People v. Melotik

Decision Date21 January 1997
Docket NumberDocket No. 174353
Citation221 Mich.App. 190,561 N.W.2d 453
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Eric John MELOTIK, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and John S. Pallas, Assistant Prosecuting Attorney, for People.

Stuart L. Young, Bingham Farms, for defendant-appellee.

Before SMOLENSKI, P.J., and HOLBROOK and F.D. BROUILLETTE *, JJ.

SMOLENSKI, Presiding Judge.

The prosecutor appeals by leave granted from the circuit court's denial of his delayed application for leave to appeal the district court's order dismissing the charges 1 filed in this case against defendant. We reverse and remand.

This case arises out of a series of shooting incidents, including school bus shootings, that occurred in the area of the residence of defendant's parent. Defendant lived at this residence when not attending college. The police conducted an investigation and traced the likely origin of the shots to this residence. On April 23, 1993, Lieutenant Dale Mallett of the Milford Police Department swore out a fourteen-page affidavit detailing facts in paragraphs A through HH concerning: (1) the shooting incidents, which the police believed to have been perpetrated with either a pellet gun or a .22 caliber weapon on the basis of the type of damage caused by the shootings and the recovery of .22 caliber slugs; (2) the police contacts with defendant, who indicated that he owned a pellet air rifle, and defendant's father, who indicated that he owned a .22 caliber rifle; (3) a statement by a named citizen who informed the police that defendant had previously stated that he had shot at school buses before; and (4) observations of defendant's activities by the police. That same day, a magistrate issued a warrant authorizing the police to search defendant's residence for .22 caliber firearms and .22 caliber ammunition. The validity of this affidavit and warrant is not challenged on appeal.

The police did not execute the April 23 warrant and conduct a search of defendant's residence, but, instead, resolved to continue their investigation and surveillance of defendant and his residence. On April 25, 1993, the police observed defendant attempting to break into a shed located near defendant's residence. The police immediately arrested defendant for attempted breaking and entering. Lieutenant Mallett thereafter questioned defendant, who admitted not only being the shooter in the shooting incidents, but also committing several other breakings and enterings. Lieutenant Mallett then swore out a second affidavit that was identical to the first affidavit in paragraphs A through FF, and added paragraphs GG through OO detailing the facts of defendant's statement. The magistrate issued a second search warrant for defendant's residence on April 25, 1993, that was identical to the first warrant except that it additionally authorized the police to search for the specific .22 caliber gun defendant had admitted using in the shootings, as well as items defendant had admitting taking during the breakings and enterings. The police conducted a search of defendant's residence. The record does not indicate the nature of the items seized from defendant's residence. However, defendant was thereafter charged in this case with one of the shooting incidents. In separate proceedings, defendant was also charged with other offenses arising out of the other shooting incidents and the breakings and enterings.

Although the record is not entirely clear in this regard, defendant was apparently bound over to the circuit court in this case as well as the other related cases. A hearing was subsequently held either in this case or one of the other related cases, following which the circuit court ruled that defendant's statement would not be admissible at trial. Defendant thereafter moved to dismiss this case, as well as several of the other related cases, on the ground that his inadmissible statement was the only evidence that had been presented at his preliminary examination to establish probable cause that he committed the offenses. The circuit court granted defendant's motion to dismiss.

The charges in this case were subsequently reinstated. A preliminary hearing was held, at which evidence was presented that a shooting incident involving a weapon using .22 caliber ammunition had occurred in the area of defendant's residence. When the prosecutor moved for admission of the two warrants, defense counsel objected, arguing that the April 25 warrant was based upon defendant's inadmissible statement, and that, therefore, the warrant should be suppressed as well as anything flowing from the warrant under the fruit of the poisonous tree doctrine enunciated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The prosecutor agreed that defendant's statement had been ruled inadmissible, but argued in reliance on People v. Kolniak, 175 Mich.App. 16, 437 N.W.2d 280 (1989), that the district court could strike the portion of the second affidavit containing defendant's inadmissible statement and look at the remaining portions of the affidavit to determine whether probable cause existed to support the second warrant.

The district court declared that it was unable to determine whether the evidence seized was obtained because of defendant's inadmissible statement or because of the other statements contained in the affidavit. The district court ruled that the April 25 warrant was invalid on its face because of defendant's inadmissible statement and ordered that any evidence seized as a result of that warrant be suppressed. When the prosecutor argued that the first warrant had also been executed 2 during the search of defendant's residence and was still admissible, the district court questioned how it could be determined what evidence was seized pursuant to the April 23 warrant and what evidence was seized pursuant to the April 25 warrant. The district court stated that common sense would indicate that "if you get a second search warrant and you execute on it, then you didn't execute on the first one because you would have done it to begin with. You exe--you went and got the second one and executed it because now you thought that was your search warrant." The district court concluded that it was suppressing any evidence obtained "on the search warrants." When the prosecutor indicated that he did not have any more evidence to present, defense counsel moved to dismiss the case on the ground that there was no probable cause to bind defendant over for trial. The district court dismissed the case against defendant. The circuit court subsequently denied the prosecutor's delayed application for leave to appeal.

The prosecutor first argues that the circuit court abused its discretion in denying his delayed application for leave to appeal because it placed undue weight on the reasons for the delay in filing the application. The prosecutor contends that the court's comments indicate that it would only accept nonculpable reasons for the delay, whereas the law no longer requires that the explanation of the delay show nonculpable negligence. See, e.g., People v. Flowers, 191 Mich.App. 169, 172, 477 N.W.2d 473 (1991). We disagree. While the record indicates that the circuit court was not satisfied with the reasons given for the delay and verbalized its disappointment, the court did not deny the prosecutor's delayed application on the basis of the delay and did not require nonculpable negligence. The court clearly stated that the reason for its denial was based on the lack of merit to the prosecutor's claim. Accordingly, we find no abuse of discretion. Id.

Next, the prosecutor argues that the district court erred as a matter of law in dismissing the charges against defendant. Specifically, the prosecutor contends that the district court erred in finding that the search warrants were invalid and that the evidence obtained through the execution of the warrants must be suppressed. The prosecutor contends that the district court should have followed the procedure outlined in Kolniak and redacted the references to defendant's statement in the second affidavit supporting the second warrant and determined whether the remaining facts were sufficient to establish probable cause to search defendant's residence.

We must first define the scope of our review of this issue. Generally, a defendant must be bound over for trial if evidence is presented at the preliminary examination that a crime has been committed and there is probable cause to believe that the defendant was the perpetrator. People v. Tower, 215 Mich.App. 318, 320, 544 N.W.2d 752 (1996). Our interpretation of the record is that the district court dismissed the charges against defendant on the ground that there was insufficient evidence presented to establish probable cause to believe that defendant was the perpetrator of the crimes charged in this case. Generally, this Court reviews such a determination by a district court for an abuse of discretion. People v. Neal, 201 Mich.App. 650, 654, 506 N.W.2d 618 (1993). However, the district court's implicit finding of insufficient evidence was based on its ruling that evidence of the search warrant, the affidavit containing references to defendant's inadmissible statement, and any fruits flowing from the execution of the warrant must be suppressed. This ruling, in turn, was based on the district court's refusal to consider whether the facts stated in the affidavit supporting the second warrant apart from those resulting from defendant's statement established probable cause to search defendant's residence. We thus limit our review to this action by the district court.

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  • People v. Weiss
    • United States
    • California Court of Appeals Court of Appeals
    • 10 Septiembre 1998
    ...v. Hills (La.App.1993) 626 So.2d 452, 454-455; Klingenstein v. State (1993) 330 Md. 402, 624 A.2d 532, 538; People v. Melotik (1997) 221 Mich.App. 190, 561 N.W.2d 453, 458; State v. Lieberg (Minn.App.1996) 553 N.W.2d 51, 55; State v. McLean (1995) 120 N.C.App. 838, 463 S.E.2d 826, 828-829; ......
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    ...State v. Seager, 571 N.W.2d 204, 212 n. 5 (Iowa 1997); State v. Hills, 626 So.2d 452, 454-55 (La.Ct.App.1993); People v. Melotik, 221 Mich.App. 190, 561 N.W.2d 453, 458-59 (1997); State v. Lieberg, 553 N.W.2d 51, 55 (Minn.Ct.App.1996); State v. Beeken, 7 Neb.App. 438, 585 N.W.2d 865, 873-74......
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    ...204, 212, footnote 5; State v. Hills (La.Ct.App.1993) 626 So.2d 452, 454-455; Klingenstein v. State (1993) 330 Md. 402 ; People v. Melotik (1997) 221 Mich.App. 190 ; State v. Lieberg (Minn.Ct.App.1996) 553 N.W.2d 51, 55; State v. McLean (1995) 120 N.C.App. 838 ; People v. Cassadei (1991) 16......
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