People v. Stumpf

• Decision Date: 05 October 1992
• Docket Number: Docket No. 144151
• Citation: 492 N.W.2d 795,196 Mich.App. 218
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Karl Glenn STUMPF, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 795

492 N.W.2d 795

196 Mich.App. 218

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Karl Glenn STUMPF, Defendant-Appellant.

Docket No. 144151.

Court of Appeals of Michigan.

Submitted Sept. 10, 1992, at Detroit.

Decided Oct. 5, 1992, at 9:10 a.m.

Released for Publication Dec. 21, 1992.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Carl J. Marlinga, Pros. Atty., and Carole A. Murray, Asst. Pros. Atty., for the People.

R. Steven Whalen, Detroit, for defendant-appellant.

Before HOOD, P.J., and CONNOR and TAYLOR, JJ.

CONNOR, Judge.

Defendant conditionally pled guilty to manufacturing marijuana, M.C.L. Sec. 333.7401(2)(c); M.S.A. Sec. 14.15(7401)(2)(c), and was fined $1,000. Defendant appeals as of right, and we affirm.

Defendant's guilty plea was conditioned upon this Court's review of the trial court's decision on a motion to suppress evidence obtained pursuant to a search warrant. Defendant argued below and now argues on appeal that the affidavit offered in support of the warrant to search defendant's residence was based on stale, false, and incomplete information; did not support a finding of probable cause to search; and failed to establish the personal knowledge of an unnamed informant.

This Court's analysis on appeal will be guided by the principles recently enunciated in People v. Russo, 439 Mich. 584, 603-604, 487 N.W.2d 698 (1992), wherein our Supreme Court clarified that reviewing courts should read the search warrant and the affidavit in a common-sense and realistic manner. Deference is afforded the magistrate's decision on the basis of a preference for searches conducted pursuant to warrants, and a reviewing court must only insure that there is a substantial basis for the magistrate's conclusion that there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id., at p. 604, 487 N.W.2d 698. ¹

The affidavit of Detective Sergeant Curtis Schram included the following pertinent facts to support probable cause:

(2) On 6/28/90 Hemp Tip number C-01-90 was received stating that a Karl Stumpf had received eight (8) shipments of marijuana seeds and/or equipment used for growing marijuana within the past 16 months at 18990 Victor....

(3) A check with the utility company of 18990 Victor, shows that a Vivian Stumpf is living at that address. Further, that from 6/9/89 to 7/12/89, 1310 KWH hours of electricity was used. The following month the rate increased to 1537 KWH hours, and the following month increased to 1600 KWH hours.

(4) Affiant contacted the residence at 18990 Victor by telephone and a Karl Stumpf identified himself as being at the residence.

(5) Affiant, on 9/11/90, observed a 1962 Chevrolet, 2 door, 90/MI, 776-YHN, parked in the driveway. LEIN showed the vehicle was registered to Karl Stumpf.

(6) A check of Karl Stumpf's arrest record shows that he has been arrested for drugs in the past.

(7) A check at 18990 Victor ... was made by Affiant. It was observed that an upstairs window was covered up and had a fan. Further, the basement windows were also covered.

(8) On 8/8/90, Affiant obtained a search warrant using the same information from the informant, and it resulted in a seizure of marijuana and items associated with the growing of marijuana.

(9) On 8/21/90, Affiant obtained a search warrant using the same information from the informant, and it resulted in a seizure of marijuana and items associated with the growing of marijuana.

(10) On 8/27/90, Affiant obtained a search warrant using the same information from the informant, and it resulted in a seizure of marijuana and items associated with the growing of marijuana.

(11) It is the belief of the Affiant, based upon ten years police experience and training, that Karl Stumpf is growing marijuana at 18990 Victor ...

The trial court conducted an evidentiary hearing on the motion to suppress on March 25, 1991. The only witness at that hearing was Sergeant Schram.

Schram explained that the tip about the marijuana seeds and equipment was received from the Oregon State Police. They had received the information through the federal Drug Enforcement Administration. An individual arrested in Oregon by the DEA was cooperating with the DEA and providing information on the shipment of marijuana seeds and equipment used to grow marijuana. Schram did not personally speak with the informant, nor did he know who the informant was, but he received the information through the Michigan State Police.

Schram recounted that the police found marijuana in about eight out of nine searches conducted pursuant to the information provided by this informant. At the time this warrant was obtained, three out of four searches conducted were successful in finding marijuana or marijuana-growing equipment. The equipment and seeds came from a company operating a mail-order business, which shipped equipment and seeds to customers.

The warrant and affidavit were both prepared on September 13, 1990. On the same day, defendant's residence was searched. As a result of that search, the police confiscated approximately fifteen small marijuana plants and eight larger ones.

The trial court denied defendant's motion to suppress the evidence obtained pursuant to the warrant.

Personal Knowledge of the Informant

M.C.L. Sec. 780.653; M.S.A. Sec. 28.1259(3), as amended by 1988 P.A. 80, effective June 1, 1988, provides in pertinent part as follows:

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 reliable.

In general, the requirement that the informant have personal knowledge seeks to eliminate the use of rumors or reputations to form the basis for the circumstances requiring a search. See People v. Brooks, 101 Mich.App. 416, 419-420, 300 N.W.2d 582 (1980), lv. den. 411 Mich. 940 (1981). The personal knowledge element should be derived from the information provided or material facts, not merely a recitation of the informant's having personal knowledge. See People v. Rosborough, 387 Mich. 183, 198-199, 195 N.W.2d 255 (1972). If personal knowledge can be inferred from the stated facts, that is sufficient to find that the informant spoke with personal knowledge. People v. Queenan, 158 Mich.App. 38, 53, 404 N.W.2d 693 (1987), lv. den. 429 Mich. 869 (1987), cert. den. 484 U.S. 1076, 108 S.Ct. 1052, 98 L.Ed.2d 1014 (1988).

We believe the specificity of the details provided by the informant in this case, regarding the shipments, dates, and defendant's name and address, were substantial indicia to support a finding that the informant spoke from personal knowledge. In addition, the affiant conducted an independent investigation that produced corroborating evidence and substantially verified the information supplied by the informant. See People v. Harris, 191 Mich.App. 422, 426, 479 N.W.2d 6 (1991). Finally, the fact that the police previously had utilized information provided by this informant in other warrant requests with successful results provided further support for the magistrate to conclude that the informant was credible and reliable. See People v. Lucas, 188 Mich.App. 554, 569-570, 470 N.W.2d 460 (1991), lv. den. 439 Mich. 885, 478 N.W.2d 165 (1991).

After reviewing the affidavit in a common-sense and realistic manner, we believe there was a substantial basis for the magistrate to conclude the informant spoke with personal knowledge and was both credible and reliable.

False Information

Defendant also argues that some of the information provided in the affidavit was false. In support, defendant relies on Schram's admission at the evidentiary hearing that on the day defendant's home was searched, another house was also searched, on the basis of an almost identical affidavit, and that search failed to turn up any drugs or drug-producing equipment. Because the affidavit in this case did not contain any reference to the unsuccessful search, defendant argues that the affidavit contained false or misleading information.

Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676-2677, 57 L.Ed.2d 667 (1978), requires that if false statements are made in an affidavit in support of a search warrant, evidence obtained pursuant to the warrant must be suppressed if the false information was necessary to a finding of probable cause. In order to prevail on a motion to suppress the evidence obtained pursuant to a search warrant procured with alleged false information, the defendant must show by a preponderance of the evidence that the affiant had knowingly and intentionally, or with reckless disregard for the truth, inserted false material into the affidavit and that the false material was necessary to a finding of probable cause. Id., at pp. 171-172, 98 S.Ct. at pp. 2684-2685; People v. Williams, 134 Mich.App. 639, 643, 351 N.W.2d 878 (1984), lv. den. 421 Mich. 860 (1985). The rule from Franks has been extended to material omissions from affidavits. People v. Kort, 162 Mich.App. 680, 685-686, 413 N.W.2d 83 (1987), lv. den. 430 Mich. 860 (1988).

After a review of the entire evidentiary hearing transcript, we do not agree with defendan...