People v. Hentkowski, Docket No. 84210
| Decision Date | 29 December 1986 |
| Docket Number | Docket No. 84210 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald J. HENTKOWSKI, Defendant-Appellant. 154 Mich.App. 171, 397 N.W.2d 255 |
| Court | Court of Appeal of Michigan — District of US |
[154 MICHAPP 172] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Donald J. McLennan, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for the People.
State Appellate Defender by Derrick A. Carter, for defendant-appellant on appeal.
Before MAHER, P.J., and T.M. BURNS and BELL, * JJ.
After a bench trial, defendant was convicted of possession with intent to deliver a controlled substance (marijuana), M.C.L. Sec. 333.7401, subds. (1) and (2)(c); M.S.A. Sec. 14.15(7401), subds. (1) and (2)(c), possession of less than fifty grams of a mixture containing a controlled substance (cocaine), M.C.L. Sec. 333.7403, subds. (1) and (2)(a)(iv); M.S.A. Sec. 14.15(7403), subds. (1) and (2)(a)(iv), and two counts of delivery of a controlled substance (marijuana), M.C.L. Sec. 333.7401, subds. (1) and (2)(c); M.S.A. Sec. [154 MICHAPP 173] 14.15(7401), subds. (1) and (2)(c). Defendant received concurrent sentences of five years probation on each offense. The first year was to be served in county jail. Costs and fines were also imposed and defendant was given one day's credit for time served. Defendant now appeals as of right. We affirm the delivery convictions, but reverse the possession convictions.
Defendant's delivery convictions arose out of two controlled buys initiated by an agent working for the police department. The possession convictions arose out of evidence discovered during a search of defendant's home.
Prior to trial, defendant moved to quash the information, arguing that he had been entrapped. He also moved to suppress the physical evidence which was seized from his home based on deficiencies in the search warrant, on deficiencies in the affidavit in support of the search warrant, and on the issuing magistrate's lack of neutrality. The trial court denied defendant's motions. Defendant now claims that the trial court erred in denying each of his motions.
Michigan employs an objective test for determining whether entrapment has occurred. People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973). The objective test requires a trial court to dismiss charges against a defendant when agents of the government engage in activity which goes beyond the mere offering of an opportunity to commit a criminal offense. The agents' conduct must be of the kind that could induce or instigate the commission of a crime by one not ready and willing to commit it regardless of the character or propensities of the particular person induced. Turner, supra[154 MICHAPP 174] ; People v. D'Angelo, 401 Mich. 167, 173-174, 257 N.W.2d 655 (1977).
A defendant has the burden of proving, by a preponderance of the evidence, that he was entrapped. People v. D'Angelo, supra, p. 183, 257 N.W.2d 655. The trial court's findings of fact in regard to the entrapment issue are reviewed under the clearly erroneous standard. Id. See also MCR 2.613(C).
Defendant accuses the police of exploiting his friendship with the agent who made the drug purchases. Defendant also contends that the police placed undue pressure on him. A review of the record indicates that this case is distinguishable from those cases in which friendships are exploited or in which undue pressure is placed on a defendant.
While defendant testified that the police agent was a friend of his, the agent's testimony indicated that the two were not friends and that the agent did not know defendant personally. Rather, his main contact with defendant was in regard to the purchase of drugs. The trial court made explicit findings of fact in this regard. The court found that defendant was not a friend of the agent. This finding is not clearly erroneous. Thus, under the circumstances of this case, the police did not unduly exploit an existing friendship.
Defendant also contends that the police placed undue pressure on him which forced him into committing the crime. Defendant testified that the police agent indicated that he needed the drugs in order to sell them so that he could come up with money to pay attorney fees in a pending case. Defendant argues that, because the agent requested the drugs for this reason and because the agent was persistent in his request, undue pressure was placed on defendant. We disagree. In a situation where the seller and the purchaser are [154 MICHAPP 175] merely acquaintances, the purchaser's statement of such a reason for needing drugs is not sufficient to establish entrapment. This is not the type of conduct which would induce the commission of a crime by one not ready and willing to commit it. This is especially true in this case since defendant was aware that the agent was also employed.
The trial court's findings on the entrapment issue are not clearly erroneous. Defendant did not carry his burden in establishing entrapment.
Defendant's two possession convictions were based on evidence which was seized after a search warrant was purportedly issued authorizing the items to be seized. Defendant contends that the trial court erred in denying defendant's motion to suppress the evidence because the search warrant had not been signed by the magistrate. We agree.
On February 25, 1984, an affidavit in support of a warrant was sworn to and presented to the magistrate. The magistrate, however, inadvertently failed to sign the warrant. Rather, he signed only the affidavit, acknowledging that the affidavit was subscribed and sworn to before the magistrate on February 25, 1984. Despite the fact that the warrant was not signed, police officers executed the warrant that same day. On February 28, 1984, after discovering that the warrant had not been signed, the magistrate signed the warrant. However, as noted, the search had already taken place.
For the purposes of our analysis, we will assume that the police had probable cause to search the premises. However, the existence of probable cause does not in and of itself make a search constitutionally proper. Both the Fourth Amendment to the United States Constitution and the corresponding[154 MICHAPP 176] provision of the Michigan Constitution, Const.1963, art. 1, Sec. 11, contain a warrant requirement. The warrant requirement protects individual privacy from unrestrained exercise of governmental power. People v. Tyler, 399 Mich. 564, 584, 250 N.W.2d 467 (1977), aff'd in part, rev'd in part sub nom Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1977). The warrant requirement is not to be taken lightly. A search or seizure which is undertaken without a warrant or pursuant to an invalid search warrant is unreasonable per se under the Fourth Amendment to the United States Constitution and violates art. 1, Sec. 11 of the Michigan Constitution unless shown to fall within one of the various exceptions to the warrant requirement. See People v. Tyler, supra; People v. Oliver, 417 Mich. 366, 338 N.W.2d 167 (1983); People v. Nash, 418 Mich. 196, 341 N.W.2d 439 (1983).
In this case, there is no asserted exception to the warrant requirement. The question for this Court is whether, in a situation where a search warrant is required, a search and seizure which takes place pursuant to an unsigned document is constitutional. We hold that it is not. 1
Article 1, Sec. 11 of the Michigan Constitution states in relevant part:
Several considerations lead us to believe that an unsigned document cannot validate a search and seizure when there is no exception to the warrant requirement. First, the placement of a signature on a document would distinguish an actual "warrant" from other proposed documents drafted by law enforcement agencies which never actually become enforceable warrants. Second, in order for the police to obtain a warrant, the constitution requires that one must "issue." See also M.C.L. Sec. 780.651; M.S.A. Sec. 28.1259(1). We believe that a magistrate "issues" a "warrant" only when he signs an appropriate document and turns it over to the proper person. We agree with the reasoning set forth in Connecticut v. Surowiecki, 184 Conn. 95, 440 A.2d 798 (1981), regarding similar language contained in a Connecticut statute. There, the Connecticut court stated:
"The only issue on appeal is: Does the lack of a signature of a judge on a search warrant invalidate it even though the same judge found probable cause, but failed to sign the search warrant because of an oversight?
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