People v. Powell
People v. Powell
Opinion of the Court
The people appeal by leave granted from an order granting defendant’s motion to suppress evidence obtained pursuant to a search warrant and from an order granting defendant’s motion to admit evidence of the victim’s sexual conduct with third parties in this prosecu
The incident underlying the charges occurred on October 19, 1991. The victim alleged that she was visiting defendant, a neighbor whom she had known for approximately four to five years, at his apartment. When the victim attempted to leave, defendant prevented her from doing so. After threatening her with a club, he sexually assaulted her. Defendant contends that the victim, a prostitute, consented to have sexual intercourse with him and then falsely accused him of sexual assault only because he failed to pay her. We address two issues on appeal: (1) whether the court erred in ruling admissible certain evidence pertaining to the victim’s sexual activities with persons other than defendant and (2) whether the court erred in suppressing evidence obtained pursuant to a search warrant that was determined to be invalid.
I. EVIDENCE OF THE VICTIM’S PRIOR CONDUCT
The court abused its discretion in ruling admissible certain evidence regarding the victim’s employment as a topless dancer and allegations that the victim was a prostitute. The people contend admission of the evidence will violate the rape-shield statute, MCL 750.520j; MSA 28.788(10), while defendant argues preclusion of the evidence will violate his constitutional right to confront witnesses. The lower court found the rape-shield statute applicable, but ruled the evidence could be admitted because it was "material to a fact at issue,” defendant’s consent defense, and "the prejudicial nature [did] not outweigh its probative
Enactment of the Michigan rape-shield statute reflected the Legislature’s determination that, in the overwhelming majority of prosecutions, evidence of a rape victim’s sexual conduct with parties other than the defendant, as well as the victim’s sexual reputation, is neither an accurate measure of the victim’s veracity nor determinative of the likelihood of consensual sexual relations with the defendant. People v LaLone, 432 Mich 103; 437 NW2d 611 (1989); People v Wilhelm (On Rehearing), 190 Mich App 574; 476 NW2d 753 (1991); People v Lucas (On Remand), 193 Mich App 298; 484 NW2d 685 (1992). Thus, the statute precludes all evidence of specific instances of a victim’s sexual conduct, as well as opinion and reputation evidence of the same, except that a defendant may introduce evidence of the defendant’s past sexual conduct with the victim or evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease, if the evidence is material and its prejudicial effect does not outweigh its probative value. MCL 750.520j(l); MSA 28.788(10)(1). However, recognizing that application of the statute’s evidentiary exclusion might in some instances violate a defendant’s Sixth Amendment right to confrontation, our Supreme Court has indicated that such evidence may be admissible when offered for the narrow purpose of showing a victim’s bias or motive for filing a false claim. People v LaLone, supra; People v Hackett, 421 Mich 338; 365 NW2d 120 (1984).
Moreover, we find defendant’s remaining evidence considerably more prejudicial than probative. The person who viewed the victim in the company of alleged prostitutes testified that he did not know whether the women were in fact prostitutes. In any event, he had never heard anything bad about the victim’s reputation. Likewise, defendant’s self-serving testimony that two months after the crime, he witnessed the victim allegedly
II. SUPPRESSION OF EVIDENCE—SUFFICIENCY OF AFFIDAVIT
We next conclude that the court erred in suppressing the fruits of . the search of defendant’s apartment. The crime occurred just before noon; the warrant was procured the same day. The search warrant affidavit did not explicitly state that the victim herself was the source of the information. However, a common-sense reading of the affidavit, taken as a whole, establishes that the named victim was the actual source of the allegations underlying the search warrant affidavit. A crime victim, in contrast to an underworld informant, is presumptively reliable. Additionally, the victim’s reliability was proven by the self-authenticating details of the crime contained in the affidavit. Accordingly, MCL 780.653; MSA 28.1259(3), as amended by 1988 PA 80, was satisfied.
The affidavit states that the affiant, a Flint police sergeant with ten years experience, was investigating a criminal sexual conduct case earlier that day at the defendant’s apartment. The affidavit then identifies the complainant by name. It stated that the complainant visited the defendant’s apartment, her neighbor of four years. After talking and drinking gin with him for about forty-five minutes, the complainant asked him for her
Pursuant to MCL 780.653; MSA 28.1259(3), an affidavit may be based upon information supplied by a named or unnamed source. If the source is named, the affidavit need only contain affirmative allegations that permit the magistrate to conclude that the source had personal knowledge of the facts alleged. If the source is unnamed, allegations in the affidavit must show that the source is credible or that the information is reliable.
A common-sense reading of the affidavit, taken as a whole, yields the conclusion that the affiant obtained her information directly from the named crime victim. The victim was not an "unidentified informant” in the classical sense. Neither police officers nor identified crime victims are subject to the requirements once applied to confidential informers from the criminal milieu under Aguilar/ Spinelli.
Alternatively, if we apply the second prong of the statute, and conclude that the source is unnamed, reliability of the information is established by the self-authenticating details in the search warrant affidavit. The affiant gave a thorough and particularized description of the crime. These details alone establish reliability. United States v Mahler, 442 F2d 1172 (CA 9, 1971). In McCreary v Sigler, 406 F2d 1264, 1269 (CA 8, 1969), the Eighth Circuit Court of Appeals, in discussing the probable cause analysis for an unknown informant, recognized that reliability may be established by the nature of the facts alleged:
Under such circumstances, reliability of an informant may best be established by the affiant relating some corroboration of the story which the informant tells. Furthermore, the underlying circumstance (sic), even without corroboration, may have built-in credibility guides to the informant’s reliability. The essence of reliability may be found in an informant’s statement of facts rather than an allegation of mere conclusory suspicion. An informant who alleges he is an "eye witness” to an actual crime perpetrated demonstrates sufficient*524 "reliability” of the person. . . . Probable cause for an arrest may exist where the unknown citizen makes complaints, as a victim or eyewitness to a crime, where the underlying circumstances demonstrate his firsthand knowledge. [Citations omitted; emphasis added.]
The McCreary court pointed out that Aguilar/Spinelli related only to the problems of informants from the criminal underworld and to arrests based on mere suspicion because of the target’s general reputation. Id. at 1268. Neither situation is present in this case.
III. SUPPRESSION OF EVIDENCE—MITCHELL
I write part in separately because I also conclude that the circuit court could have entertained the prosecutor’s offer of proof that the affiant testified under oath at the time the warrant affidavit was presented that the rape victim herself was the source of the allegations in the affidavit.
Further, in light of the amendments contained in 1988 PA 80, the intervening federal precedent relating to the exclusionary rule, and the continuing refinement of the supervisory powers doctrine in the nine years since People v Sherbine, 421 Mich 502; 364 NW2d 658 (1984), was decided,
A. ABSENCE OF FOURTH AMENDMENT VIOLATION
As a preliminary matter, I conclude that a procedure permitting reconstruction of oral testimony actually heard by the authorizing magistrate would not offend the Fourth Amendment. Aguilar v Texas, 378 US 108, 109, n 1; 84 S Ct 1509; 12 L Ed 2d 723 (1964), recognized that in assessing the validity of a warrant, a reviewing court should consider only information brought to the magistrate’s attention. Whiteley v Warden, 401 US 560, 565, n 8; 91 S Ct 1031; 28 L Ed 2d 306 (1971), suggests that an otherwise insufficient affidavit can be rehabilitated by sworn oral testimony presented during the warrant application process. By contrast, an insufficient affidavit can never be rehabilitated if the information was not disclosed to the issuing magistrate. These precautions guarantee that the central purpose of the Fourth Amendment will be served. That is, a neutral and detached magistrate reviews an investigator’s determination of probable cause.
The United States Supreme Court, however, has not directly decided whether and under what circumstances oral information can supplement a written search warrant affidavit. Numerous federal circuit courts, however, have held that the Fourth Amendment does not require a written sworn statement supporting the application for a search warrant. The government may prove that the issuing magistrate had oral information, apart
In United States v Hill, supra at 322, the Fifth Circuit Court of Appeals allowed supplementation of the affidavit with oral testimony and declined to exclude relevant evidence:
[T]his situation furnishes no occasion to apply the exclusionary rule to bar the evidence of Hill’s criminality that was obtained in executing the warrant. Phillips acted properly in going to the magistrate and seeking a warrant. Magistrate Sear acted properly in calling for additional information to demonstrate credibility. Thus, the only error attributable to the procedure they followed is a technical one that would in no way serve the deterrent purposes of the rule.
See also United States v Williams, 622 F2d 830 (CA 5, 1980).
B. REMAND TO RECONSTRUCT ORAL TESTIMONY
In response to People v Sherbine, supra, the
Even more significantly, after Sherbine was decided, the Supreme Court in People v Mitchell, 428 Mich 364; 408 NW2d 798 (1987), directed a remand to reconstruct oral testimony actually heard by the authorizing judge. In Mitchell, the defect involved was an unsigned search warrant. Id. at 366. I see no principled reason to deny a Mitchell-type remand in these circumstances. Such a remedy is especially appropriate because the search warrant and affidavit in this case explicitly state that the affiant was examined under oath before the magistrate. The first sentence of the search warrant states, in relevant part, "On examination on oath and in writing of the affiant. . . and after reading and evaluating the affidavit. . . .”
C. EXCLUSIONARY REMEDY FOR STATUTORY VIOLATIONS
Suppression of seized evidence, a judge-made
The Supreme Court’s failure to discuss this difficult question in Sherbine is troubling. The issue of the Supreme Court’s authority to suppress evidence for statutory violations is significant and complex. Indeed, the Supreme Court may lack the authority to impose an exclusionary remedy for a statutory violation. See, e.g., Beale, Reconsidering supervisory power in criminal cases: Constitutional and statutory limits on the authority of federal courts, 84 Columbia L R 1433 (1984). Professor Beale examines cases where the United States Supreme Court declined to apply requested remedies for statutory violations because Congress had not explicitly authorized those remedies. Professor Beale explores the separation-of-powers problems in the judicial usurpation of unexercised legislative powers to fashion remedies for purely statutory violations. Her well-developed analysis raises similar questions about Michigan’s scheme. See also Tejeda, supra at 461-467 (Griffin, J., dissenting).
Moreover, an exclusionary remedy is cruel and
In Michigan v Tucker, 417 US 433; 94 S Ct 2357; 41 L Ed 2d 182 (1974), the Supreme Court recognized that the deterrent purposes of the exclusionary rule assume that the police have engaged in wilful or negligent conduct that has deprived the defendant of some right. The remedy ignores the prospect of unjust acquittal on the theory that the lesson to offending police officers is worth the high cost. In this case, the violation is de minimis, but the cost is extreme. The disproportionate nature of the punishment is even more extreme if the investigator actually informed the district judge about the source of the allegations. The detective complied with the Fourth Amendment by applying for a warrant. She apparently acted in complete good faith.
The deterrence rationale has no force whatsoever in this setting. The investigator did not engage in misconduct worth deterring in a rational society. The "error” attributable to the police procedure was technical. I am unwilling to equate the slight human imperfection in draftsmanship depicted here in the "midst and haste of a criminal investigation” with misbehavior warranting the drastic remedy of suppression. Far from advancing the deterrent purposes of the exclusionary rule, exclusion of this evidence promotes public disrespect for the legal process.
The Supreme Court has recognized á good-faith
Reversed; jurisdiction not retained.
Judges Shepherd and McDonald concur in Section i; Judge Shepherd concurs in Sections i and n. The views stated in Section m of the opinion are mine alone.
Although we recognize some jurists believe MRE 403(a)(3) to be the proper vehicle for analyzing this issue, the lower court and the parties have applied the analysis applicable to the rape-shield statute and, until a majority of our Supreme Court instructs us otherwise, we will do the same. See People v LaLone, 432 Mich 103; 437 NW2d 611 (1989).
Because we find the evidence either irrelevant or more prejudicial than probative, we need not address whether exclusion was mandated because of defendant’s apparent failure to meet the requisite ten-day notice requirement of the statute. However, we note failure to file such a notice may require the exclusion of evidence otherwise admissible under the statute. People v Lucas, supra.
Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964); Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d 637 (1969).
People v Mitchell, 428 Mich 364; 408 NW2d 798 (1987).
See, e.g., United States v Leon, 468 US 897; 104 S Ct 3405; 82 L Ed 2d 677 (1984); Illinois v Krull, 480 US 340; 107 S Ct 1160; 94 L Ed 2d 364 (1987); Murray v United States, 487 US 533; 108 S Ct 2529; 101 L Ed 2d 472 (1988) (good-faith exception); see also, e.g., Bank of Nova Scotia v United States, 487 US 250; 108 S Ct 2369; 10Í L Ed 2d 228 (1988); United States v Mechanik, 475 US 66; 106 S Ct 938; 89 L Ed 2d 50 (1986); United States v Hastings, 461 US 499; 103 S Ct 1974; 76 L Ed 2d 96 (Í983) (supervisory power).
Concurring in Part
(concurring in part and dissenting in part). Although I concur with part i of Judge Corrigan’s opinion, I respectfully dissent from the balance of the opinion.
The people concede the affidavit relied on in issuing the search warrant failed to satisfy the requirements of MCL 780.653; MSA 28.1259(3). Although the affidavit contained thorough, specific, and particularized facts, it failed to name the source of the information. Even though it appears obvious the information was obtained from the victim and that the magistrate was so informed, the statutory language is mandatory and unambiguous. It states the finding of probable cause "shall be based upon all the facts related within the affidavit” (emphasis added) and, if the affidavit is based upon information supplied by an unnamed person, it must contain
affirmative allegations from which the magistrate may conclude that the person spoke with personal knowledge of the information and either that the unnamed person is credible or that the information is reliable. [MCL 780.653(b); MSA 28.1259(3) (b)J
Violation of the statute results in suppression of the evidence obtained pursuant to the warrant.
Reference
- Cited By
- 24 cases
- Status
- Published