People v. Kinnebrew

• Decision Date: 18 April 1977
• Docket Number: Docket No. 27375
• Citation: 75 Mich.App. 81,254 N.W.2d 662
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert KINNEBREW, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 662

254 N.W.2d 662

75 Mich.App. 81

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert KINNEBREW, Defendant-Appellee.

Docket No. 27375.

Court of Appeals of Michigan.

April 18, 1977.

Released for Publication June 22, 1977.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward R. Wilson, Appellate Chief, Detroit, Timothy A. Baughman, Asst. Pros. Atty., for plaintiff-appellant.

Patrick H. Oliver, Detroit, for defendant-appellee.

Before ALLEN, P. J., and D. E. HOLBROOK and RILEY, JJ.

ALLEN, Presiding Judge.

Defendant was charged with knowingly or intentionally possessing cocaine, M.C.L.A. § 335.341(4)(b); M.S.A. § 18.1070(41)(4)(b). Following his arraignment in the trial court, the defendant filed a motion to suppress evidence seized by the police while executing a search warrant. The defendant argued that the warrant's description of the premises to be searched was not sufficiently specific. The request for the warrant had been supported by an affidavit reciting information received from an unnamed informant. The trial judge stated that he could not make a final ruling on the motion to suppress without an in camera questioning of the informant. When the prosecution refused to produce the informant, the trial judge dismissed the charge against the defendant. The People have now perfected a delayed appeal by leave granted. GCR 1963, 803.3.

The prosecutor first argues that the trial judge could not consider a motion to suppress because the fact that the defendant was bound over for trial obviously implies that the magistrate who conducted the preliminary examination felt that the evidence was admissible. The evidentiary question was never presented to the examining magistrate. By filing his motion to suppress prior to trial, the defendant was following the proper procedure. Similarly, the trial judge acted correctly by holding a separate evidentiary hearing to consider the ruling. People v. Carroll, 396 Mich. 408, 240 N.W.2d 722 (1976). The trial judge was free to exercise his own judgment concerning the defendant's motion. And, contrary to the prosecutor's alternative argument, the trial judge was free to consider testimony in addition to that contained in the preliminary examination record. People v. Lauderdale, 17 Mich.App. 191, 169 N.W.2d 171 (1969).

The defendant's motion to suppress is posited on the grounds that the search warrant's description of the premises to be searched was not sufficiently specific. The constitutions of both Michigan and the United States state that a warrant shall not issue without "particularly describing the place to be searched". U.S.Const., Am. IV; Const.1963, art. 1, § 11. The cases interpreting those provisions have uniformly held that, where a multiple unit building is involved, the warrant must specify the particular sub-unit to be searched. People v. Franks, 54 Mich.App. 729, 221 N.W.2d 441 (1974); Annotation: Search Warrant: Sufficiency of Description of Apartment or Room to be Searched in Multiple-Occupancy Structure, 11 A.L.R.3d 1330. The facts in the present case point up the need for that rule. The building in this case has two apartments, one upstairs and one downstairs. The police informant purchased narcotics in the upstairs apartment from an individual who has not yet been apprehended. The present defendant was not involved in that sale. The police and the magistrate who issued the search warrant apparently were under the impression that the building was a single dwelling unit. When the police executed the warrant, they discovered the defendant and the evidence which is now sought to be suppressed in the downstairs apartment. That unit would not have been entered if the warrant had authorized a search only of the unit in which the informant made his purchase. ¹

Because the house contained two separate dwelling units and the warrant did not mention that fact or specify which unit was to be searched, the description in the warrant was not sufficiently specific. People v. Franks, supra. However, that defect does not automatically require suppression of evidence seized when the warrant was executed. It is easy to understand why the police were not aware of the true character of the building. From the outside, it appears to be a single family residence. There is only one address and one mailbox. Testimony indicates that, upon entry through the outer door, a visitor enters a lobby with three doors, the first is the door to the first floor apartment, the second leads to the basement stairway; ² the third doorway leads to the stairs to the upstairs apartment. None of the doors bears any name, number or other indication that it provides access to a separate dwelling unit.

In cases where the police were understandably misled into believing that a house was a single dwelling unit, the courts have recognized an exception to the rule that evidence must be suppressed if the search warrant did not adequately describe the premises to be searched. See the cases collected in § 8 of the annotation at 11 A.L.R.3d 1330, supra. The crucial inquiry in this type of case is whether the police made a good faith effort to accurately describe the premises. The cases collected in the ALR annotation reflect a variety of test formulations. The majority view appears to be the one reflected in the only Michigan case to have considered this question:

"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 was multi-unit in character, the warrant and resultant search and seizure have been held to be constitutionally permissible." People v. Franks, supra, at 735, 221 N.W.2d at 445. See also United States v. Esters, 336 F.Supp. 214 (E.D.Mich., 1972).

We believe that the "knew or should have known" test announced in Franks should be applied in all cases. We do not know if the trial judge had that test in mind when he stated that he could not rule on the defendant's motion without questioning the police informant in camera. Therefore, we must at least remand this case so that the trial judge may reconsider the need for the informant's testimony in light of People v. Franks, supra. For the guidance of the trial court, we add the following comments.

The present case is closely analogous to People v. Davis, 72 Mich.App. 21, 248 N.W.2d 690 (1976). As in Davis, the role of the informant in the present case was limited to establishing probable cause for the issuance of the search warrant. ³ Several cases have stated that an informant need be produced only when he is a material witness on the question of guilt or innocence. People v. Phelps, 57 Mich.App. 300, 225 N.W.2d 738 (1975); People v. Wenrich, 31 Mich.App. 644, 188 N.W.2d 102 (1971). Those cases would apparently never require production of an informant where his testimony is only important to determination of a collateral question like the validity of a search warrant. Although Davis sustained the claim of privilege against production, it did not establish a rule for all cases.

The rule in Phelps and Wenrich can apparently be traced to a statement by the U.S. Supreme Court in Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151 (1938):

"Moreover, as often pointed out, public policy forbids disclosure of an informer's identity unless essential to the defense * * *." (Emphasis supplied.)

Many subsequent cases have read the underscored word "defense" as referring only to the question of guilt or innocence. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), does indicate that a defendant bears a heavier burden when he seeks production of an informant solely for purposes of arguing a collateral question. Contrast Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). But McCray also expressly noted the possibility that production might be required by the U.S. Constitution in some cases, e. g., where the trial judge suspects that the police officers may be committing perjury.

While we recognize that it may be appropriate to require production of an...