People v. Kolniak, Docket No. 100411

• Decision Date: 10 April 1989
• Docket Number: Docket No. 100411
• Citation: 437 N.W.2d 280,175 Mich.App. 16
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gerald Lee KOLNIAK and Louann Leslie Magill, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 280

437 N.W.2d 280

175 Mich.App. 16

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gerald Lee KOLNIAK and Louann Leslie Magill, Defendants-Appellees.

Docket No. 100411.

Court of Appeals of Michigan.

Submitted Nov. 7, 1988.

Decided Feb. 21, 1989.

Released for Publication April 10, 1989.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., John L. Thompson, Deputy Chief, Special Operations, and A. George Best, II, Asst. Pros. Atty., for the people.

John T. McCloskey, Southfield, for defendants-appellees on appeal.

Before CYNAR, P.J., and HOOD and MURPHY, JJ.

HOOD, Judge.

The people appeal as of right from an order of the Detroit Recorder's Court suppressing evidence and dismissing the case against defendants, who had been charged with possession with intent to deliver marijuana, M.C.L. Sec. 333.7401(2)(c); MSA 14.15(7401)(2)(c). We reverse and remand for further proceedings.

This appeal began with defendants' motion to quash the information. The defendants argued that part of the evidence presented at the preliminary examination was seized pursuant to a defective warrant which failed to establish probable cause and which was overly broad with respect to the items to be seized and the areas to be searched. The search warrant authorized the search of defendants' residence and other related buildings, an automobile and three named individuals for controlled substances and other related materials, specifically including marijuana. According to the transcript of the preliminary examination, the material seized included fifty-seven pounds of marijuana, plastic bags, a scale, and a notebook containing names and dollar and pound figures.

Following an evidentiary hearing, the trial court found the warrant overly broad and suppressed all the evidence. The record indicates that the trial court believed there was a probable-cause showing in the warrant to support the search for the marijuana. However, it found that there was not probable cause to support the portions of the warrant dealing with the search for other narcotics. While the court also mentions the overly broad description of the areas to be searched, it is not clear from the record before us what role this played in the court's decision.

The prosecution agrees with the trial court that the portions of the warrant authorizing the search for controlled substances other than marijuana were invalid. The prosecution also concedes overbreadth in the description of the places to be searched. It argues, however, that rather than suppressing the evidence the court should have severed the valid portions of the warrant concerning marijuana and admitted any evidence seized under those portions. Defendants argue that a constitutionally invalid general warrant is at issue and that therefore no valid seizure of any evidence could result.

It is not clear that the option of severance was ever presented to the trial court. As a general rule, this Court will not review an issue raised for the first time on appeal. People v. Lumsden, 168 Mich.App. 286, 292-293, 423 N.W.2d 645 (1988). However, since the issue of severance of invalid portions of a warrant has not been addressed in Michigan, we consider this issue for the guidance it may provide in this case and in future cases.

That invalidity of a portion of a warrant does not require suppression of all evidence seized is a concept that has been recognized in a number of state and federal courts. See Anno: Propriety in state prosecution of severance of partially invalid search warrant and limitation of suppression to items seized under invalid portions of warrant, 32 ALR4th 378; Anno: Propriety in federal prosecution of severance of partially invalid search warrant and limitation of suppression to items seized under invalid portions of warrant, 69 ALR Fed. 522. Instructive on severance or redaction of the valid portions of a warrant is the reasoning set forth in United States v. Christine, 687 F.2d 749 (CA 3, 1982). In reaching its decision that redaction was a valid practice, the Christine court reviewed the purposes of the warrant requirements. It began with the Fourth Amendment requirement, U.S. Const. Am. IV, that there be a showing of probable cause and specificity in descriptions in a warrant. The rules that have developed under the Fourth Amendment regarding warrants seek to prevent general searches which would give the authorities unbridled discretion to rummage through a citizen's belongings. Id., p. 753. The requirements attempt to strike a balance between the government's need to enforce its laws and the citizen's interest in being free from intrusive searches. Id.

The individual's remedy when an illegal search and seizure occurs is the suppression of the evidence under the exclusionary rule. In applying the exclusionary rule, the court takes a pragmatic approach, balancing the individual's privacy interest against the public's interest in admitting the evidence validly seized. Id., p. 757. The rule more commonly has been applied where an officer, acting under a valid warrant, overreaches the warrant and seizes unauthorized items. The courts in those instances suppress only the evidence illegally seized, recognizing that

"[t]he heavy cost to society of excluding evidence which was legally seized and could have been admitted had the warrant been scrupulously honored far outweighs the objective of deterring future seizures exceeding a warrant's authority by suppressing all the evidence seized." Id., p. 757.

All evidence seized pursuant to a general warrant must be suppressed, as must all evidence seized under a warrant unsupported by probable cause. Id., p. 758. However, where the problem is the partial invalidity of the warrant, redaction and preservation of the valid portions is a practice analogous to the court's treatment of evidence seized when the officer overreaches the warrant. The cost to society of suppressing all the evidence seized does not justify complete suppression. Id.

The Christine court found that severing the valid portions to allow the use of evidence seized thereunder was consistent with the underlying goals of the warrant requirements:

"First, with respect to the search and seizure conducted pursuant to the valid portion of the redacted warrant, the intrusion into personal privacy has been justified by probable cause to believe that the search and seizure will serve society's need for law enforcement. Second, because it is a duly issued warrant that is being redacted, the objective of interposing a magistrate between the law enforcement officials and the citizen has been attained. Third, even though it may not be coterminous with the underlying probable cause showing, the scope of a search pursuant to a particularized, overbroad warrant is nevertheless limited by the terms of its authorization. In the case of a warrant containing some invalid general clauses, redaction neither exacerbates nor ratifies the unwarranted intrusions conducted pursuant to the general clauses, but merely preserves the evidence seized pursuant to those clauses particularly describing items to be seized. Fourth, as to the valid portions of the warrant salvaged by redaction, the individual whose property is to be searched has received notification of the lawful authority of the executing officer, his need to search, and the limits of his power to search. Fifth, redaction does not affect the generation of a record susceptible to subsequent judicial review." Id.

We note that while the majority of the cases accepting redaction appear to have addressed the situation in Christine where defendant challenged the lack of specificity as to the description of some of the items...