People v. Broilo, Docket No. 19366

• Citation: 58 Mich.App. 547,228 N.W.2d 456
• Decision Date: 12 February 1975
• Docket Number: Docket No. 19366,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Edward John BROILO, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 456

228 N.W.2d 456

58 Mich.App. 547

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Edward John BROILO, Defendant-Appellee.

Docket No. 19366.

Court of Appeals of Michigan, Division No. 1.

Feb. 12, 1975.

Released for Publication May 7, 1975.

Robert Mann, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert Horn, Asst. Pros. Atty., for defendant-appellee.

Before BASHARA, P.J., and DANHOF and VanVALKENBURG, ^* JJ.

VanVALKENBURG, Judge.

This appeal, brought by the Prosecuting Attorney, centers on the question of whether a Recorder's Court Judge abused his discretion in suppressing a search warrant and the evidence obtained in the resulting search.

The warrant, issued after midnight on November 8, 1973, permitted officers to search premises at 7787 Brace Street, in the City of Detroit. The facts relating thereto will be discussed in connection with the three sub-issues herein presented.

The statute providing the procedure for obtaining search warrants, M.C.L.A. § 780.651; M.S.A. § 28.1259(1), reads:

'When an affidavit is made on oath to a magistrate authorized to issue warrants in criminal cases and when the affidavit establishes the grounds for issuing a warrant pursuant to this act, the magistrate, if he is satisfied that there is a reasonable or probable cause therefor, shall issue a warrant to search the house, building or other location or place where the property or thing which is to be searched for and seized is situated.'

Following the two introductory paragraphs of the affidavit, paragraphs 3 and 4 refer to sales of phencyclidine made to a confidential source on September 25 and 27, 1973. Neither of these paragraphs mention the fact that the officers possessed a warrant for the arrest of the defendant.

During the arguments on the motion to quash, the following colloquy transpired:

'The Court: * * * I'd like to see that affidavit too. Because I wonder if they recite that there is a warrant issued and outstanding in that affidavit.

'Mr. Schigur (assistant prosecutor): No, I don't think it does.

'The Court: No. Would you say that's a lack of candor?

'Mr. Schigur: Here is the affidavit.

'The Court: The search warrant was issued on the 8th day of November, 1973. Yes, there is no mention of the fact that there was an outstanding warrant on that basis. I don't really need the officer's testimony on that basis because the affidavit, the search warrant on its face hows a lack of candor on the police department in presenting the facts to the Magistrate who issued the warrant. On that basis alone, I will hold that the affidavit for the search warrant, based on the information that they had was insufficient and I will suppress the search warrant, suppress the evidence.'

It should be noted that the assistant prosecutor did not answer the question as to the lack of candor, but left it entirely to the court.

Defendant's first contention is that the drug sales to a police undercover agent, which were principal constituents of the probable cause for the search warrant, were too stale because they were made 42 and 44 days before issuance of the warrant. The prosecutor's rejoinder is to note the established distinction between possession cases and sale/delivery cases and argue that the facts of the sales 'while not establishing probable cause for a charge of sale of narcotics, do provide probable cause for possession of narcotics'.

The prosecutor's argument is inapposite, however, because defendant was charged in the instant case with possession with intent to deliver, not merely with possession. The former crime is distinct from the latter under the Controlled Substances Act of 1971, M.C.L.A. § 335.341; M.S.A. § 18.1070(41).

The controlling rule where there has been a substantial delay between observation of criminal activity and issuance of a search warrant based thereon is, as stated in People v. Chippewa Circuit Judge, 226 Mich. 326, 197 N.W. 539 (1924), that no warrant may issue except upon a showing of intervening facts that give reasonable cause to believe that the criminal activity is continuing and presently occurring. Accord, People v. Wright, 367 Mich. 611, 116 N.W.2d 786 (1962), People v. Siemieniec, 368 Mich. 405, 118 N.W.2d 430 (1962). These cases have held that, absent a showing of intervening facts, even six and four day intervals after the observations of criminal activities negate them as bases for issuance of search warrants.

In the instant case, however, the only showing of intervening facts is contained in the fifth paragraph of the affidavit for the search warrant which is based on a surveillance of 7787 Brace Street between September 25, 1973 and November 5, 1973:

'During which time the affiant observed an unusual number of persons entering and exiting the premises.'

This type of information in affidavits originated during the prohibition era and it is well settled that there must be something more than the mere fact that people were coming and going in order to give reasonable cause to believe that the criminal activity is continuing and...