People v. Franks
Decision Date | 13 August 1974 |
Docket Number | No. 1,Docket No. 17596,1 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis C. FRANKS, Defendant-Appellant |
Court | Court of Appeal of Michigan — District of US |
Joseph Covington, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas R. Khalil, Asst. Pros. Atty., for plaintiff-appellee.
Before LESINSKI, C.J., and J. H. GILLIS and BRONSON, JJ.
Defendant Dennis C. Franks was charged with unlawful possession of marihuana with intent to deliver, M.C.L.A. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c). This Court granted defendant leave to appeal following the trial court's denial of his motion to suppress the evidence of his possession of marihuana.
Defendant contends that the search warrant purportedly authorizing the seizure of this evidence failed to describe the place to be searched with the degree of particularity required by U.S.Const. Amend. IV; Const.1963, art. 1, § 11, and M.C.L.A. § 780.654; M.S.A. § 28.1259(4). 1
The salient facts surrounding the issuance of this warrant and the search and seizure resulting in defendant's arrest are as follows: Between May 12, 1972 and June 24, 1972 Detroit police officers observed known narcotics users arriving at 19840 Winston, staying a short while and then leaving. The house described at 19840 Winston is a 1 1/2 story dwelling painted green with white trim, located in the city of Detroit. From its outward appearance it gave every indication of being a single family residence. On June 21, 1972, an informant whose reliability and credibility were sworn to by Police Officer Douglas Tally, went to 19840 Winston and purchased bulk heroin from a man known as 'Ed'. On June 22, 1972, on the basis of this information sworn to by Officer Tally, Judge Joseph P. Maher issued a search warrant for 'heroin, other narcotic drugs and paraphernalia'. The specific description of the place to be searched was:
On that same date police officers executed this warrant on 19840 Winston. There were 14 people in the house at the time that police officers approached the door, were refused admittance, and thereupon forced the door open. Once inside the house they conducted a general search of the premises. Defendant was in the southeast bedroom of the dwelling with four other people. Upon entry into defendant's room police officers observed a man bending over a brown paper bag in the center of the room. An examination of the contents of this bag disclosed 818.30 grams of marihuana.
Defendant contends that 19840 Winston is a collective in which he rented and had exclusive occupancy and control of the southeast bedroom in which the marihuana was seized. Defendant has maintained that the search warrant's failure to describe his room as a place to be searched made the warrant and accompanying search and seizure constitutionally defective. Accordingly, he argues that the trial court should have granted his motion to suppress.
We note at the outset of this opinion that the courts of this State have never delineated the specificity required in a search warrant's description of the place to be searched where the multi-unit character of the premises is not apparent. Nevertheless, we believe that there is ample Federal and state authority on this matter. See 11 A.L.R.3d 1330.
As a basic proposition of law it has long been recognized that a search warrant which fails to specify a known sub-unit is constitutionally defective. Tynan v. United States, 297 F. 177 (C.A.9, 1924), cert. den. 266 U.S. 604, 45 S.Ct. 91, 69 L.Ed. 463 (1924). Consequently, where a known apartment building, hotel, or rooming house is involved, the warrant must specify the appropriate sub-unit to be valid. United States v. Barkouskas, 38 F.2d 837 (M.D.Pa.1930); United States v. Mitchell, 274 F. 128 (N.D.Cal.1921).
In United States v. Hinton, 219 F.2d 324, 325 (C.A.7, 1955), the Court stated:
In United States v. Esters, 336 F.Supp. 214 (E.D.Mich., 1972), Judge Cornelia Kennedy stated that where officers involved do not know that the structure is a two-family dwelling 'the test is whether they should have known that the building was not a one-family home'.
In Esters the Court granted a motion to suppress where it found that 'a person who made a reasonable observation of the premises should have known that the structure at 4637 Newport was a two-family dwelling'. In so ruling the Court distinguished a series of cases which had held that where officers are unable to determine the two-family character of a dwelling, a warrant is nonetheless valid. The Court stated at 221:
In Owens v. Scafati, 273 F.Supp. 428, 429 (D.Mass.1967), cert. den. 391 U.S. 969, 88 S.Ct. 2043, 20 L.Ed.2d 883 (1968), a search warrant was held to describe the premises to be searched with sufficient particularity in spite of its failure to recognize the dwelling's multi-unit character, where:
'There has been no showing that the police officers knew or should have known from its physical appearance that 1 Thomas Park was a multiple dwelling house when they applied for the warrants.'
In United States v. Ramos, 282 F.Supp. 354 (S.D.N.Y., 1968), a search made pursuant to a warrant describing the place to be searched as '130 W. 74th Street, Basement Apt. New York, N.Y.' was held valid even though there was more than one basement apartment. The Court stated at 355:
'(I)t would have been impossible to discover that there was more than one basement apartment until after the rooms in the basement had been searched.'
Again in United States v. Santore, 290 F.2d 51 (C.A.2, 1960), cert. den., 365 U.S. 834, 81 S.Ct. 749, 5 L.Ed.2d 744 (1961), the validity of the search warrant turned on the ability of the officers, upon making a reasonable observation, to determine whether the structure was a two-family dwelling. In Santore the Court held that from all outward appearances, the dwelling in question appeared to be a one-family house and therefore a warrant which so described it was valid.
Absent a finding by the trial court that the police officers knew or should have known when they obtained the search warrant that the building involved...
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