# People v. Wilcox > Michigan Court of Appeals · May 7, 1990 · 183 Mich. App. 616 URL: https://www.frixlaw.com/law-library/cases/9676634 ## Case - **Full name:** People v. Wilcox - **Court:** Michigan Court of Appeals - **Decided:** May 7, 1990 - **Citations:** 183 Mich. App. 616; 456 N.W.2d 421 - **Precedential status:** Published - **Opinion:** Dissent by Griffin - **Judges:** Griffin, P.J., and Reilly and R.B. Burns - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9676634 ## Opinion text Griffin, P.J. (dissenting). The prosecutor ap *622 peals a mid-trial dismissal of the charge against the defendant for possession of marijuana with intent to deliver, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c). I would reverse and remand for trial. i During Officer Terry’s testimony, the defendant moved to dismiss the charge on the grounds that the defendant was arrested in violation of her rights to be free against unreasonable searches and seizures. The mid-trial defense motion to dismiss was primarily focused upon the search warrant which, according to the defendant, was defective because it referred to cocaine rather than marijuana. The lower court denied defendant’s mid-trial motion for dismissal without any discussion other than stating "you’re wrong on that issue.” One hour later, while Officer Terry was still testifying, the trial judge reversed himself and granted dismissal of the case. Although defense counsel raised concerns as to double jeopardy, the mid-trial dismissal was nevertheless consented to by the defendant: Mr. Bass [defense counsel]: I’m in agreement, of course, with the Court’s dismissing this case, but from the viewpoint of the rights of this defendant how—what kind of bearing is that? It is clear from the record that when the trial judge ordered the charge dismissed the judge was seeking an advisory opinion from this Court as to a search and seizure issue. What is not entirely clear is the lower court’s basis for dismissal. During Officer Terry’s testimony, the trial judge sug *623 gested that the police should have arrested "Tim” on July 1, 1988, immediately after the controlled purchase at the residence. It follows that if an immediate arrest had been made on July 1, 1988, the search warrant issued on July 6, 1988, and search of the residence on July 7, 1988, would not have been necessary. In regard to the right of the officers to enter the residence on July 1, 1988, for the limited purpose of arresting "Tim,” the trial judge stated: The Court: ... I think we all agree that you could not go in there and search, but there is a question of whether or not you could go in and arrest. And my feeling is that under these circumstances an officer should have the right to go in that home immediately and arrest a person who is selling drugs. Now, that’s my feeling. In dismissing the case, the trial court specified that he wished an advisory ruling on this issue. By implication, however, the trial judge also ruled that the officers should have entered the residence on July 1, 1988, for the limited purpose of arresting "Tim” and that, therefore, the subsequent search of the defendant on July 7, 1988, was unnecessary and unreasonable. Although the trial judge expressed his personal view that a Fourth Amendment violation had not occurred, he nevertheless dismissed the case by citing a dismissal of an unrelated case by his fellow Recorder’s Court Judge Vera Massey Jones: The Court: . . . And you’ve told me that Judge Jones dismissed your case? The Witness [Officer Terry]: That’s correct. The Court: All right. I’m going to dismiss this one. Mr. Reuther [assistant prosecuting attorney]: *624 Your Honor, I haven’t had the opportunity to ask this officer some questions. I think that I can . . . The Court: No, I want that question settled. I think the police should have that right. II The first issue raised is whether the trial court erred by dismissing the charge. I would hold that, under these circumstances, the court clearly erred by granting the dismissal. The search of the premises pursuant to the search warrant was valid and the buy and subsequent "bust” of the premises were legal. See generally People v Gillam, 93 Mich App 548, 552-553 ; 286 NW2d 890 (1979); MCL 780.653; MSA 28.1259(3). in As to the trial judge’s request for an advisory opinion, we should decline to render such an opinion. Our docket consists of true cases and controversies and we routinely decline invitations to render advisory opinions on issues unnecessary for the disposition of appeals. See Rozankovich v Kalamazoo Spring Corp (On Rehearing), 44 Mich App 426 ; 205 NW2d 311 (1973); Johnson v Muskegon Heights, 330 Mich 631 ; 48 NW2d 194 (1951). iv The final issue raised is whether reinstatement and retrial of the charge would violate the defendant’s constitutional rights against double jeopardy. I would hold that defendant’s constitutional rights would not be violated by reinstatement and retrial. First, I note that a mid-trial dismissal of the *625 charge on Fourth Amendment grounds was sought and requested by the defendant. Although the basis for the dismissal relied upon by the trial judge was not argued by the defendant, the result was advocated by defense counsel. Second, the transcript indicates that although defense counsel expressed concern as to double jeopardy, defendant nevertheless consented to the dismissal. Under such circumstances, I find no double jeopardy violation. See United States v Scott, 437 US 82 ; 98 S Ct 2187 ; 57 L Ed 2d 65 (1978), United States v Dinitz, 424 US 600 ; 96 S Ct 1075 ; 47 L Ed 2d 267 (1976), and People v Dawson, 431 Mich 234, 253 ; 427 NW2d 886 (1988). Accordingly, I respectfully dissent and would reverse and remand for trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9676634. Public record. Not legal advice.