People v. Keller
People v. Keller
Opinion of the Court
In these consolidated appeals, the prosecution appeals by leave granted the trial court’s orders denying defendants’ motions to suppress evidence obtained from the execution of a search warrant, but ruling that defense counsel could argue to the jury that the police misled the magistrate and violated Michigan law when they sought and obtained the search warrant. We reverse the denial of defendants’ respective motions
On appeal the prosecution argues that the trial court erred when it ruled that defense counsel could argue to the jury that the police misled the magistrate and violated Michigan law when they sought and obtained the search warrant. After review de novo, we conclude that the trial court erroneously denied defendants’ motions to suppress.
First, we agree with the trial court’s conclusion that the magistrate erred in issuing the search warrant. “Probable cause to issue a search warrant exists where there is a ‘substantial basis’ for inferring a ‘fair probability’ that contraband or evidence of a crime will be found in a particular place.” People v Kazmierczak, 461 Mich 411, 417-418; 605 NW2d 667 (2000), citing People v Russo, 439 Mich 584, 603-604; 487 NW2d 698 (1992). A “finding of reasonable or probable cause shall be based upon all the facts related within the affidavit....” MCL 780.653. Here, the affidavit was based on information provided by an unnamed person. Such
In this case, the “tip” was not given directly to the police by the anonymous informant and the police could not prove that the informant spoke with personal knowledge of the information. Furthermore, because the police had never used the anonymous informant in the past, they could not prove that the anonymous informant, was credible. Moreover, after several days of surveillance investigation and a “trash pull,” the police only found a marijuana cigarette butt (a roach) in the trash and possibly a small amount of marijuana residue in a pizza box — not evidence of marijuana manufacture or delivery; thus, the police could not prove that the information that the anonymous informant supplied was reliable. See People v Levine, 461 Mich 172, 180-183; 600 NW2d 622 (1999). Therefore, the “tip” information in the affidavit did not meet the requirements of MCL 780.653(b), and the trial court properly concluded that the magistrate erred in issuing the search warrant. See Kazmierczak, supra.
But the trial court relied on our Supreme Court’s decision in People v Hawkins, 468 Mich 488, 513; 668 NW2d 602 (2003), to conclude that the exclusionary rule was not the proper remedy. The trial court was correct in noting that a violation of the statutory affidavit requirements set forth in MCL 780.653 does not, by itself, warrant the application of the exclusionary rule. Hawkins, supra at 502, 510-511. However, the Hawkins Court did not address the dispositive issue that we have here — whether the affidavit as a whole contained enough facts to establish probable cause to
Considering the search warrant and the underlying affidavit, as read in a commonsense and realistic manner, we conclude that a reasonably cautious person could not have concluded that there was a “substantial basis” for the finding of probable cause, i.e., for inferring a “fair probability” that evidence of drug trafficking would be found at defendants’ house. See Russo, supra at 603-604. The warrant was supported by an affidavit that contained primarily two statements allegedly inferring probable cause: (1) “an anonymous tip,” purportedly received by the affiant
The exception, if any, that would appear to apply under the circumstances is the good-faith exception.
Reversed and remanded. We do not retain jurisdiction.
We respectfully disagree with our dissenting colleague’s position that we are not permitted to consider this issue in the absence of a cross-appeal. The prosecutor argues on appeal that the search warrant at issue was valid and, thus, any remarks to the contrary by defendants to the jury would be inappropriate, i.e., defendants were not entitled to such a remedy. Obviously, to properly address the prosecutor’s argument on appeal, defendants were required to argue that the trial court correctly determined that the search warrant was unlawfully issued and that they were entitled to the proper remedy for the violation, just as they argued in the trial court. Ultimately, then, the issues in this case are whether the search warrant was lawfully issued and, if not, the remedy to which defendants were entitled. These issues are inextricably linked. Further, pursuant to authority granted to us by MCR 7.216(A), we deem this relief just under the circumstances of this case.
At the prehminary examination it was revealed by the affiant that she did not directly receive the anonymous tip, contrary to her sworn statement; rather, Crime Stoppers received the tip.
Dissenting Opinion
(dissenting). On October 14, 2005, this Court granted the prosecution’s applications for leave to appeal, “limited to the issues raised in the application
Where the trial court denies defendant’s motion to suppress evidence obtained pursuant to a search warrant, may defense counsel argue to the jury that the police intentionally and deliberately misled the magistrate in seeking the warrant?
Defendants never applied for leave to appeal and have not cross-appealed. Instead, defendants attempted to reframe the issue on which this Court granted leave by stating in their responsive briefs:
The Correctly Stated Issue Presented by DefendantAppellee
WTiether the Circuit Court should have denied the Defendant-Appellee’s motion to suppress when finding that the police, in seeking the search warrant, misled the magistrate, violated Michigan Statute MCL 780.653, and that the anonymous tip coupled with a trash pull, which netted a “roach” and some crumbs of marijuana, was not sufficient to give rise to probable cause; in other words, should the exclusionary rule be appliedf]
Defendants have done no more than improperly restate the issue for which this Court granted leave to the prosecution and, thus, have failed to properly raise their purported “issue” before this Court on appeal. Defendants have not even requested this Court to allow them to raise any additional grounds for appeal. Defendants’ argument has, therefore, not been properly briefed for this Court’s consideration at this time. Under these circumstances, I do not believe this Court
Defendant Michael Keller’s motion in limine to suppress “any and all evidence obtained as a result of the execution of a search warrant” contains no brief in support of the motion and amounts to nothing more than a disconnected list of statements attacking the reliability of the search warrant. The motion stated that the anonymous tip at issue in this case failed to meet the standards set forth in MCL 780.653. The only constitutional arguments found in this motion are conclusory statements of constitutional infirmity, citing Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978), People v Sloan, 450 Mich 160; 538 NW2d 380 (1995),
After hearing defendants’ motions, the circuit court agreed with defendants that the police violated MCL 780.653, but, following People v Hawkins, 468 Mich 488; 668 NW2d 602 (2003), refused to order suppression of
Generally, an issue is not properly preserved if it is not raised before, addressed by, or decided by the circuit court. Polkton Charier Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005). Here, defendants did not raise, and the circuit court did not address or decide, the constitutional argument defendants now assert on appeal, which argument concerns the proper application of the good-faith exception to the exclusionary rule as discussed in Goldston. Thus, defendants have not preserved their argument. Furthermore, in cases for which leave to appeal was granted, the appeal is limited to the issues raised in the application, MCR 7.205(D)(4), and the appellee may not assert additional issues through a purported cross-appeal, Wilcoxon v Wayne Co Neighborhood Legal Services, 252 Mich App 549, 555; 652 NW2d 851 (2002). Rather, an appellee is limited to the issues raised by the appellant unless the appellee cross-appeals as provided in MCR 7.207. Barnell v Taubman Co, Inc, 203 Mich App 110, 123; 512 NW2d 13 (1993).
Here, this Court granted the prosecution leave to appeal only on the issue raised in the application, which
The prosecution’s appeal, however, is properly before this Court. Turning to that issue, and only that issue, the prosecution argues that the circuit court erred when it ruled that defense counsel could argue to the jury that the police misled the magistrate and violated MCL 780.653 when they sought and obtained the search warrant. I agree.
According to the Court’s reasoning in Hawkins, it follows that if the Legislature intended to allow a defendant to argue to the jury that the police illegally obtained a search warrant as a remedy for a violation of MCL 780.653, it would have specifically listed such a remedy and would not have provided the specific remedies in MCL 780.657 and MCL 780.658. The circuit
Confining this Court’s disposition to the resolution of the issue for which this Court granted leave, I would reverse the circuit court’s orders to the extent that they allow defense counsel to argue to the jury that the police misled the magistrate and violated Michigan law when they sought and obtained the search warrant.
People v Michael D Keller, unpublished order of the Court of Appeals, entered October 14, 2005 (Docket No. 264865); People v Melinda S Keller, unpublished order of the Court of Appeals, entered October 14, 2005 (Docket No. 265118).
Overruled, by People v Hawkins, 468 Mich 488; 668 NW2d 602 (2003).
The transcript of the hearing on defendants’ motions to suppress indicates that the circuit court only addressed the violation of MCL 780.653, but did not reach the constitutional issues defendants now raise on appeal.
Although defendants argue on appeal that a constitutional, and not merely a statutory, violation occurred when the police obtained the search warrant, this issue is not properly before this Court because defendants have not properly raised it either in the circuit court or on appeal. Therefore, for the purposes of this appeal, I will assume, without deciding, that the circuit court correctly denied defendants’ motions to suppress.
MCL 780.657 provides that “[a]ny person who in executing a search warrant, willfully exceeds his authority or exercises it with unnecessary severity, shall be fined not more than $1,000.00 or imprisoned not more than 1 year.”
MCL 780.685 provides that “[a]ny person who maliciously and without probable cause procures a search warrant to be issued and executed shall be fined not more than $1,000.00 or imprisoned not more than 1 year.”
I disagree with the majority’s characterization that the affidavit was misleading in that it “indicated that [the affiant] had directly received the anonymous tip .. . .’’Ante at 451. The affidavit merely stated that the affiant “received an anonymous tip,” but, as the term anonymous would indicate, it does not state from whom she received the tip.
Reference
- Full Case Name
- People v. Michael Keller; People v. Melinda Keller
- Cited By
- 5 cases
- Status
- Published