People v. Gleason

• Decision Date: 06 May 1983
• Docket Number: Docket No. 58970
• Citation: 333 N.W.2d 85,122 Mich.App. 482
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dennis GLEASON, Defendant-Appellee. 122 Mich.App. 482, 333 N.W.2d 85
• Court: Court of Appeal of Michigan — District of US

Page 85

333 N.W.2d 85

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dennis GLEASON, Defendant-Appellee.

Docket No. 58970.

122 Mich.App. 482, 333 N.W.2d 85

Court of Appeals of Michigan.

Submitted June 30, 1982.

Decided Jan. 19, 1983.

Released for Publication May 6, 1983.

[122 MICHAPP 485] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Anthony A. Monton, Pros. Atty., and Leonard J. Malinowski, Asst. Atty. Gen., for the People.

John W. Thornton, Jr., Muskegon, for defendant-appellee on appeal.

Before KELLY, P.J., and MAHER and TAHVONEN, ^* JJ.

MAHER, Judge.

On April 18, 1981, defendant was bound over to circuit court on a charge of delivery of marijuana, M.C.L. Sec. 333.7401, subds. (1) and (2)(c); M.S.A. Sec. 14.15(7401), subds. (1) and (2)(c). On June 24, 1981, the circuit court suppressed the [122 MICHAPP 486] evidence and dismissed the case. The people appeal as of right.

On March 27, 1981, the Hesperia Police Department executed a search warrant supported by the following affidavit:

"1. Affiant is a Sgt. with the Hesperia Police Department, Oceana County, Michigan, and is a resident of the County of Oceana.

"2. The Department has had information, suspicions, investigations with regard to said premises described above to be searched as being used in conjunction with the sale and delivery of the contolled [sic ] substance marijuana.

"3. That a confidential informant has provided information based upon his/her personal knowledge that he/she has purchased a substance represented to him or her to be marijuana at the home and residence herein described within the last 24 hours, and that such informant spoke with his/her personal knowledge and has made admissions against his or her penal interest.

"4. That the above informant's information is further corroborated by another seperate [sic ] distinct confidential informant who has in the last two months provided information that he/she had purchased a substance represented to him/her to be marijuana at the same home and residence described above and as indicated by the informant in paragraph 3, and that this informant has provided to the Hesperia Police Department information in the past which has proven reliable.

"5. That the informants herein fear for their personal safety and therefore, remain confidential."

The people appeal from the circuit court's order suppressing the evidence and dismissing the case. We have concluded that the affidavit is fatally deficient and, therefore, we affirm.

I

We must first determine the appropriate standard[122 MICHAPP 487] of review. In People v. Iaconis, 29 Mich.App. 443, 454, 185 N.W.2d 609 (1971), this Court set forth the correct standard of review of affidavits under the federal constitution: ¹

"[A] reviewing court will sustain a magistrate's determination of probable cause so long as there is a substantial basis to conclude that narcotics are probably present * * *."

In addition to the sufficiency-of-the-affidavit issue, the Iaconis Court also addressed the defendants' claim that there was insufficient evidence to support the magistrate's decision to bind them over for trial. In the course of rejecting this claim, the Court referred to the well-established rule that "[t]his Court may not substitute its judgment for that of the magistrate unless there has been a clear abuse of discretion in his determination of probable cause". 29 Mich.App. 462, 185 N.W.2d 609.

In People v. Thomas, 86 Mich.App. 752, 759, 273 N.W.2d 548 (1978), this Court lifted the foregoing language out of context from the Iaconis Court's discussion of the bind-over issue, and applied it to a determination of the sufficiency of an affidavit:

"Quoting further from Iaconis, supra, 29 Mich.App. at 462, 185 N.W.2d 609, it was concluded that

" 'This Court may not substitute its judgment for that of the magistrate unless there has been a clear abuse of discretion in his determination of probable cause.' (Citations omitted.)"

It is quite apparent that the Iaconis Court did not employ an abuse-of-discretion standard in reviewing the sufficiency of an affidavit. Moreover, [122 MICHAPP 488] analysis of the four cases ² relied upon by the Iaconis Court in support of its reference to an abuse-of-discretion standard reveals that all four cases involved a bind-over issue, and not the sufficiency of an affidavit. Thus, it is abundantly clear that the Thomas abuse-of-discretion standard is, to say the least, of rather dubious parentage.

Surprisingly enough, at least four panels of this Court have uncritically accepted the Thomas Court's misreading of Iaconis. See People v. Price (On Remand ), 91 Mich.App. 328, 332, 283 N.W.2d 736 (1979); ³ People v. Atkins, 96 Mich.App. 672, 678, 293 N.W.2d 671 (1980); People v. Heiler, 97 Mich.App. 636, 638, 296 N.W.2d 10 (1980), and People v. Dinsmore, 103 Mich.App. 660, 674, 303 N.W.2d 857 (1981). Thus has a mountain of authority risen upon a foundation of sand.

The time has come for this Court to debunk Thomas and its illegitimate progeny. ⁴ The abuse-of-discretion standard of review, although proper in the context of bind-over issues, should not be employed by courts reviewing a magistrate's determination of the sufficiency of an affidavit.

A magistrate has a considerable advantage over a reviewing court with respect to a bind-over decision, since such a decision typically requires an assessment of the credibility of the witnesses who testify at the preliminary hearing. While a reviewing court must work from a cold record, a magistrate has the opportunity to observe the demeanor of witnesses.

[122 MICHAPP 489] In contrast, a magistrate is no more qualified than a reviewing court to determine whether probable cause may be found within the four corners of an affidavit. Such a determination is essentially a question of law. Although a magistrate's finding that an affidavit establishes probable cause is entitled to deference in marginal cases, see Iaconis, supra, 29 Mich.App. p. 457, 185 N.W.2d 609, and should normally be sustained where a substantial basis exists for such a finding, an "abuse of discretion" standard would undermine the Fourth Amendment's command that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation * * *". ⁵

Thus, it is apparent that the Thomas abuse-of-discretion standard is wrong as a matter of policy, [122 MICHAPP 490] and also as a matter of precedent. We conclude that where a magistrate's finding that an affidavit establishes probable cause is not supported by a sufficiently substantial basis, the magistrate's decision shall be reversed even if it does not constitute a clear abuse of discretion.

II

We turn now to an assessment of the sufficiency of the affidavit before us in the case at bar. Paragraph 1 merely establishes the reliability of the affiant. Paragraph 5 merely attempts to excuse the affiant's failure to identify the informants. ⁶ Paragraph 2 is worthless; no probative value can be assigned to a police department's unsupported and unspecified "information, suspicions [and] investigations". Thus, if probable cause is to be found, it must be found in Paragraphs 3 and 4.

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), established a two-prong test for determining probable cause when an informant is used. First, the affidavit must sufficiently provide the underlying circumstances to allow the magistrate to judge independently whether or not the drugs are presently where they are alleged to be. Second, sufficient underlying circumstances must establish the informant's credibility or the reliability of the information. Under Aguilar, Paragraph 3 is deficient in at least two respects. First of all, the confidential informant did not state that he had purchased marijuana at the premises described in the affidavit but, rather, "a substance represented to him * * * to be marijuana". Secondly, the informant did not state that he had observed other [122 MICHAPP 491] quantities of marijuana in the residence in addition to the amount he had allegedly purchased. Thus, the informant gave no concrete indication that any marijuana remained at the premises after his departure.

Finally, Paragraph 3 completely fails Aguilar's "second prong", since the affidavit provides no indication of the informant's reliability. Although the affidavit states that the informant had made "admissions against his * * * penal interest", the affiant does not specify the nature of those damaging admissions. Presumably the good officer was referring to the informant's admission that he had purchased marijuana. However, although a statement against penal interest may be weighed by a magistrate in assessing an informant's credibility, see United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), not every statement against penal interest is sufficiently trustworthy to be considered in this regard. Rather, a magistrate may base his assessment of credibility on a statement against penal interest only where the statement "so far tended to subject [the informant] to * * * criminal liability * * * that a reasonable person in his position would not have made the statement unless he believed it to be true". MRE 804(b)(3). Thus, an affiant may not establish an informant's credibility merely by stating in a conclusory fashion that the informant has made statements against his penal interest; rather, the affiant must specifically identify any such statements and must also specify the circumstances under which the statements were made. ⁷ Since Paragraph 3 supplies no basis[122 MICHAPP 492] ⁸ for the magistrate to assess the credibility of the informant, it is...