People v. Coleman , 100 Mich. App. 587 ( 1980 )

100 Mich. App. 587 (1980) 300 N.W.2d 329

PEOPLE
v.
COLEMAN
PEOPLE
v.
TRICE

Docket Nos. 78-3341, 78-3355.

Michigan Court of Appeals.

Decided October 8, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Linda Berns Wright, Assistant Prosecuting Attorney, for the people.

R. Steven Whalen, Assistant State Appellate Defender, for defendants.

Before: CYNAR, P.J., and M.J. KELLY and T. GILLESPIE,^[*] JJ.

PER CURIAM.

Defendants bring this appeal as of right from their March 23, 1978, jury convictions of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm at the time of commission or attempted commission of a felony, MCL 750.227b; MSA 28.424(2). Both defendants were sentenced to consecutive prison terms of two years on the felony-firearm charge and two to ten years on the armed robbery charge.

Defendants raise one issue which merits discussion. Defendants assert that the trial court erred in refusing to suppress evidence obtained pursuant to a search warrant issued on the basis of unreliable tracking-dog information.

In determining whether or not there is probable cause to issue a search warrant, the magistrate can consider only the information contained in the affidavit made before him. MCL 780.653; MSA 28.1259(3); Aguilar v Texas, 378 U.S. 108, 109, n 1; 84 S. Ct. 1509; 12 L. Ed. 2d 723 (1964). In the present case, the affidavit was made by Deputy Sheriff Marvin Rakowski, who was the first officer on the scene. He reported that upon his arrival on the scene the complainant told him that his restaurant had just been robbed by two men and that the robbers had fled across the street toward the Parkside Apartment complex. One of the robbers fell down within 100 feet of the restaurant after the restaurant owner and one of his employees fired at the robbers. The affidavit further indicated that Officer Letts of the "K-9 Corps" and his tracking dog, Prince, arrived within 30 minutes of the robbery and were directed to the area where the robber had fallen. The robbers' tracks were in an area of ground that had no other fresh human tracks. Officer Letts and Prince in about 13 minutes tracked the footprints to the Parkside apartment at 185 Parkside Court. Prince's actions were observed by the officer making the affidavit. The police officers, by this time five in number, including the officer executing the affidavit, knocked on the door, waited, saw two persons standing by an open window inside the apartment, and, receiving no answer, forced open the door and arrested defendants.^[1] On the basis of the above information, the magistrate issued a warrant to search the apartment, and evidence linking defendants to the armed robbery was found therein.

In Michigan, tracking-dog evidence is admitted at trial with caution and cannot, standing alone, support a conviction. People v McPherson, 85 Mich. App. 341; 271 NW2d 228 (1978). See also People v Perryman, 89 Mich. App. 516; 280 NW2d 579 (1979), People v Norwood, 70 Mich. App. 53, 55; 245 NW2d 170 (1976), Anno: Evidence of trailing by dogs in criminal cases, 18 ALR3d 1221. Strict foundational requirements must be established before such evidence is admitted at trial. Norwood, supra. However, "a finding of probable cause sufficient to justify issuance of a search warrant may rest upon evidence which is not sufficient to justify conviction and which may not be legally competent in a criminal trial because it is only the probability, and not a prima facie showing, of criminal activity that is the standard of probable cause". People v Thomas, 86 Mich. App. 752, 759; 273 NW2d 548 (1978), lv den 406 Mich. 971 (1979). See also Draper v United States, 358 U.S. 307, 311-312; 79 S. Ct. 329; 3 L. Ed. 2d 327 (1959). In Draper, supra, 313, the United States Supreme court explained the concept of probable cause as follows:

"* * * Probable cause exists where `the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v United States, 267 U.S. 132, 162." (Footnotes omitted.)

Furthermore, the Supreme Court, in Spinelli v United States, 393 U.S. 410, 419; 89 S. Ct. 584; 21 L. Ed. 2d 637 (1969), in discussing the use of affidavits to establish probable cause, stated:

"* * * In holding as we have done, we do not retreat from the established propositions * * * that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v Ventresca, 380 U.S. 102, 108 (1965); and that their determination of probable cause should be paid great deference by reviewing courts, Jones v United States, 362 U.S. 257, 270-271 (1960)."

In Aguilar, supra, 109, the affidavit in support of the application for a search warrant indicated only that the affiant had received "reliable information from a credible person" regarding the crime. The Supreme Court set up a two-pronged test. First, although an affidavit may be based on hearsay information, rather than on the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant made his conclusions. Second, the affidavit must also recite some of the underlying circumstances from which the affiant concluded that the informant was credible or his information reliable.

While a tracking dog is not, strictly speaking, an "informant", nonetheless the Aguilar test appears well-suited to assist a magistrate to determine the factual sufficiency of the affidavit supporting the request for such a search warrant.

There is little question in the present case regarding the sufficiency of the underlying circumstances which led Prince to the Parkside Apartments.^[2]

Regarding the second prong of the Aguilar test, the only information in the affidavit regarding Prince's credibility is that indicating that Prince was the tracking dog assigned to Officer Letts of the police department's K-9 Corps. The trial court concluded that this information indicated that Prince had the "qualifications to be a tracking dog". This Court agrees and finds that the information establishing Prince's credibility in the present case, though sketchy, was more substantial than the affidavit information regarding the informant's credibility in Aguilar.

Furthermore, in Spinelli, supra, 415-416, the Supreme Court stated that corroboration of an informant's tip can serve to establish probable cause even if the two parts of the Aguilar test are not satisfied completely. The other information contained in the affidavit in the present case corroborates the information supplied by Prince that the robbers were in an apartment at 185 Parkside Court. That information and the sequence of events recited is sufficient corroboration to lead to a conclusion that the affidavit in the present case did establish probable cause for the magistrate's issuance of the warrant. Defendants' motion to suppress evidence was properly denied.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] The affidavit also indicated that after entering the apartment, and while arresting defendants, the affiant observed that defendant matched the description given by the complainant. Defendants argue that their arrest was without probable cause and thus that the magistrate improperly considered the matching description information in deciding to issue the search warrant. However, if the information contained in the affidavit regarding events prior to the entry and arrest is sufficient to establish probable cause for the search warrant, then it also is sufficient to establish probable cause for the arrest. In addition, the trial court held that without regard to any incidents of the arrest the affidavit established probable cause. See Franks v Delaware, 438 U.S. 154; 98 S. Ct. 2674; 57 L. Ed. 2d 667 (1978), United States v Grunsfeld, 558 F2d 1231 (CA 6, 1977).

[2] The Spinelli Court indicated that this first prong of the Aguilar test, the manner in which the information was gathered, is perhaps more important than the second prong.