People v. Keller

739 N.W.2d 505

479 Mich. 467

THE PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. Michael David KELLER, Defendant-Appellee.

The People Of The State Of Michigan, Plaintiff-Appellant, v. Melinda Sue KELLER, Defendant-Appellee.

Docket No. 131223.

Docket No. 131224.

Supreme Court of Michigan.

July 25, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David S. Leyton, Prosecuting Attorney, and Donald A. Kuebler, Chief, Research, Training & Appeals, for the people.

Neil C. Szabo and James Zimmer, Flint, for the defendants.

David Gorcyca, president of the Prosecuting Attorneys Association of Michigan, Kym L. Worthy, Wayne County Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, Detroit, for the Prosecuting Attorneys Association of Michigan.

YOUNG, J.

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 Stoppers¹ received an anonymous tip that defendants were operating a marijuana growing and distribution operation out of their home in Flint. Crime Stoppers passed the tip on to the Flint police, who conducted surveillance at defendants' home on three separate days, but did not observe any evidence of a marijuana growing and distribution operation. The police then conducted a "trash pull" at defendants' home and discovered a partially burnt marijuana cigarette, a green leafy substance on the side of a pizza box, and correspondence tying defendants to the residence. Based on this information, the police applied for a search warrant for defendants' home.

The affidavit in support of the warrant application is particularly important to this appeal. Paragraph seven 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 eight, 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.

Paragraph nine stated "[y]our affiant field test[ed] . . . the suspected marijuana which tested positive for the presence of marijuana." Based on the affidavit, the magistrate issued a search warrant.

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 house² and possession of marijuana.³ The district court bound both defendants over to the circuit court for trial on those charges.

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.⁴ To remedy the violation, the court held that defendants could "argue to the jury that the police department intentionally violated the law of the State of Michigan; that the police department deliberately conducted or mislead [sic] a magistrate when seeking the search warrant."⁵

The prosecutor filed interlocutory appeals, raising only the issue of the proper remedy for a violation of MCL 780.653. The Court of Appeals granted the prosecutor's applications for leave to appeal, but instead of addressing the issue raised by the prosecutor, the Court held that the search warrant and the underlying affidavit could not support a finding of probable cause. "Therefore, any evidence obtained pursuant to the warrant was illegally obtained and should be suppressed by the operation of the exclusionary rule unless an exception applies."⁶ The Court then opined that "the good-faith exception is inapplicable in this case."⁷ The Court cited two facts to support that conclusion. First, "[t]he affiant indicated that she had directly received the anonymous tip and then conveyed it to police."⁸ Second, "the affidavit indicates that only a roach and some possible marijuana residue were found during a trash pull—hardly evidence that would lead a reasonable person to believe that drug trafficking was occurring at the house."⁹ Additionally, the Court held that "[b]ecause the affidavit was insufficient, we would also conclude that the magistrate wholly abandoned his judicial role when he issued the warrant."¹⁰

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 could argue to the jury that the police misled the magistrate and violated MCL 780.653. He concluded 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."¹¹

This Court scheduled oral argument on the prosecutor's application for leave to appeal.¹² The order directed the parties to address four issues:

(1) whether the presence in the defendants' trash of a small amount of marijuana constituted probable 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, but 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."¹⁴ Similarly, constitutional and statutory construction involves questions of law that are also reviewed de novo.¹⁵ However, "after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's `determination of probable cause should be paid great deference by reviewing courts.'"¹⁶

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.¹⁷ However, if the affidavit passes constitutional muster, then the Court must determine whether the affidavit conformed to MCL 780.653.¹⁸

THE CONSTITUTIONALITY OF THE SEARCH WARRANT

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."¹⁹ With respect to appellate review of probable cause for the issuance of a warrant.

[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

In this case, the Court of Appeals cited two statements in the affidavit that the magistrate may have relied on to find probable cause: (1) the reference to the anonymous tip and (2) the reference to the roach and marijuana residue from the trash pull. The Court dismissed the tip as unreliable because the police could not prove that the source spoke with personal knowledge or was reliable. Additionally, the Court found that the tip "is at significant odds" with both the evidence from the trash pull and the evidence discovered during the execution of the warrant.²¹ The Court also dismissed the evidence of marijuana discussed in the affidavit as "only a roach and some possible marijuana residue ... [,] hardly evidence that would lead a reasonable person...