People v. Hawkins, Docket No. 120437

• Court: Supreme Court of Michigan
• Citation: 468 Mich. 488,668 N.W.2d 602
• Decision Date: 20 June 2003
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Christopher Lamar HAWKINS, Defendant-Appellee. People of the State of Michigan, Plaintiff-Appellant, v. Michael Brandon Scherf, Defendant-Appellee.
• Docket Number: Docket No. 14.,Docket No. Calendar,Docket No. 120437,Docket No. 121698,Docket No. 13

668 N.W.2d 602
468 Mich. 488

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Christopher Lamar HAWKINS, Defendant-Appellee.
People of the State of Michigan, Plaintiff-Appellant,
v.
Michael Brandon Scherf, Defendant-Appellee

Docket Nos. 120437, 121698, Calendar Nos. 13, 14.

Supreme Court of Michigan.

Argued December 11, 2002.

Decided June 20, 2003.

668 N.W.2d 604

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and T. Lynn Hopkins, Assistant Prosecuting Attorney, Grand Rapids, MI, for the people in Hawkins

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Larry J. Burdick, Prosecuting Attorney, and Roy R. Kranz, Assistant Prosecuting Attorney, Mt. Pleasant, MI, for the people in Scherf.

Nieuwenhuis Law Offices, P.C. (by Helen C. Nieuwenhuis), Grand Rapids, MI, for defendant Hawkins.

Hall & Lewis, P.C. (by John W. Lewis), Mt. Pleasant, MI, for defendant Scherf.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and David C. Cannon, Assistant Attorney General, Livonia, MI, for the Department of Attorney General.

Joseph K. Sheeran, President, Michael E. Duggan, Prosecuting Attorney, Olga Agnello, Principal Attorney, Appeals, Detroit, MI, for the Prosecuting Attorneys Association of Michigan.

Ronald J. Bretz [Thomas M. Cooley Law School], Lansing, MI, for the Criminal Defense Attorneys of Michigan.

David Morse, President, Michael E. Duggan, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, Detroit, MI.

668 N.W.2d 603

Opinion

YOUNG, J.

We granted leave to appeal in these cases to consider whether the lower courts properly applied the exclusionary rule to evidence seized pursuant to (1) a search warrant that was issued in violation of M.C.L. § 780.653 and (2) a bench warrant that was issued in violation of MCR 3.606(A).

Because we conclude that neither the statute nor the court rule contemplates application of the exclusionary rule, we reverse in both cases. In People v. Hawkins (see unpublished opinion per curiam of the Court of Appeals, issued September 28, 2001, 2001 WL 1152936 [Docket No. 230839]), we hold that evidence of firearms and cocaine seized pursuant to a search warrant should not have been suppressed on the ground that the warrant was issued in violation of the affidavit requirements of M.C.L. § 780.653(b). In People v. Scherf (see 251 Mich.App. 410, 651 N.W.2d 77 [2002]), we hold that evidence of marijuana seized from defendant following his arrest should not have been suppressed on the ground that the bench warrant pursuant to which he was arrested was issued in violation of the affidavit requirements of MCR 3.606(A).

I. FACTUAL¹ AND PROCEDURAL BACKGROUND

A. PEOPLE v. HAWKINS

Detective Todd Butler of the Grand Rapids Police Department received tips from two informants that illegal controlled substances were being sold from a residence

668 N.W.2d 605

located at 921 Humbolt, S.E., in Grand Rapids. On the basis of the information provided by these sources, Butler sought a search warrant to search the residence. Butler's affidavit set forth the following facts in support of the issuance of the warrant

1. Your affiant received information from an informant on 10/14/99 that the resident of 921 Humbolt S.E. was involved in the sale of narcotics. The informant stated the residence [sic] is selling the controlled substance crack cocaine. The informant described the resident and seller of the controlled substance as "Chris," B/M, approx. 20, 5'8", 170[lbs], medium build/complexion, short hair.

2. Your affiant met with a reliable and credible informant on 11/3/99. Your affiant was advised that the informant had observed the controlled substance cocaine available for sale from the residence within the past 36 hours.

3. Your affiant was advised by the informant the entry door to the suspects [sic] apartment has been reinforced to delay a police entry.

On November 3, 1999, a judge of the 61st District Court issued the requested warrant, and the residence was searched the same day. During the search, police seized two stolen firearms, approximately 20 grams of cocaine, and other contraband. Defendant, who was not present during the search, was stopped by police while driving his vehicle. Defendant was then arrested and later bound over for trial on several charges.²

Defendant sought suppression of the evidence seized in the execution of the search warrant, arguing that the affidavit in support of the warrant was constitutionally deficient in that it did not support a finding of probable cause, the information it contained was stale, and it did not clearly reveal whether one or two informants had supplied the information. Defendant additionally contended that the affidavit did not meet the requirements of M.C.L. § 780.653(B) because it did not include information concerning the credibility of the unnamed informants or the reliability of the information they supplied.

The circuit court granted defendant's motion to suppress the evidence and dismissed the case on the grounds that the affidavit was both constitutionally deficient and in violation of M.C.L. § 780.653. The court declined the prosecutor's invitation to apply the federal "good-faith exception," under which the Fourth Amendment exclusionary rule is not applicable to evidence seized by officers acting in reasonable reliance on a warrant that is subsequently adjudged constitutionally deficient.³

On appeal, the Court of Appeals affirmed the circuit court's order to suppress evidence on the sole basis that the affidavit supporting the search warrant did not meet the requirements of M.C.L. § 780.653. Op. at 604. The panel concluded that People v. Sloan, 450 Mich. 160, 538

668 N.W.2d 606

N.W.2d 380 (1995), in which this Court held that evidence obtained under a search warrant issued in violation of § 653 must be suppressed, was dispositive. Op. at 604. Accordingly, the panel declined to address the constitutionality of the warrant or the prosecution's argument that the good-faith exception was applicable. Id. at 605

We granted the prosecution's application for leave to appeal to this Court, limited to the issue whether the exclusionary rule applies to a violation of § 653. 466 Mich. 860, 643 N.W.2d 578 (2002).

B. People v. Scherf

In a prior case, defendant pleaded guilty of manufacturing with intent to deliver between five and forty-five kilograms of marijuana in violation of M.C.L. § 333.7401(2)(D)(ii) and was sentenced to probation. Defendant allegedly moved out of Michigan without permission and thereafter failed to report to his probation officer in violation of two of the terms of his probation. Consequently, defendant's probation officer filed a standard form petition requesting that a bench warrant be issued for his arrest. The petition contained the following statements:

Petitioner requests that a bench warrant be issued and Michael Brandon Scherf be arrested and held in contempt of court for the following reason(s):

Violation of Rule Number 3: The defendant has failed to report as ordered and his whereabouts are unknown. Violation of Rule Number 4: Failure to notify agent of change of address.

The petition contained the statement, "I declare that the statements above are true to the best of my information, knowledge, and belief," and was signed by the probation officer. The district court issued the requested bench warrant.

Subsequently, police were interviewing defendant in connection with an unrelated larceny complaint when they discovered, via the Law Enforcement Information Network (LEIN), the outstanding bench warrant for his arrest. Defendant was arrested pursuant to the warrant. During a search incident to the arrest, police seized several grams of marijuana from defendant's person. Thereafter, defendant was charged with possession of marijuana in violation of M.C.L. § 333.7403(2)(d).

Defendant sought suppression of evidence of the marijuana on the ground that the bench warrant petition was technically deficient in that it was not supported by affidavits as required by MCR 3.606(A), which governs contempt offenses committed outside the immediate presence of the court. The prosecutor conceded that MCR 3.606(A) was violated because no affidavit was submitted in support of the probation officer's petition. The prosecutor argued, however, that the district court division of the Isabella County Trial Court should apply the federal "good-faith exception" to the exclusionary rule.

The district court division denied defendant's motion, holding that the bench warrant petition was confirmed by oath or affirmation and was therefore properly issued. Additionally, the district court division noted that it found Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995), which reaffirmed and applied the good-faith exception, to be persuasive authority.

Defendant appealed, and the circuit court reversed the district court division's order, granted defendant's motion to suppress the marijuana evidence, and dismissed the case. The court held that although the failure to provide an affidavit with the bench warrant petition was merely "technical," it rendered the warrant invalid. The court rejected the prosecutor's

668 N.W.2d 607

argument that the good-faith exception was applicable, stating on the record that the exception was not recognized in Michigan.

The prosecutor sought leave to appeal to the Court of Appeals, asserting that the good-faith exception should be applied under the circumstances. The Court granted the prosecutor's application and affirmed the circuit court division's order. 251 Mich.App. 410, 651 N.W.2d 77. The majority⁴ noted that the bench warrant petition "was not supported by an affidavit as required by MCR 3.606," id. at 411, 651 N.W.2d 77, and that "it is undisputed that defendant's arrest, and...