People v. Garvin, Docket No. 203354.

• Citation: 235 Mich. App. 90,597 N.W.2d 194
• Decision Date: 09 April 1999
• Docket Number: Docket No. 203354.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Demar GARVIN and Stanley Burkett, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

597 N.W.2d 194

235 Mich. App. 90

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Demar GARVIN and Stanley Burkett, Defendants-Appellees.

Docket No. 203354.

Court of Appeals of Michigan.

Submitted September 2, 1998, at Detroit.

Decided April 9, 1999, at 9:10 a.m.

Released for Publication July 14, 1999.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, Richard H. Browne, Chief, Appellate Division, and Kathryn G. Barnes, Assistant Prosecuting Attorney, for the people.

James Daniel Shanahan, Troy, for Demar Garvin.

Enid Livingston, Birmingham, for Stanley Burkett.

Before: HOLBROOK, JR., P.J., and MARKEY and WHITBECK, JJ.

WHITBECK, J.

Defendant Demar Garvin was charged with possession with intent to deliver less than fifty grams of cocaine, second offense, M.C.L. § 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), M.C.L. § 333.7413(2); MSA 14.15(7413)(2), possession with intent to deliver marijuana, second offense, M.C.L. § 333.7401(2)(d); MSA 14.15(7401)(2)(d), M.C.L. § 333.7413; MSA 14.15(7413), two counts of possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28.424(2), and one count of being a felon in possession of a firearm, M.C.L. § 750.224f; MSA 28.421(6). Defendant Stanley Burkett was charged with carrying a concealed weapon, M.C.L. § 750.227; MSA 28.424. The prosecution appeals by leave granted from the opinion and order of the circuit court that affirmed an opinion and order of the district court that (a) suppressed evidence against defendant Garvin on the basis that the police did not provide Garvin a copy of the affidavit that had been attached to the copy of a search warrant authorizing the search of a residence that was provided to Garvin and (b) suppressed evidence against defendant Burkett on the basis that the police were not justified in searching his vehicle. We reverse and remand for further proceedings consistent with this opinion.

I. Factual Background and Procedural History

On November 18, 1993, at about 10:15 p.m., the Pontiac Police Department executed a search warrant at 605 Wyoming in Pontiac. Before the execution of the search warrant, Officer Phillip Sailor was assigned to "pre-raid surveillance" of the residence. Officer Sailor arrived at about 9:45 p.m. and thereafter saw a black Ford Bronco, that apparently was owned by Burkett, pull into the driveway. Officer Sailor then saw Burkett leave the vehicle and enter the residence.

When the police executed the search warrant, Garvin and Burkett were inside the residence. After the police entered the residence, Burkett ran from them, but was pursued by three police officers and was eventually secured. Sergeant James Webb indicated that over $3,500 in cash was recovered from Burkett's person. However, Officer Brian Flye apparently indicated that he found over $2,200 in Burkett's pants pockets.¹ In any event, it is undisputed that the police found thousands of dollars in cash on Burkett's person.

Officer Charles Herring, Jr., found $765 in cash in Garvin's right front pocket, a pager in Garvin's left front pocket, and a book with "a list of names and amounts inside" that Officer Herring described as a "tally book" in Garvin's back pocket.

During the course of the search of the interior of the residence, the police found and seized several incriminating items. The police found a .45 caliber automatic handgun, loaded with seven live rounds of ammunition, protruding from an uncovered heat register. In the basement, the police found a triple-beam scale and a cardboard box that contained a small plastic bag with about thirty-eight grams of crack cocaine on top of a dryer. The police also found six small plastic bags that appeared to have residue on them. Inside the dryer, the police found $19,645 in cash. At the bottom of the basement stairs, the police found 1 to 1 ¼ pounds of marijuana. Officer Michael Story testified that, in the living room, he "found a Perry Drug paper bag with some names of known drug dealers to us or to the Crime Control Section [of the Pontiac Police Department], written on it with phone numbers and amounts." The police also found suspected cocaine residue in the microwave oven that was in the kitchen. In one of the bedrooms of the residence, the police found about one-half of a gram of what seemed to be powdered cocaine on a dresser and about another 1 ½ grams of suspected cocaine on an armoire. Inside the dresser, the police found $860 in cash and a box of bullets. In another bedroom, the police found two small plastic bags containing marijuana on a shelf in a closet. In various locations, the police found utility bills with Garvin's name and the address of the residence.²

Eventually, Officer Vallard Gross searched the Bronco in which Burkett had arrived and found a fully loaded .380 caliber semiautomatic pistol, with its serial numbers scratched off, under the driver's seat.

After the police completed the search of the house, they either provided a copy of the search warrant to Garvin or left it at the residence, but—critically from the point of view of Garvin's argument—detached the copy of the affidavit in support of the search warrant from the copy of the warrant but did not provide the copy of the affidavit to Garvin or leave it at the residence. In granting Garvin's motion to suppress the incriminating evidence against him that was found inside the house, the district court ordered the evidence suppressed on the basis that the police did not provide or leave a copy of the affidavit supporting the search warrant with the copy of the warrant. With regard to its decision to grant Burkett's motion to suppress the gun found inside Burkett's vehicle, the district court held that the search of the vehicle was improper, including on the grounds that the vehicle was not included in the scope of the search warrant issued for the residence and that there was no independent basis for probable cause to search the vehicle.

II. Standard of Review

This Court reviews for clear error the trial court's findings of historical fact in deciding a motion to suppress evidence, but we review de novo the trial court's ultimate decision regarding a motion to suppress. People v. Goforth, 222 Mich.App. 306, 310 & n. 4, 564 N.W.2d 526 (1997). Also, "[t]his Court reviews a question of statutory interpretation de novo as an issue of law." People v. Seeburger, 225 Mich.App. 385, 391, 571 N.W.2d 724 (1997).

III. Defendant Garvin and The Failure to Provide a Copy of the Affidavit

The prosecution argues that the district court erred in suppressing evidence on the basis that the police failed to provide or leave a copy of the affidavit with a copy of the search warrant after they seized evidence from Garvin's house pursuant to M.C.L. § 780.654; MSA 28.1259(4) and M.C.L. § 780.655; MSA 28.1259(5). We agree.

MCL 780.654; MSA 28.1259(4) provides:

A search warrant shall be directed to the sheriff or any peace officer, commanding such officer to search the house, building or other location or place, where any property or other thing for which he is required to search is believed to be concealed. Each warrant shall designate and describe the house or building or other location or place to be searched and the property or thing to be seized. The warrant shall also state the grounds or the probable or reasonable cause for its issuance, or in lieu thereof, a copy of the affidavit may be attached thereto. [Emphasis supplied].

In addition, M.C.L. § 780.655; MSA 28.1259(5) states in relevant part:

When an officer in the execution of a search warrant finds any property or seizes any of the other things for which a search warrant is allowed by this act, the officer, in the presence of the person from whose possession or premises the property or thing was taken, if present, or in the presence of at least 1 other person, shall make a complete and accurate tabulation of the property and things so seized. The officer taking property or other things under the warrant shall forthwith give to the person from whom or from whose premises the property was taken a copy of the warrant and shall give to the person a copy of the tabulation upon completion, or shall leave a copy of the warrant and tabulation at the place from which the property or thing was taken. [Emphasis supplied].

"The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute." USAA Ins. Co. v. Houston General Ins. Co., 220 Mich.App. 386, 389, 559 N.W.2d 98 (1996) (citations omitted).

MCL 780.654; MSA 28.1259(4) states that a copy of the affidavit "may" be attached to the warrant in lieu of an explanation of probable cause on the face of the warrant. MCL 780.655; MSA 28.1259(5) mandates that the police provide a copy of the warrant with a tabulation of items seized to the person from whom or from whose "premises" or "place" the items were taken or leave a copy of the warrant and tabulation at the place of the search. However, because the Legislature did not plainly express whether a copy of the affidavit necessarily becomes part of the "copy of the warrant" that must be provided or left pursuant to M.C.L. § 780.655; MSA 28.1259(5), it is not clear from the plain language of these statutory sections whether a copy of the affidavit must be left with a copy of the warrant after the search has been completed. Nevertheless, given that the Legislature has phrased as a general requirement that a warrant state the probable cause (or other grounds) for its issuance and that the copy of the warrant provided or left by law enforcement officers should include a statement of the probable cause for its issuance, we conclude that where a supporting...