People v. Rodriguez, Docket No. 22686--90

• Decision Date: 24 November 1975
• Docket Number: Docket No. 22686--90
• Citation: 238 N.W.2d 385,65 Mich.App. 723
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ramiro RODRIGUEZ et al., Defendants-Appellants. 65 Mich.App. 723, 238 N.W.2d 385
• Court: Court of Appeal of Michigan — District of US

Page 385

238 N.W.2d 385

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ramiro RODRIGUEZ et al., Defendants-Appellants.

Docket No. 22686--90.

65 Mich.App. 723, 238 N.W.2d 385

Court of Appeals of Michigan.

Nov. 24, 1975.

Released for Publication Feb. 17, 1976.

Leave to Appeal Denied April 21, 1976.

[65 MICHAPP 725] Farhat, Burns & Story by E. Michael Stafford, Lansing, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jon W. Newman, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and R. B. BURNS and D. E. HOLBROOK, Jr., JJ.

QUINN, Presiding Judge.

All defendants were charged with violating M.C.L.A. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c), in that they did unlawfully manufacture marihuana (count I), that they unlawfully possessed with intent to manufacture marihuana (count II), and that they unlawfully possessed with intent to deliver marihuana (count III). In addition, defendant Rodriguez was charged with unlawfully keeping or maintaining a dwelling used for keeping or storing marihuana contrary to M.C.L.A. § 335.342(1)(e); M.S.A. § 18.1070(42)(1)(e). The [65 MICHAPP 726] jury returned verdicts of guilty on all counts. Defendants were sentenced, their motion for new trial was denied and they appeal. The issues raised on appeal will be discussed in the same order as briefed by defendants.

Prior to trial, defendants moved to quash the search warrant and suppress certain evidence. The motion was based on the alleged inadequacy of the affidavits on which the search warrant was based. Defendants' first four issues relate to the inadequacy of the affidavits.

M.C.L.A. § 780.651; M.S.A. § 28.1259(1) provides:

'When an affidavit is made on oath to a magistrate authorized to issue warrants in criminal cases and when the affidavit establishes the grounds for issuing a warrant pursuant to this act, the magistrate, if he is satisfied that there is reasonable or probable cause therefor, shall issue a warrant to search the house, building or other location or place where the property or thing which is to be searched for and seized is situated.'

M.C.L.A. § 780.653; M.S.A. § 28.1259(3) provides:

'The magistrate's finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him. The affidavit may be based upon reliable information supplied to the complainant from a credible person, named or unnamed, so long as the affidavit contains affirmative allegations that the person spoke with personal knowledge of the matters contained therein.'

Two affidavits were presented to the magistrate who issued the search warrant. These affidavits were a mixture of the personal knowledge of the affiants and information they had received from informants. The personal information was obtained[65 MICHAPP 727] by surveillance and investigation and corroborated the informant information. As to the information supplied by informants, the affidavits failed to contain affirmative allegations that the informants spoke with personal knowledge of the information, but the affidavits did contain facts relating to the reliability and credibility of the informants.

Defendants assert four inadequacies in the affidavits:

a. No affirmative allegations that the informants spoke with personal knowledge.

b. Failure to state underlying facts to support the affiants' conclusions as to the credibility and reliability of the informants.

c. Failure of the informant information to furnish facts to support affiants' conclusion that the marihuana was where it was claimed to be.

d. Failure to state facts establishing independent corroboration of the informant information.

1. The first attack on the adequacy of the affidavits requires an interpretation of M.C.L.A. § 780.653. We read the statute as covering two types of affidavits, namely: one in which the affiant states facts, and one in which the affiant states only informant information. The latter type may be sufficient if the information is reliable, from a credible person and if the affidavit contains affirmative allegations that the informant spoke with personal knowledge of the information. Neither type specifically fits the hybrid type of affidavits before us.

The purpose of the affidavit is to supply the magistrate with reliable information on which to judge the question of reasonable or probable cause. In the case of an affidavit based only on informant information, the requirement for an affirmative [65 MICHAPP 728] allegation that the informant spoke with personal knowledge of the information is necessary to supply the reliable quality of the information. Where the affiant states facts from his personal knowledge which establish the reliability of the informant information, there is no reason to require anything further. The affidavits before us contain facts stated by the affiants from personal knowledge which establish the reliability of the informant information. We reject defendants' first argument.

2. The record does not support defendants' second attack on the affidavits. The Cruz affidavit recites underlying facts supporting the credibility and reliability of his informant, see People v. Iaconis, 29 Mich.App. 443, 185 N.W.2d 609 (1971), adopted by the Supreme Court in People v. Bercheny, 387 Mich. 431, 196 N.W.2d 767 (1972). In the Winger affidavit, the credibility and reliability of the informants are established by corroborating facts furnished by affiant surveillance.

3. As to the third attack, the statute requires...