People v. Kort

• Decision Date: 15 October 1987
• Docket Number: Docket No. 93442
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David F. KORT, Defendant-Appellant. 162 Mich.App. 680, 413 N.W.2d 83
• Court: Court of Appeal of Michigan — District of US

Page 83

413 N.W.2d 83

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David F. KORT, Defendant-Appellant.

Docket No. 93442.

162 Mich.App. 680, 413 N.W.2d 83

Court of Appeals of Michigan.

Submitted Dec. 17, 1986.

Decided Sept. 8, 1987.

Released for Publication Oct. 15, 1987.

[162 MICHAPP 682] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Robert F. Davisson, Asst. Pros. Atty., for the People.

Talpos, Arnold & Rooyakker, P.C. by John C. Talpos, Troy, for defendant-appellant on appeal.

Before KELLY, P.J., and SULLIVAN and CARNOVALE, ^* JJ.

CARNOVALE, Judge.

Defendant sought leave to appeal from an order in which the circuit judge reversed the district judge's ruling quashing a search warrant and dismissing the charges against defendant. The circuit judge had reinstated the charges and remanded the case to the district [162 MICHAPP 683] court for defendant's preliminary examination. This Court denied defendant's interlocutory appeal. However, the Supreme Court ordered this Court to consider the case as on leave granted. 425 Mich. 872, 388 N.W.2d 681 (1986). On appeal, we consider the validity of the search warrant.

In August, 1978, police received a search warrant to search defendant's home at 3097 Massena, Commerce Township, Oakland County, for drugs. After finding drugs, police arrested defendant. He was charged with three counts of delivery of a controlled substance, M.C.L. Sec. 335.341; M.S.A. Sec. 18.1070(41), to wit, phencyclidine, cocaine, and phenobarbital.

Defendant has been challenging the validity of his arrest since 1978. His case has been up and down from the district court to the circuit court on three different occasions. It is necessary to briefly set forth this procedural history in order to frame the issues on appeal.

After his arrest, defendant brought a motion in the district court to quash the search warrant on the ground that the reliability of two persons referred to in the affidavit in support of the warrant, Jake and Bobby, was not established. The district court judge agreed and entered an order dated December 27, 1982, quashing the search warrant and dismissing the charges. On appeal, the circuit judge reversed. This Court and the Supreme Court denied defendant's applications for leave to appeal.

Next, defendant brought a motion in the district court to quash the search warrant on the ground that the affidavit contained six omissions of material facts. The district court agreed and granted the motion on December 17, 1984. The circuit judge reversed. Although this Court denied defendant's application for leave to appeal, the Supreme [162 MICHAPP 684] Court remanded the case to this Court for consideration as on leave granted. It is this order that brings the case before us.

Finally, while defendant's appeal to this Court and to the Supreme Court were pending, defendant brought a motion in the district court to quash the search warrant on the ground that the affidavit contained material and intentional or reckless misstatements of fact. The district court agreed and on October 22, 1985, entered an order granting defendant's motion. That issue is now on appeal to the circuit court. In order to expedite this case, we will consider all issues considered by the lower courts regarding the validity of the search warrant.

The affidavit consisted of five paragraphs, which are paraphrased as follows:

On August 2, 1978, SOI 926 [an informant who it was later learned was an undercover police officer] who has supplied the affiant with information in the past on at least 10 occasions, all of which have proved reliable and have resulted in successful prosecutions, informed the affiant that he was in a position to purchase phencyclidine (PCP) from subjects known to him as Jake and Bobby.

He stated that he had previously purchased PCP from Jake and Bobby and that he had arranged another purchase. He informed the affiant that he was to meet Jake and Bobby at 14832 Dolphin in the City of Detroit.

He met Jake and Bobby and later informed the affiant that Jake and Bobby stated that the price of PCP would be $800 and that they would have to go to Oakland County to obtain PCP from their source, who they referred to as Dave. They instructed SOI 926 to return to 14832 Dolphin Street [162 MICHAPP 685] later in the day. SOI 926 agreed. He was asked for and gave Bobby $800 for the purchase of the PCP.

After Jake and Bobby departed, SOI 926 immediately met with the affiant. The affiant and other members of the Metropolitan Narcotic Squad then followed the subjects directly to 3097 Massena, Commerce Township, Oakland County, Michigan. Jake was observed by the affiant to enter and later leave the location. Upon leaving, the subjects were observed to drive directly to 15121 Graydale, Detroit, Michigan, where they entered the premises and stayed for approximately five minutes. They then drove directly to 14832 Dolphin Street and met with SOI 926.

SOI 926 later informed the affiant that Bobby had given him approximately one ounce of PCP and had informed him that he and Jake had purchased the PCP from Dave in Oakland County and that Dave had just purchased ten pounds of PCP. He said that Dave had approximately seven pounds left at his house. Bobby further stated that he, Jake, and Dave could supply SOI 926 with all the PCP he needed.

SOI 926 then left 14832 Dolphin, immediately met with the affiant, informed him of the above facts, and turned over the purchased PCP. The substance tested positive for PCP.

First, we address the issue that brought the case before us: whether the affidavit contained material omissions such that the search warrant should be quashed and the evidence seized suppressed. The district court ruled that the affidavit contained a number of material omissions. The circuit court reversed, finding that defendant's allegations were not accompanied by sufficient proof that the affiant's omissions were intentionally made with reckless disregard for the truth.

The test for determining whether false statements[162 MICHAPP 686] made in an affidavit in support of an application for a search warrant require suppression of the evidence obtained was stated in Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). In Franks, the Supreme Court remanded with directions for the trial court to hear and decide the defendant's challenge to the veracity of the information in the search warrant in accordance with the following test: Where a defendant can show by a preponderance of the evidence that the affiant had knowingly and intentionally or with reckless disregard for the truth inserted false material into the affidavit and that the false material is necessary to a finding of probable cause, the search warrant must be quashed and the fruits of the search excluded at trial. 438 U.S. 170-171, 98 S.Ct. 2683-84. See People v. Mackey, 121 Mich.App. 748, 329 N.W.2d 476 (1982); People v. Williams, 134 Mich.App. 639, 351 N.W.2d 878 (1984).

In the instant case, we find that the district court erred in quashing the search warrant without having first conducted a hearing to decide whether the affiant's omissions were intentional and whether the omissions were necessary to a finding of probable cause. Despite the error, we decline to remand because we believe that probable cause existed even considering the affiant's omissions.

The primary fact relied on by the district court in quashing the search warrant was the affiant's omission that Jake dropped Bobby off at a restaurant before proceeding alone to defendant's home and that Jake then returned to the restaurant and picked up Bobby before stopping briefly at a home on Graydale Street and returning to Dolphin Street to meet SOI 926. The district court felt that it was just as likely that Bobby purchased the PCP [162 MICHAPP 687] at the restaurant or at Graydale Street as it was that Jake purchased the PCP from defendant.

We disagree. According to the affidavit, when Jake and Bobby returned to Dolphin Street and met with SOI 926, Bobby informed SOI 926 that he and Jake had purchased the PCP from Dave in Oakland County. Our review of the lower court record suggests that the restaurant where Bobby was dropped off was in Wayne County, not Oakland County. Similarly, the home on Graydale Street in Detroit was also in Wayne County, not Oakland County. Because Jake and Bobby's only stop in Oakland County was at defendant's home, the affiant's omissions regarding Jake and Bobby's stops in Wayne County were not necessary to the magistrate's finding of probable cause to issue the search warrant.

Our finding that the affiant's omission that Bobby was dropped off at the restaurant did not affect the magistrate's finding of probable cause is based on the suggestion in the record that the restaurant was in Wayne County, not Oakland County. If defendant now wishes to contest this point, he should file a motion for an evidentiary hearing with the circuit court. If it is established that the restaurant was in Oakland County, the circuit court should conduct a hearing to decide whether the affiant's omissions were intentional and whether the omitted fact was necessary to a finding of probable cause. Franks v. Delaware, supra. The testimony of the officers who observed Bobby at the restaurant should be considered if an evidentiary hearing is necessary.

The district court also found that two other material omissions had occurred. It found that the affiant had omitted whether Jake and Bobby had PCP on them when they initially left SOI 926 and drove to defendant's home. While it is possible [162 MICHAPP 688] that Jake and Bobby had the PCP with them all the time and that the drive to defendant's home was an elaborate ruse to frame defendant, the facts suggest otherwise. There is no evidence that Jake and Bobby knew SOI 926 was a police...