People v. Mackey

• Decision Date: 16 February 1983
• Docket Number: Docket No. 58479
• Citation: 329 N.W.2d 476,121 Mich.App. 748
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Erwin MACKEY, Defendant-Appellant. 121 Mich.App. 748, 329 N.W.2d 476
• Court: Court of Appeal of Michigan — District of US

Page 476

329 N.W.2d 476

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

Docket No. 58479.

121 Mich.App. 748, 329 N.W.2d 476

Court of Appeals of Michigan.

Submitted June 8, 1982.

Decided Dec. 6, 1982.

Rehearing Denied Jan. 31, 1983.

Released for Publication Feb. 16, 1983.

[121 MICHAPP 750] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Brent Danielson, Pros. Atty., and Leonard J. Malinowski, Asst. Atty. Gen., for the People.

Terrence J. Raven, Kalamazoo, for defendant-appellant.

Before WALSH, P.J., and ALLEN and GILLESPIE, ^* JJ.

GILLESPIE, Judge.

On April 10, 1981, a jury found the defendant guilty of the unlawful manufacture, delivery or possession of a controlled substance, [121 MICHAPP 751] marijuana, with intent to deliver. M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401). He was sentenced on May 7, 1981, to a term of 18 months to 4 years imprisonment.

The defendant's problems arose from the fact that two dump truck loads of marijuana, weighing approximately 8,000 pounds, were discovered on his property.

On September 7, 1980, at approximately 10:00 p.m., Deputy Haik of the Manistee County Sheriff's Department received a telephone call from an informant by the name of Gary Argue, who told him that he knew the location of a cornfield in which marijuana was growing and was in the process of being harvested. Haik and his partner, Deputy Tighe, met with the informant about ten minutes later, at which time the informant showed the deputies some plant material believed to be marijuana. Argue claimed to have picked the marijuana from a cornfield located on defendant's farm.

Deputy Haik contacted the Manistee County Sheriff's Department by telephone and spoke with Detective Sergeant Cloutier. Haik related the information given him by Argue asked Cloutier to obtain a search warrant for defendant's premises "as a matter of convenience".

Cloutier signed an affidavit as the affiant, stating that he personally talked to the informant. However, Cloutier testified at the suppression hearing that all of his knowledge regarding the marijuana located in defendant's field came from Deputy Haik and that, contrary to the affidavit, he was never told anything by the informant prior to obtaining the warrant.

The search warrant obtained by Cloutier contains the following description of the property to [121 MICHAPP 752] be searched: "Section 1 in Bear Township off County Road 600 * * * said property being leased or rented by Robert Mackey." The property to be seized was described as "marijuana * * * growing plants * * * bundled cut marijuana".

Although the informant had told Haik that marijuana was being harvested, Haik did not believe that it was imperative for him to determine whether the marijuana was being transported away from the area, because he felt that "the warrant was coming quick enough that we could, in fact, get in before everything was gone. The informant told us that there was a great deal of this stuff in the field that was being harvested."

The raid began around midnight. Once on the scene, Haik went directly to the rear of the cornfield where the officers found marijuana.

Deputy Dale Kowalkowski of the Manistee County Sheriff's Department had arrived on the scene with Detective Cloutier and others. Kowalkowski was unable to serve the search warrant upon defendant because no one would answer the door. At some point, Kowalkowski and others began searching the premises, including the outbuildings. Kowalkowski testified that he could see through the windows and the open doors on the bottom floor of a shed but saw nothing that appeared to be marijuana.

However, according to Kowalkowski, he observed a new stairway leading up to a closed door at the second level of the shed. There was a hasp on the door with a padlock through it. Shining a flashlight through a crack in the door, Kowalkowski observed a green leafy substance inside the shed. He and Haik later went up the stairs and with their flashlights shined through the crack in the door and observed a large quantity of cut and [121 MICHAPP 753] bundled marijuana. Haik broke the lock off with a tire iron and they entered the shed. On cross-examination, Kowalkowski stated that, prior to looking through the closed door, he did not have any reason to search the second floor of the shed.

Defendant was arrested in the early morning hours of September 8, 1980.

At a hearing conducted on April 6, 1981, defendant moved to suppress the marijuana alleging that (1) the search warrant for the cornfield was invalid because it was supported by an affidavit containing false information and (2) the search of the shed was illegal because it was conducted without a search warrant.

The trial court denied defendant's motion, finding that the defect in the affidavit was a mere technicality and that the search of the shed was justified by exigent circumstances. A trial court's ruling on a motion to suppress evidence will not be reversed unless it is clearly erroneous. People v. Grimmett, 97 Mich.App. 212, 214, 293 N.W.2d 768 (1980), lv. den. 411 Mich. 853 (1981).

The first issue raised on appeal by defendant is a narrow one. In obtaining the search warrant, the affiant police officer relied upon information obtained by another officer from an informant. Defendant does not challenge the informant's knowledge or credibility nor does he allege an inconsistency between the informant's statements and what was recited in the affidavit. Defendant's sole challenge is to the veracity of the affiant's first person statements since the affiant had, in fact, received his information from the informant through a third person, Deputy Haik.

It is not disputed that information received from a fellow officer may properly be used as a basis for a warrant affidavit. United States v. McCormick, [121 MICHAPP 754] 309 F.2d 367 372 (CA 7, 1962), cert. den. 372 U.S. 911, 83 S.Ct. 724, 9 L.Ed.2d 719 (1963). When one police officer receives information from a fellow officer, the law assumes the source is credible. Where the information is then presented to a magistrate in an application for a search warrant, the magistrate, too, may consider the source to be credible. People v. Fuller, 106 Mich.App. 263, 266, 307 N.W.2d 467 (1981).

This rule, however, does not relieve the affiant of his obligation to inform the magistrate of the fact that he received the information from a fellow officer and of his reason or reasons for finding the information reliable. The question here is whether the trial court's finding that Detective Cloutier's failure to so inform the magistrate was immaterial constitutes an error mandating reversal.

The test for determining whether false statements made in a warrant affidavit require suppression of the evidence obtained by means of the warrant was enunciated by the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676, 57 L.Ed. 667 (1978). In Franks, two detectives executed an affidavit for a search warrant in which they reported receiving information from two informants. Defendant alleged that the detectives had, in fact, received the information from another police officer and that the information was not accurately recited in the affidavit. The trial court in Franks denied defendant a hearing on the merits of his challenge to the veracity of the information contained in the affidavit.

The Supreme Court remanded with directions for the trial court to hear and decide defendant's challenge to the veracity of the information in accordance with the following test: where a defendant[121 MICHAPP 755] can show by a preponderance of the evidence that the affiant has 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. at 170-171, 98 S.Ct. at 2683-84. See also People v. Price (On Remand), 91 Mich.App. 328, 330-331, 283 N.W.2d 736 (1979); People v. Beets, 105 Mich.App. 350, 354, 306 N.W.2d 508, lv. den. 411 Mich. 996 (1981); People v. Ward, 107 Mich.App. 38, 50-53, 308 N.W.2d 664 (1981).

Our review of the record in the present case discloses that the trial court failed to apply the Franks test in determining whether Officer Cloutier knowingly and intentionally or with reckless disregard made false statements regarding the source of his information and, if so, whether those statements were necessary to a finding of probable cause. However, we decline to remand since we believe that the search of the cornfield was permissible even without a warrant.

The Fourth Amendment to the United States Constitution does not protect against searches without a warrant of open fields. This rule was first articulated by Mr. Justice Holmes in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), and has never been overruled.

In a recent case, the United States Court of Appeals for the Ninth Circuit reiterated the efficacy of the "open fields" exception in a case in which police officers discovered marijuana while conducting a search without a warrant of a van apparently abandoned in an open field. United States v. Basile, 569 F.2d 1053, 1056 (CA 9, 1978), cert. den. 436 U.S. 926, 98 S.Ct. 2268, 56 L.Ed.2d 761 (1978).

[121 MICHAPP 756] For other opinions citing the open fields exception to the Fourth Amendment, see Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 865, 94 S.Ct. 2114, 2115, 40 L.Ed.2d 607 (1974); United States v. Hassell, 336 F.2d 684, 685 (CA 6, 1964), cert. den. 380 U.S. 965, 85 S.Ct. 1111, 14 L.Ed.2d 155 (1965), and footnote eight of Justice Stewart's majority opinion and Justice Harlan's concurrence in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

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