People v. Osborn

• Decision Date: 16 February 1983
• Docket Number: Docket No. 60216
• Citation: 122 Mich.App. 63,329 N.W.2d 533
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Nelson OSBORN, Defendant-Appellant. 122 Mich.App. 63, 329 N.W.2d 533
• Court: Court of Appeal of Michigan — District of US

Page 533

329 N.W.2d 533

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Nelson OSBORN, Defendant-Appellant.

Docket No. 60216.

122 Mich.App. 63, 329 N.W.2d 533

Court of Appeals of Michigan.

Submitted June 30, 1982.

Decided Dec. 8, 1982.

Released for Publication Feb. 16, 1983.

[122 MICHAPP 65] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Fred R. Hunter, III, Pros. Atty., and Michael A. Nickerson, Asst. Atty. Gen., for the People.

Wickett, Laudenslager & Baugh, P.C. by Mary E. Delehanty, Kalamazoo, for defendant-appellant.

Before KELLY, P.J., and MAHER and TAHVONEN, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury on July 23, 1981, of first-degree criminal sexual conduct under M.C.L. Sec. 750.520b(1)(a); M.S.A. Sec. 28.788(2)(1)(a) and sentenced to 5 to 20 years imprisonment. He appeals as of right.

Testimony showed that the defendant was divorced from his former wife. During their marriage defendant had lived with his wife and her daughter. The child testified that she had known the defendant all her life and was told that he was her father. When the child was six years old the defendant and his wife divorced; nevertheless, the child continued to see defendant until her twelth year, thinking he was her natural father.

Sometime between the 9th and 15th of January, 1981, the defendant and the young girl had sexual contact in the pole barn behind defendant's house. Such activity had been going on for at least a year and a half. Defendant had also begun photographing[122 MICHAPP 66] his exploits with the child in December, 1980 and retained the pictures. Eventually the child contacted a social worker at Protective Services about these incidents after watching a television program. The social worker later contacted a trooper at the Michigan State Police who swore out an affidavit to obtain a warrant to search defendant's residence for photographs of the child. The trooper secured the warrant and recovered the pictures from defendant's pole barn.

Defendant challenges the validity of the search warrant. He argues the warrant was invalid because the information contained in the trooper's affidavit was 45 days old and was stale. The affidavit, dated February 27, 1981, does reveal that the photographs were last seen on the previous January 11th. We cannot agree, however, that this information was stale. A search warrant must be supported on probable cause existing at the time the warrant is issued. People v. Chippewa Circuit Judge, 226 Mich. 326, 197 N.W. 539 (1924), People v. Gillam, 93 Mich.App. 548, 286 N.W.2d 890 (1979). Nevertheless, a lapse of time between the occurrence of the underlying facts and the issuance of the warrant does not automatically render the warrant stale. People v. Gillam, supra, p. 552, 286 N.W.2d 890. As a panel of this Court said in People v. Gillam, supra, p. 553, 286 N.W.2d 890: "the measure of a search warrant's staleness rests not on whether there is recent information to confirm that a crime is being committed, but whether probable cause is sufficiently fresh to presume that the sought items remain on the premises". Such probable cause is more likely to be "sufficiently fresh" when a history of criminal activity is involved. People v. Gillam, supra, p. 552, 286 N.W.2d 890.

In this case, defendant had been sexually exploiting his young victim for at least a year and a [122 MICHAPP 67] half before the issuance of the warrant. Indeed, the affidavit indicated that, according to the child, she had had regular sexual contact with the defendant since the age of three. The photographs were clearly not an isolated aberration but simply a variation in a long history of sexual abuse. The magistrate thus had enough information to conclude that defendant would not quickly dispose of the pictures but would retain them for his own future perverse enjoyment. The affidavit's allegations of a long history of sexual abuse between the child and defendant and the victim's personal knowledge of the existence and location of the photographs in January constituted probable cause sufficiently fresh to presume that the photographs were in defendant's residence when the warrant was issued. We must reject defendant's contention.

Defendant next contends that the search warrant was not supported by probable cause because the affidavit contained double hearsay. The affidavit provided:

"The following facts having been sworn to by affiant in support of the issuance of this Warrant: Your affiant is a Michigan State Trooper attached to the Wayland Post. On February 27, 1981 he was contacted by Diane Parrott, Protective Services worker with the Allegan County Department of Social Services, and informed that she was investigating a case where it was alleged that sexual contact had occurred between a twelve year old girl and her natural father.

"Your affiant was informed by Ms. Parrott that she had interviewed the Complainant on this date, the complainant indicated that she had had regular sexual contact with her natural father since the age of three.

"During the week of January 11, 1981 the complainant indicated that she was present at the home of her natural father. At that time she was taken into the outbuilding described above, there sexual contact took [122 MICHAPP 68] place and the complainant indicated that she was photographed in the nude by her father.

"Her father, William Nelson Osborne is the occupant of the above described modular home and the above described outbuilding. The complainant indicated that the photographs were taken by her father and that after the photographs were taken they remained in the possession of her father.

"It is the belief of your affiant that the complainant is a mature, now thirteen year old girl, and appears to be reliable.

"It is further the belief of your affiant that the pictures were last seen in the possession of William Nelson Osborne and that it is likely that they are contained somewhere in the above described places."

The information here passed through two links. First, from the child complainant to the Protective Services worker and, second, from the social worker to the affiant. A magistrate may rely properly on hearsay. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Moreover, reliance on double hearsay does not itself invalidate the warrant. People v. Chartrand, 73 Mich.App. 645, 252 N.W.2d 569 (1977). But as this Court said in People v. Brooks, 101 Mich.App. 416, 419, 300 N.W.2d 582 (1980):

"[W]hen hearsay is used, however, the judicial officer being asked to issue the warrant must be supplied with (1) some of the underlying circumstances supporting the conclusion that the object of the search is where it is said to be and (2) some of the underlying circumstances supporting the conclusion that the person supplying the information is reliable. Aguilar v. Texas, 378 US 108; 84 SCt 1509; 12 L.Ed.2d 723 (1964), Spinelli v. United States, 393 US 410; 89 SCt 584; 21 LEd2d 637 (1960), People v. Walker, 401 Mich 572; 259 NW2d 1 (1977)."

The affidavit satisfies the first prong of the Brooks [122 MICHAPP 69] test for the same reasons that the information in the affidavit is not stale. The long history of sexual contact between the defendant and the child and the child's personal knowledge of the existence and location of the photographs support the conclusion that the pictures were in defendant's possession when the warrant was issued.

The affidavit fulfills the second prong as well. Because the affidavit referred to two informants both must meet the reliability test. The affidavit supplies enough circumstances supporting the reliability of the child. It stated her long relationship with defendant. This relationship indicates that she was in an excellent position to know the truth of what she said. Cf. People v. Emmert, 76 Mich.App. 26, 31, 255 N.W.2d 757 (1977); People v. Chartrand, supra. Moreover, the child stated the approximate date and location of the photographing. She also described the events leading up to the photographing. Such specificity...