People v. Poindexter

• Court: Court of Appeal of Michigan
• Writing for the Court: KAUFMAN; When plaintiff refused to produce the informant
• Citation: People v. Poindexter, 282 N.W.2d 411, 90 Mich.App. 599 (Mich. App. 1979)
• Decision Date: 06 June 1979
• Docket Number: Docket No. 77-3045
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Rudolph L. POINDEXTER, Defendant-Appellee. 90 Mich.App. 599, 282 N.W.2d 411

Page 411

282 N.W.2d 411

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Rudolph L. POINDEXTER, Defendant-Appellee.

Docket No. 77-3045.

90 Mich.App. 599, 282 N.W.2d 411

Court of Appeals of Michigan.

June 6, 1979.

Released for Publication Aug. 22, 1979.

[90 MICHAPP 601] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Chief Appellate Counsel, Asst. Pros. Atty., Maura D. Corrigan, Victor M. Norris, Asst. Pros. Attys., for plaintiff-appellant.

Benjamin Roth, Detroit, for defendant-appellee; Alvin C. Sallen, Southfield, of counsel.

Before ALLEN, P. J., and R. B. BURNS and KAUFMAN, JJ.

KAUFMAN, Judge.

Defendant was charged with unlawful possession of narcotics, to wit: heroin, M.C.L. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a), arraigned and bound over for trial. The case was dismissed without prejudice on June 1, 1977, when the plaintiff refused to produce a confidential informant for an In camera examination. Plaintiff appeals by right.

On March 24, 1976, Officer James Wood of the Detroit Police Department presented a sworn affidavit to Recorder's Court Judge John Patrick O'Brien in support of a warrnat to search defendant's house. The affidavit relied heavily on information received from an allegedly reliable informant. A warrant was issued on the basis of the affidavit. Pursuant to the warrant, police searched [90 MICHAPP 602] defendant's house and found guns, money, narcotics paraphernalia and heroin.

Prior to the date set for trial, defendant moved to suppress the evidence, claiming the search warrant was invalid on its face. Defendant's motion was denied. On May 6, 1977, defendant made an oral motion to require plaintiff to produce the informant relied upon by Officer Wood in his affidavit requesting a search warrant. Defendant claimed that no informant existed and that the informant was a figment of Officer Wood's imagination. Trial judge Samuel H. Olsen ordered the plaintiff to produce the informant at an In camera examination from which the defendant and defense counsel would be excluded. At one point he stated:

"THE COURT: They (defendant and defense counsel) claim perjury and these cases (primarily, People v. Stander, 73 Mich.App. 617, 251 N.W.2d 258 (1976)) clearly indicate where there's a contention of perjury, they are entitled to an in camera hearing. That's very clear from the case. I don't agree with the cases but I am constrained to follow the law and I think your office should perfect an immediate appeal to the Michigan Supreme Court." ¹

When plaintiff refused to produce the informant, [90 MICHAPP 603] Judge Olsen dismissed the case without prejudice. Plaintiff now appeals.

The questions here are: Can a defendant in a criminal proceeding, subsequent to the issuance of a search warrant, challenge the veracity of factual statements made in the affidavit supporting the warrant? If so, under what circumstances, if any, must an informant (on whose representations rests the underlying validity of the warrant) be produced when the defendant claims that no informant exists?

Historically, courts did not permit defendants to challenge the veracity of allegations in the search warrant affidavit by proof aliunde. During prohibition, the Michigan Supreme Court followed the rule that defendants could not challenge the truth of the facts alleged in the affidavit in support of the search warrant that did not go to the jurisdiction of the issuing magistrate. See discussion and cases cited in People v. Staffney, 70 Mich.App. 737, 739-740, 246 N.W.2d 364 (1976). In the last 10 years, however, the issue has received increased attention. See e. g., Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L.Rev. 825 (1971).

In People v. Broilo, 58 Mich.App. 547, 551-552, 228 N.W.2d 456 (1975), this Court relied on United States v. Morris, 477 F.2d 657 (CA 5, 1973), and ruled that a search warrant affidavit could be challenged where testimony inadvertently revealed that the affidavit contained inaccurate statements material to a finding of probable cause. But if there was enough substance remaining to support a finding of probable cause after striking the inaccurate statements, the warrant was still valid. Accord, People v. Price, 86 Mich.App. 641, 644-645, 273 N.W.2d 97 (1978); Staffney, supra, 70 Mich.App. 740[90 MICHAPP 604] -742, 246 N.W.2d 364, and see I George, Michigan Criminal Procedure, § 2.00(D).

Most recently, the United States Supreme Court addressed and resolved this issue in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In Franks, defendant was charged with rape and related crimes in Delaware. Prior to trial he sought to suppress various items of evidence obtained by the police pursuant to a search warrant. Defendant originally claimed that the warrant on its face did not show probable cause. But, at the hearing on the motion, defendant also attacked the veracity of the warrant affidavit and requested that he be permitted to call certain witnesses to establish the alleged untruthful matters. The motions were denied, the defendant was convicted, and the Supreme Court of Delaware affirmed, holding that a defendant under no circumstances could challenge, subsequent to the ex parte issuance of a search warrant, the veracity of a sworn statement used by police to procure the warrant.

The United States Supreme Court reversed and remanded, holding as follows, 438 U.S. at 171-172, 98 S.Ct. at 2685:

"In sum, and to repeat with some embellishment what we stated at the beginning of this opinion: There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses [90 MICHAPP 605] should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue." (Footnote omitted.)

In light of Franks, then, the defendant could have challenged Officer Wood's statement in the search warrant affidavit that an informant existed by following the procedure outlined by the United States Supreme Court. However, since defendant's attempt to impeach the affidavit was not accompanied by an offer of proof and defendant did not reasonably explain the absence of supporting reliable statements of witnesses, defendant's claim was a mere assertion. Accordingly, the defendant did not meet Franks' threshold requirement for an evidentiary hearing, and, at that point, he certainly was not entitled to production of the informant.

But the instant case was handled by the trial court before Franks and it is not surprising that the procedure outlined in Franks was not applied here. Even under Broilo, however, the trial court should have rejected defendant's attempt to impeach the affidavit. This was not a situation were testimony inadvertently revealed that the affidavit contained inaccurate statements material to a finding of probable cause. Consequently, the trial [90 MICHAPP 606] court's order directing the prosecutor to produce the informant was error even under Broilo.

We now come to the question of under what circumstances, if any, must an informant (on whose representations rests the underlying validity of the warrant) be produced when the defendant claims that no informant exists? This issue has not been addressed by Michigan Courts and the United States Supreme Court in Franks specifically avoided "the difficult question whether a reviewing court must ever require the revelation of the identity of an informant once a substantial preliminary showing of falsity has been made". 438 U.S. at 170, 98 S.Ct. at 2684.

The primary case relied on by the trial judge, People v. Stander, 73 Mich.App. 617, 251 N.W.2d 258 (1976), involved a claim by the defendant at trial that the informant who tipped off the police to defendant's alleged intent to steal a car should be produced. The trial judge denied the request and defendant appealed. He argued that the informant should have been produced because the informant was a res gestae witness and secondly, because the requirement of "fundamental fairness" as set forth in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), required production.

The Roviaro decision involved a government informer who played a key role in a heroin transfer scheme and who was instrumental in setting up the transaction. The Supreme Court there found that the informant was a "material witness" who might have been able to offer testimony favorable to the defendant in the areas of guilty knowledge or a possible entrapment defense. Defendant's "vital need for access to any material witness" outweighed the government interest in concealing the informant's identity and, under those particular[90 MICHAPP 607...