United States, 371 US 471, 479; 83 S Ct 407; 9 L Ed 2d 441 (1963), People v Orlando, 305 Mich 686, 689; 9 NW2d 893 (1943).

*586Case law teaches that the police officer makes his determination as to whether the person arrested has committed a felony not as a legal scholar, but as a man of reasonable prudence and caution. People v Harper, 365 Mich 494, 501; 113 NW2d 808 (1962), cert den 371 US 930; 83 S Ct 302; 9 L Ed 2d 237 (1962). Likewise, Draper v United States, 358 US 307, 313; 79 S Ct 329; 3 L Ed 2d 327 (1959), recognized that in assessing probable cause one deals in "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

In the instant case the police were armed with a warrant to search the premises at 9356 Mansfield for narcotics. This indicates the police were aware of narcotics activity taking place at that address.

On entry to the home the police immediately arrested one Calhoun who had attempted to discard a "pack” of heroin. A search of the premises uncovered more heroin in a common area of the home. At that point, although there were approximately six other citizens in the house, the police arrested only the defendant, who had previously admitted that he lived there and was the owner. It was reasonable for the police to infer that he controlled the premises as well as any heroin found there. See People v Hintz, 62 Mich App 196; 233 NW2d 228 (1975).

It is my opinion that the majority has analyzed probable cause under the wrong standard. It is important to remember that a policeman is not a lawyer. He need not analyze the elements of the offense to determine whether there is sufficient evidence to convict. Wong Sun v United States, supra. This is clearly the function of the courts. See People v Davenport, 39 Mich App 252; 197 NW2d 521 (1972).

My Brothers’ reliance on People v Davenport, *587supra, is misplaced. In Davenport, Justice (then Judge) Levin determined there was insufficient evidence to find the defendant guilty beyond a reasonable doubt of possession of narcotics. The drugs were discovered in a common area of a house which was under the joint control of a number of persons including the defendant. This does not mean there was no probable cause to arrest. The quantum of proof needed to convict is greater than that required for probable cause to arrest. Justice (then Judge) Levin recognized the difference in People v Degraffenreid, 19 Mich App 702, 708 n 2; 173 NW2d 317 (1969), when he stated:

"While mere presence, even with knowledge that a criminal offense is about to be or is being committed, is not enough to support a conviction of a person as an aider or abettor under the statute * * * such presence is enough to establish probable cause justifying an arrest.” (Citations ommitted.)

Finally, I cannot agree that Johnson v United States, 333 US 10; 68 S Ct 367; 92 L Ed 436 (1948), is dispositive. In that case the government argued that probable cause existed to arrest once the police discovered the petitioner was the sole occupant of the room. The United States Supreme Court in a five to four decision held that the police illegally gained entrance to the room under color of police authority. Therefore, the arrest could not be justified by any facts that occurred after they gained entrance. The Court did not reach the issue of whether probable cause to arrest existed where petitioner was the sole occupant of a room where narcotics were found. Nor did it reach the crucial issue of the instant case, as to whether there *588would have been probable cause to arrest had there been more than one occupant in the room.

I would reverse the trial judge and reinstate the charges against the defendant.