People v. Keller
People v. Keller
Opinion of the Court
We ordered oral argument on the prosecution’s applications for leave to appeal to consider the sufficiency of an affidavit in support of a search warrant under the Fourth Amendment and MCL 780.653, as well as the proper remedy for violations of MCL 780.653. Because we find no constitutional or statutory violation, these consolidated appeals do not present the opportunity to discuss remedies for such violations. Therefore, we reverse the judgments of the lower courts, which held that violations of the statute and the constitution had occurred, and remand the cases to the Genesee Circuit Court for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
Crime Stoppers
The affidavit in support of the warrant application is particularly important to this appeal. Paragraph 7 stated:
That during the past several weeks, your affiant received an anonymous tip stating that large quantities of marijuana was being sold and manufactured out of 3828 Maryland, City of Flint, Genesee County Michigan. The tipster also indicated that there is a hidden room used for manufacturing Marijuana inside said residence.
In paragraph 8, the affidavit stated:
That on November 30, 2004, your affiant removed two (2) trash bags, white in color with red ties that were located on the south side of Maryland, east of the driveway, near the curb of 3828 Maryland. After removing the trash bags your affiant transported the bags directly to the office of the City of Flint Police Department. Your affiant and fellow officer Marcus Mahan examined the contents of the trash bags. Found inside the trash bags were one (1) suspected marijuana roach, and a green leafy substance on the side of a pizza box, and several pieces of correspondence addressed to Michael/Melinda Keller of 3828 Maryland.
When the police executed the search warrant, they uncovered nearly six ounces of marijuana, as well as firearms and marijuana smoking paraphernalia. Both defendants were charged with maintaining a drug house
In the circuit court, defendants filed motions in limine to suppress any evidence obtained during the execution of the search warrant, arguing that “the reliability and credibility standards set forth in MCLA 780.653 are totally absent from this case relative to the time of the issuance of the search warrant.” Specifically, defendants argued that the police misled the district judge issuing the warrant, and that there was no support for the anonymous tip. The circuit court found a violation of MCL 780.653, but the court held that it could not order suppression based on that violation, citing People v Hawkins.
Judge TALBOT dissented. He argued that the suppression ruling was not properly before the Court because defendants never appealed that ruling. With respect to the issue properly before the Court, Judge TALBOT disagreed with the circuit court ruling that defendants
This Court scheduled oral argument on the prosecutor’s application for leave to appeal.
(1) whether the presence in the defendants’ trash of a small amount of marijuana constituted prohable cause justifying the search; (2) assuming there was a Fourth Amendment violation, whether the police acted in objectively reasonable good-faith reliance on the warrant; (3) whether the search violated MCL 780.653; and (4) assuming that the search violated MCL 780.653, hut not the Fourth Amendment, whether the trial court elected a proper remedy by permitting the defense to argue to the jury that the police misled the magistrate and violated Michigan law in their efforts to obtain a search warrant.[13 ]
STANDARD OF REVIEW
“Questions of law relevant to a motion to suppress evidence are reviewed de novo.”
ANALYSIS
There are two separate but related issues presented by this appeal. The first concerns the constitutional validity of the affidavit in support of the search warrant. If the affidavit was constitutionally infirm, then the Court of Appeals correctly held that, absent an exception, the evidence seized pursuant to the warrant must be excluded.
The Fourth Amendment requires a warrant to “particularly describ[e] the place to be searched, and the person or things to be seized.” The probable cause requirement is relevant to whether “contraband or evidence of a crime will be found in a particular place.”
[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for... conclud[ing]” that probable cause existed.[20 ]
[c]onsidering 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.[23 ]
The Court of Appeals analysis is erroneous for a number of reasons. First, the Court reviewed the magistrate’s decision de novo.
Second, the Court improperly framed this case as a test of the source’s reliability instead of examining all the circumstances set forth in the affidavit to determine whether there was a substantial basis for the magistrate to conclude that “there [was] a fair probability that contraband or evidence of a crime [would] be found” at defendants’ home.
The unnecessary focus on the tip stems from the Court inappropriately dismissing the marijuana from the “trash pull” as “only a roach.” The Court correctly stated that the tip suggested a drug trafficking operation; however, the police conducted further investigation, leading to the discovery of marijuana tied to defendants’ home. The marijuana established probable cause to search the home for additional contraband.
‘■‘[t]he infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant, but does not require the suppression of anything described in the valid portions of the warrant (or lawfully seized — on plain view grounds, for example — during... execution [of the valid portions]).” [United States v Sells, 463 F3d 1148, 1150 (CA 10, 2006), quoting United States v Brown, 984 F2d 1074, 1077 (CA 10, 1993).]
This rule has been adopted by every federal circuit,
As articulated in Sells, there is a “multiple-step analysis to determine whether severability is appli
While all three categories are related to marijuana crimes, the distribution evidence relates to a distinct crime. Furthermore, when determining whether a valid portion constitutes the greater part of a warrant, “merely counting parts, without any evaluation of the practical effect of those parts, is an improperly ‘hyper-technical’ interpretation of the search authorized by the warrant.”
In this case, the police did not seize any of the “evidence of distribution” for which the warrant authorized a search — “plastic packages, paper packets, and scales for weighing. .. and records of drug transactions . ...” Thus, even if that portion of the warrant is invalid, there is no need to suppress any evidence when no “evidence of distribution” was seized, because “ ‘the infirmity of part of a warrant’ ” only requires that “ ‘evidence seized pursuant to that part of the warrant’ ” be suppressed.
Therefore, even accepting the Court of Appeals determination that the source was unreliable, the marijuana from the trash provides a “ ‘substantial basis for
STATUTORY CHALLENGE
The circuit court found a violation of MCL 780.653 because the hearsay information in the affidavit was not reliable and because the officer “misled” the magistrate. The Court of Appeals agreed, citing the fact that “[t]he affiant indicated that she had directly received the anonymous tip when, in fact, Crime Stoppers received the tip and then conveyed it to the police.”
That during the past several weeks your affiant received an anonymous tip stating that large quantities of marijuana was being sold and manufactured out of 3828 Maryland, City of Flint, Genesee County, Michigan. The tipster also indicated that there is a hidden room used for manufacturing marijuana inside said residence.
We find the Court of Appeals reasoning inadequate. First, the affiant does not indicate “that she had directly received” the tip. Because the affiant is the subject of the sentence, it is wholly unclear who relayed the tip to her. Clearly, one could infer that the anonymous source spoke directly to the affiant, but that is not the only inference possible. Nonetheless, under MCL 780.653, the key fact for purposes of probable cause is that the source was anonymous. The officer made no attempt to conceal that fact. The fact that the anony
The statute requires that “[t]he magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him or her.”
The issue then is whether the affidavit is “based upon” information supplied by an unnamed person. “Base,” when used as a verb, means “to place or establish on a base or basis; ground, found (usu[ally] followed] by on or upon): Our plan is based on an upturn in the economy.”
CONCLUSION
We disagree with the lower courts’ holdings that the affidavit in support of the search warrant failed to establish probable cause and that there was a violation
The prosecutor describes Crime Stoppers as “a public service announcement on television asking for information about particular crimes. The individuals giving information are sometimes monetarily rewarded.” See MCL 600.2157b(4)(b) (“ ‘Crime stoppers organization’ means a private, nonprofit organization that distributes rewards to persons who report to the
MCL 333.7405(l)(d) and MCL 333.7406.
Mr. Keller was charged with possession with intent to deliver, MCL 333.7401, while Mrs. Keller was charged with simple possession, MCL 333.7403.
468 Mich 488; 668 NW2d 602 (2003).
The circuit court also heard motions regarding the corpus delicti rule, whether to quash the bindovers on the charges of maintaining a drug
People v Keller, 270 Mich App 446, 450; 716 NW2d 311 (2006).
Id. at 456 (Talbot, J., dissenting). MCL 780.657 provides for a fine of not more than $1,000 or up to one year of imprisonment for “ [a]ny person who in executing a search warrant, wilfully exceeds his authority or exercises it with unnecessary severity....” MCL 780.658 provides for the same penalties for “[a]ny person who maliciously and without probable cause procures a search warrant to be issued and executed ....”
477 Mich 968 (2006).
Id.
Hawkins, supra at 496-497, citing People v Hamilton, 465 Mich 526, 529; 638 NW2d 92 (2002); see also People v Stevens (After Remand), 460 Mich 626, 631; 597 NW2d 53 (1999).
City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28 (2006).
People v Russo, 439 Mich 584, 603-604; 487 NW2d 698 (1992), quoting Illinois v Gates, 462 US 213, 236; 103 S Ct 2317; 76 L Ed 2d 527 (1983), quoting Spinelli v United States, 393 US 410, 419; 89 S Ct 584; 21 L Ed 2d 637 (1969).
People v Goldston, 470 Mich 523, 525-526; 682 NW2d 479 (2004). However, the Court was incorrect to conclude that “the good-faith exception is inapplicable in this case” and that “[b]ecause the affidavit was insufficient,.. . the magistrate wholly abandoned his judicial role when he issued the warrant.” Keller, supra at 451. The affiant did not “mislead” the district judge, id., and the affidavit was not “lacking in indicia of probable cause . . . .” Goldston, supra at 531 (quotation marks omitted). Moreover, an appellate court’s determination that an affidavit was insufficient does not, in and of itself, provide adequate support for the conclusion that a magistrate “wholly abandoned his judicial role.” Abandoning the judicial role requires more than reaching a different legal conclusion from that of an appellate court. See, e.g., Lo-Ji Sales, Inc v New York, 442 US 319, 328; 99 S Ct 2319; 60 L Ed 2d 920 (1979).
MCL 780.653 provides:
*475 The magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him or her. The affidavit may be based upon information supplied to the complainant by a named or unnamed person if the affidavit contains 1 of the following:
(a) If the person is named, affirmative allegations from which the magistrate may conclude that the person spoke with personal knowledge of the information.
(b) If the person is unnamed, 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.
Gates, supra at 238; see also United. States v Grubbs, 547 US 90, 95; 126 S Ct 1494; 164 L Ed 2d 195 (2006) (“In the typical case where the police seek permission to search a house for an item they believe is already located there, the magistrate’s determination that there is probable cause for the search amounts to a prediction that the item will still be there when the warrant is executed.”).
Gates, supra at 238-239, quoting Jones v United States, 362 US 257, 271; 80 S Ct 725; 4 L Ed 2d 697 (1960) (changes in Gates). This Court
Id. at 450, citing Russo, supra at 603-604.
Keller, supra at 448, citing People v Hickman, 470 Mich 602, 605; 684 NW2d 267 (2004).
Gates, supra at 236 (citation omitted).
The dissent rejects a finding of probable cause under these circumstances because “[a]ll the trash pull established was that, on one occasion, someone with access to defendants’ trash discarded a marijuana cigarette in one of their trash bags.” Post at 488 n 3. However, as Justice Cavanagh has acknowledged, to establish probable cause to issue a search warrant it is only necessary to show a “ ‘ “substantial basis” for inferring
See Sells, supra at 1150 n 1 (listing federal cases).
See, e.g., People v Ulman, 244 Mich App 500, 510; 625 NW2d 429 (2001) , and People v Griffin, 235 Mich App 27, 42; 597 NW2d 176 (1999), overruled on other grounds by People v Thompson, 477 Mich 146 (2007),
Sells, supra at 1150, quoting Brown, supra at 1077. The dissent considers the firearms seized to be “evidence of marijuana distribution.” Post at 496-497. However, it is “well settled that objects such as weapons or contraband found in [plain view] may be seized by the pohce without a warrant.” People v Johnson, 431 Mich 683, 691 n 5; 431 NW2d 825 (1988). Moreover, “ ‘a warrant that authorizes an officer to search a home for illegal [drugs] also provides authority to open closets, chests, drawers, and containers in which the [drugs] might be found.’ ” People v Coleman, 436 Mich 124, 131; 461 NW2d 615 (1990), quoting United States v Ross, 456 US 798, 821; 102 S Ct 2157; 72 L Ed 2d 572 (1982). In this case, it is unclear from the record which firearms the prosecutor sought to introduce and where these firearms were found. However, regardless of where the firearms were found, the firearms evidence should not be suppressed. The valid search warrant for contraband in defendants’ home allowed police officers to “ ‘open closets, chests, drawers, and containers ....’” Hence, even if the firearms seized were in a container, the police officers were validly authorized to open such containers to search for contraband. If the police officers found the firearms after opening a container, those weapons would then be in plain view and could be validly seized. Thus, the evidence of firearms found in defendants’ home is not properly suppressed.
Id. at 238-239, quoting Jones, supra at 271.
MCL 780.653.
Random House Webster’s College Dictionary (1997).
In context, “complainant” seems to be a synonym for “affiant.” Black’s Law Dictionary (5th ed) defines “complainant” as “[o]ne who applies to the courts for legal redress by filing a complaint (i.e. plaintiff). Also, one who instigates prosecution or who prefers accusation against suspected person.” The affiant, who is also asking for a search warrant, is someone who is applying to the court for redress or preferring an accusation.
Even if that requirement came into play, the trash pull partially corroborating the tip provided “affirmative allegations from which the magistrate may conclude ... that the [anonymous source] is credible.” MCL 780.653. See United States v Hammond, 351 F3d 765, 772 (CA 6, 2003) (a “tip can take on an increased level of significance... if corroborated by the police through subsequent investigation”); United States v Le, 173 F3d 1258, 1266 (CA 10, 1999) (holding that tips from two informants that a defendant was selling methamphetamine were corroborated when an officer “searched] Le’s refuse and discovered] traces of methamphetamine”).
The dissent would essentially hold that whenever an affidavit makes the slightest reference to information supplied by an informant, the requirements of MCL 780.653 must be complied with. To reach this conclusion, the dissent relies on the first sentence of MCL 780.653, which states that “[t]he magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him or her.” Contrary to what the dissent concludes, the phrase “based upon” has the same meaning in both the first and second sentences. The difference between the sentences is that the first requires the magistrate to found his or her probable cause determination on all the information in the affidavit, while the second sentence only applies if the affidavit itself is founded on information from a source other than the affiant.
Dissenting Opinion
(dissenting). Because I believe that the search warrant issued in this case was constitutionally invalid, I respectfully dissent. I would affirm the judgment of the Court of Appeals.
I. THE CONSTITUTIONALITY OF THE SEARCH WARRANT
I disagree with the majority’s conclusion that the search warrant was constitutionally valid. The United States Constitution requires search warrants to be based “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” US Const, Am IY
In Michigan, these constitutional mandates are implemented in part by MCL 780.651(1) and MCL 780.653, which require that probable cause be shown through an affidavit presented to a magistrate who will decide, on the basis of the facts related within the affidavit, whether to issue a warrant. If an affidavit contains hearsay information, MCL 780.653 calls for assurances that the information is credible and based on personal knowledge. An affidavit based on information from an unnamed source must include “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).
The search warrant issued in this case failed to meet the constitutional standards enunciated in Gates and implemented by MCL 780.653(b). Our role in reviewing the constitutional validity of a search warrant is to assess the magistrate’s determination to ensure that there was a “ ‘substantial basis for... concluding]’ that probable cause existed.” Gates, supra at 238-239, quoting Jones v United States, 362 US 257, 271; 80 S Ct 725; 4 L Ed 2d 697 (1960). The search warrant was supported by an affidavit that contained information from an anonymous source
Under Gates and MCL 780.653, the magistrate must consider the basis of the source’s knowledge. The affidavit contained no indication that the anonymous source spoke with personal knowledge of defendants’ alleged manufacturing and distribution scheme. The mere assertion that marijuana was being manufactured in a hidden room of a residence does not amount to an “explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand,” that would build confidence in the source’s information. Gates, supra at 234.
In addition, the affidavit failed to establish the credibility of the anonymous source. For example, the affiant did not indicate that the source had provided reliable information in the past. Nor did the evidence discovered in the trash pull demonstrate that the source was credible or the information reliable by corroborating the allegation of drug trafficking. The trash pull uncovered remnants of a single burnt marijuana cigarette, while the source had accused defendants of manufacturing and selling large quantities of marijuana in their home. The information contained in the affidavit entirely failed to establish the source’s credibility and the accuracy of the information.
Of course, no single factor — the source’s basis of knowledge, the reliability of the information, or the veracity of the source — is dispositive. Under the totality-of-the-circumstances analysis of Gates, the magistrate weighs the “various indicia of reliability” to make a “balanced assessment” of an informant’s tip. Id. But here no factor weighed heavily enough to justify
The majority contends that even if the anonymous source was unreliable, the warrant was nonetheless valid because the marijuana discovered in the trash pull supplied “probable cause to search the home for additional contraband.” Ante at 477. But this assertion completely disregards the scope of the warrant. The Fourth Amendment expressly requires that a search warrant “particularly describ[e] the place to be searched, and the persons or things to be seized.” A search that exceeds the scope of its authorizing warrant is constitutionally invalid. “[A]n otherwise unobjectionable description of the objects to be seized is defective if it is broader than can be justified by the probable cause upon which the warrant is based.” 2 LaFave, Search & Seizure (4th ed), § 4.6(a), p 607. The evidence recovered from the trash pull alone cannot validate a search under the warrant issued in this case. The warrant authorized a search for evidence of narcotics distribution when at most the trash pull would have only established probable cause for possession of marijuana.
II. PARTIAL SUPPRESSION
To justify the search under this warrant, the majority adopts a doctrine known as “partial suppression” or
That severance may he appropriate in theory does not mean it is appropriate in a particular case. The doctrine is not available where no part of the warrant is sufficiently particularized, where no portion of the warrant may be meaningfully severed, or where the sufficiently particularized portions make up only an insignificant or tangential part of the warrant. [United States v George, 975 F2d 72, 79-80 (CA 2, 1992) (citations omitted).]
More pertinent to the case at hand, severance may be improper “if probable cause existed as to only a few of
I would not apply the severance doctrine to the warrant involved here. A number of jurisdictions limit the use of the doctrine to cases in which a significant portion of the warrant is valid. For example, the Tenth Circuit Court of Appeals applies the doctrine “only if ‘the valid portions of the warrant [are] sufficiently particularized, distinguishable from the invalid portions, and make up the greater part of the warrant.’ ” Sells, supra at 1151, quoting United States v Naugle, 997 F2d 819, 822 (CA 10, 1993). This warrant was disproportionally invalid. This is not a case in which the allegedly valid evidence formed the greater part of the warrant. In fact, evidence of marijuana possession was just one portion of a warrant that also sought other controlled substances, currency, distribution paraphernalia (various forms of which were enumerated at length), papers establishing ownership, and records of drug transactions. It is evident from considering the warrant as a whole that the purpose of this search was to uncover evidence of a drug distribution scheme.
Further, the purportedly valid portion of the warrant is not sufficiently distinguishable from the invalid portions to support severance. In the affidavit, the trash pull and the anonymous tip were used to support a search for the same evidence — evidence of marijuana manufacturing and sale. The warrant did not distinguish between marijuana that was merely in defendants’ possession and marijuana that was part of the suspected marijuana distribution operation. Consequently, the purportedly valid portion of the warrant cannot realistically be distinguished from the invalid portions. Thus, this warrant is not suitable for severance.
Additionally, as will be addressed further in part III, there is evidence that the affiant acted in bad faith. Most jurisdictions consider the presence of bad faith on the part of the police to preclude the application of the severance doctrine, and I would do the same.
III. THE GOOD-FAITH EXCEPTION
The good-faith exception to the warrant requirement does not salvage the constitutionality of the search of
The good-faith exception fails to apply here on at least two grounds: the police officers did not act in objectively reasonable reliance on the warrant because the affidavit plainly did not comply with MCL 780.653, and the affiant misled the magistrate. To invoke the good-faith exception, the officers must have reasonably relied on the warrant. Reasonable reliance is gauged by an objective standard that “requires officers to have a reasonable knowledge of what the law prohibits.” Leon, supra at 919 n 20, citing United States v Peltier, 422 US 531, 542; 95 S Ct 2313; 45 L Ed 2d 374 (1975). MCL 780.653 requires that affidavits based on information from an anonymous source include allegations that could lead the magistrate to conclude that the source spoke with personal knowledge and either that the
In addition, there is evidence that the affiant intentionally or recklessly indicated that the anonymous tip had been received directly, rather than through Crime Stoppers. An appellate court reviews for clear error the finding that an affidavit in support of a search warrant was misleading because it contained false statements made knowingly and intentionally or with reckless disregard for their truth. United States v Henson, 848 F2d 1374, 1381 (CA 6, 1988). Clear error exists if the reviewing court is left with the “definite and firm
IV THE STATUTORY VIOLATION
Having concluded that the search warrant was constitutionally invalid and that the evidence seized during the search must be suppressed, there is no need to address the violation of MCL 780.653 and its proper remedy. Accordingly, I will not reiterate my discussion of the statutory violation from the preceding section. However, the majority’s claim that this warrant did not trigger the statutory requirement that the anonymous source bear indicia of reliability merits a response.
After concluding that the search was constitutional because the trash pull alone provided probable cause for the warrant, the majority extends this reasoning to the statutory violation. According to the majority, the requirements of MCL 780.653 are not implicated at all because the affidavit was not “based upon” information from the anonymous source, but was instead “based upon” the trash pull.
The requirements of MCL 780.653 applied to this warrant because the affidavit was based upon information from an unnamed source. Thus, even if there were no constitutional violation, defendant would be entitled to a remedy as a result of the statutory violation.
V CONCLUSION
I agree with the Court of Appeals holding that the affidavit in support of the search warrant failed to establish probable cause to search for evidence of marijuana sale and distribution. I would affirm the order to suppress the evidence gathered from the search and would remand for further proceedings.
Similarly, the Michigan Constitution provides that “[n]o warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation.” Const 1963, art 1, § 11.
The affidavit stated that “your affiant received an anonymous tip stating that large quantities of marijuana was [sic] being sold and manufactured out of [defendants’ residence]. The tipster also indicated that there is a hidden room used for manufacturing Marijuana inside said residence.”
The warrant authorized a search for
marijuana and other controlled substances, U.S. Currency, paraphernalia used in the blending, packaging and sale of the above stated controlled substance, including, but not limited to, plastic packages, paper packets, and scales for weighing, and the like, firearms and ammunition, papers and effects showing occupancy,*488 ownership, dominion, or control of said premises, including but not limited to rent and property receipts, keys, bills, and cancelled mail envelopes, and records of drug transactions ....
Further, it is highly questionable whether the contraband found in the trash, without more, could provide probable cause to believe that marijuana would be found in defendants’ home. The majority is too quick to conclude that simply because a burnt marijuana cigarette was found in defendants’ trash on one occasion, there was a “substantial basis” for inferring a “fair probability” that more marijuana would be found in defendants’ home the next day. All the trash pull established was that, on one occasion, someone with access to defendants’ trash discarded a marijuana cigarette in one of their trash bags. One could infer that the cigarette belonged to defendants, but it certainly could have come from another source, whether it was a neighbor or passerby disposing of his own garbage in defendants’ trash or a guest in defendants’ home. After all, the very reason trash searches without warrants are constitutional is because a person loses his privacy interest by putting it out for collection, thereby relinquishing control over it. Even supposing that the marijuana belonged to defendants, a single instance of marijuana use does not necessarily permit the assumption that marijuana would likely be present in defendants’ home when the warrant is executed. See, e.g., United States v Cunningham, 145 F Supp 2d 964, 967 (ED Wis, 2001) (A trace amount of cocaine discovered in a garbage search “by itself is insufficient to establish probable cause that contraband would be found at defendant’s residence. The presence of cocaine traces in garbage does not necessarily give rise to an inference that additional drugs are located on the premises. Cocaine traces may be attributable to one time personal use of drugs by either a resident or a third party.”).
See United States v Diaz, 841 F2d 1, 4 (CA 1, 1988) (severance is appropriate “where the bulk of the warrant and records seized are fully supported by probable cause”); United States v Christine, 687 F2d 749, 754-760 (CA 3, 1982) (severance is inappropriate when valid portions are not “meaningfully severable” from the warrant, if it would be an abuse of the warrant procedure, or for a general warrant); United States v Freeman, 685 F2d 942, 952 (CA 5, 1982) (severance limited to circumstances where “legitimate fourth amendment interests will not be jeopardized,” not where, for example, “the warrant is generally invalid but as to some tangential item meets the requirements of probable cause” or where the valid items were included as a pretext to support an unlawful search); United States v Fitzgerald, 724 F2d 633, 636-637 (CA 8, 1983) (permitting severance absent a showing of pretext or bad faith); United States v Spilotro, 800 F2d 959, 967 (CA 9, 1986) (invalid portion must be “sufficiently separable from the rest of the warrant to allow severance”); see also Sells, supra at 1158-1159.
While disclaiming a “hypertechnical” approach, the majority engages in just that when it groups the evidence sought under the warrant into three categories and declares that probable cause existed for two out of three of them. In fact, several categories of evidence sought by the warrant are unrelated to marijuana possession: possession of other controlled substances, currency, paraphernalia used in the blending, packaging, and sale of controlled substances, and records of drug transactions. The only categories of evidence sought under the warrant that would be necessary to establish the elements of simple marijuana possession would be marijuana and evidence of control over the premises.
MCL 780.653 provides in relevant part:
The magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him or her. The affidavit may be based upon information supplied to the complainant by a named or unnamed person if the affidavit contains 1 of the following:
(b) If the person is unnamed, 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 rehable.
The Crime Stoppers Alliance operates a toll-free hotline and offers a cash reward of up to $1,000 to any person providing a tip resulting in a felony arrest.
Because we review the circuit court’s finding for clear error, this interpretation need not be the “only inference” that could be drawn from the affidavit, as the majority suggests. Ante at 481. The inference that guides us should be the one drawn by the circuit court. The circuit court heard the testimony of the affiant, considered the language of the affidavit, and concluded that the officer had misled the magistrate.
MCL 780.653 provides that an
affidavit may be based upon information supplied to the complainant by... [an] unnamed person if the affidavit contains ... 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.
The majority apparently takes the position that although the first and second sentences of MCL 780.653 both use the phrase “based upon,” the meaning of this phrase in each sentence is completely independent of the meaning in the other. But in interpreting a statute, we must “consider both the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999) (citation omitted). The fact that the first sentence of MCL 780.653 compels the magistrate to base his finding on all the facts in the affidavit cannot be ignored when reading the second sentence of the statute.
The majority characterizes my position as “whenever an affidavit makes the slightest reference to information supplied by an informant, the requirements of MCL 780.653 must be complied with.” Ante at 483 n 44. This generalization obscures the bottom line, which is that this affidavit was based upon information from an unnamed source; thus, MCL 780.653 must be complied with.
Reference
- Full Case Name
- People v. Michael Keller; People v. Melinda Keller
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- 69 cases
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- Published