People v. Sherbine

• Citation: 421 Mich. 502,364 N.W.2d 658
• Decision Date: 01 February 1985
• Docket Number: Docket No. 73179,No. 10,10
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John J. SHERBINE, II, Defendant-Appellee. Calendar421 Mich. 502, 364 N.W.2d 658
• Court: Supreme Court of Michigan

Page 658

364 N.W.2d 658

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John J. SHERBINE, II, Defendant-Appellee.

Docket No. 73179.

Calendar No. 10.

421 Mich. 502, 364 N.W.2d 658

Supreme Court of Michigan.

Argued June 7, 1984.

Decided Dec. 28, 1984.

Released for Publication Feb. 1, 1985.

Jackson County Prosecutor's Office, Joseph A. Greenleaf, Chief Appellate Atty., Jackson, for plaintiff-appellant.

Parker, Adams, Mazur & Matyjaszek, P.C., James D. Adams, Jackson, for defendant-appellee.

LEVIN, Justice.

This appeal presents two separate but interrelated questions regarding search warrant procedure in this state. The first is whether a search warrant based on an affidavit issued in violation of M.C.L. Sec. 780.653; M.S.A. Sec. 28.1259(3), is invalid, and evidence obtained is required to be excluded. The second is whether this Court should reject the "Aguilar ¹-Spinelli ² test" heretofore applied by Michigan courts ³ and substitute the totality of the circumstances test recently announced by the United States Supreme Court in Illinois v. Gates. ⁴

We conclude that the search and seizure was based upon an invalid search warrant and must be excluded. This conclusion is mandated by the statute. Our decision makes it unnecessary to decide whether Const.1963, art. 1, Sec. 11, ⁵ incorporates the concepts of the Aguilar-Spinelli test.

I

John J. Sherbine, II, was found guilty of first-degree murder. ⁶ His conviction was reversed, and the cause remanded for a new trial because of the receipt in evidence of confessions and admissions that the Court of Appeals found should have been suppressed. ⁷ While the appeal was pending, and subsequent to the reversal of his conviction, Sherbine made several collect telephone calls to Joseph Franklin Bradway, Jr.

These telephone calls began in "late August or early September of 1982" and continued until November of 1983. A number of these conversations were recorded pursuant to a search warrant issued on September 9, 1983, and the prosecution attempted to introduce these tape recordings into evidence at Sherbine's trial. The circuit judge, however, granted Sherbine's motion to suppress the tape recordings. The Court of Appeals denied the prosecution's application for leave to appeal. ⁸ This court granted leave to appeal. ⁹ We now affirm the circuit court.

II

It is well established that before a search warrant may be issued the law enforcement officer seeking the warrant must establish probable cause to believe that incriminating evidence may be found in a specific location. ¹⁰ This showing of probable cause is generally accomplished by a sworn affidavit setting forth all the facts known through personal observations and hearsay to the affiant. In this state, the contents of the affidavits is provided by statute.

The statute 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." M.C.L. Sec. 780.653; M.S.A. Sec. 28.1259(3). (Emphasis added.)

The question presented is whether the affidavit in support of the search warrant satisfied the requirements of the second sentence of the statute. We conclude that it did not.

The affidavit stated:

"D. On the morning of September 8, 1983, your affiant conducted an interview with Joseph Franklin Bradway, Jr. at the Jackson County Sheriff's Department with reference to telephone conversations between himself and John Sherbine concerning the murder of LeRoy Earl Crenshaw.

"E. Mr. Bradway related to your affiant that he had been friends with John Sherbine since October of 1978. That Mr. Bradway started receiving collect telephone calls from John Sherbine in late August or early September of 1982. That during the course of these conversations John Sherbine would, of his own accord begin to discuss various items related to the murder of LeRoy Crenshaw. That Mr. Sherbine has continued to call Mr. Bradway, collect since that time, and in fact, he has called at least 10 times and has discussed the murder of LeRoy Crenshaw on at least half of these occasions. The nature and detail of these conversations has become more detailed and explicit with each succeeding phone call. Mr. Bradway expects to keep receiving telephone calls from Mr. Sherbine. The last telephone call from John Sherbine was received by Mr. Bradway at 1:30 p.m. on September 7, 1983."

The statute supplements the search and seizure jurisprudence that had been developed by this Court and the United States Supreme Court. The statute provides that probable cause may be developed through the use of hearsay. The leading cases allowing the use of informant hearsay are Aguilar and Spinelli. The statutory provision, enacted as part of a comprehensive codification of search warrant practice and procedure, ¹¹ was a codification and expansion of the rule enunciated in Aguilar.

In Aguilar, two Houston police officers applied for, and obtained, a search warrant upon the basis of informant-supplied information. The informant was identified only as a "credible person," a conclusion that was unsupported by any other allegation or assertion of fact. The balance of the affidavit consisted of conclusory statements that the informant had supplied "reliable information" and that the affiants believed that specified drugs were in a particular location. A search warrant was issued on the basis of the affidavit.

The United States Supreme Court held that the search warrant was invalid and the evidence should have been suppressed. In so holding, the Court developed a two-pronged test to assess whether an affidavit based on hearsay establishes probable cause. The first requirement is that "the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the [evidence was] where he claimed [it was]." Aguilar, supra, 378 U.S., p. 114, 84 S.Ct. p. 1514. Second, the affiant must provide "some of the underlying circumstances from which [he] concluded that the informant, whose identity need not be disclosed ... was 'credible' or his information 'reliable.' " Id. The Court said: "The affidavit here not only 'contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,' it does not even contain an 'affirmative allegation' that the affiant's unidentified source 'spoke with personal knowledge.' " Id., 378 U.S., p. 113, 84 S.Ct. p. 1513, quoting Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

The Legislature, in enacting the statutory provision, codified both requirements of the Aguilar decision. The statute, however, has three requirements, not two. The first is that the affidavit, when based on informant-supplied information, must contain affirmative allegations that the informant spoke with personal knowledge. The second is that the affidavit must set forth facts from which one may conclude that the informant is "credible." Because "credible" modifies the entire phrase "named or unnamed," the statute requires that proof of the informant's credibility must be presented in the affidavit whenever it is based on informant-supplied information. The naming of the informant is a factor to be considered in assessing credibility; however, it is not dispositive. ¹² 2] The statute requires in every case that the credibility of the informant be shown, unlike Aguilar, which allows a choice between a showing of informant credibility and information reliability. The third is that the information must be shown to be reliable. The Legislature has determined that probable cause is not established until all three requirements have been satisfied.

An informant's credibility must be shown by an assertion of facts tending to support a finding of credibility. While proof of credibility may be accomplished in different ways, ¹³ facts tending to show credibility must appear on the face of the affidavit. Here, no facts showing Bradway's credibility were set forth in the affidavit.

The courts have consistently held that the issuing magistrate must be supplied with "some of the underlying circumstances supporting the conclusion that the person supplying the information is reliable." ¹⁴ The emphasis upon credibility is strong. ¹⁵

The affidavit in question fails to meet the requirements of informant credibility and informational reliability. Conspicuously absent is any allegation, supported or unsupported by the underlying facts, that Bradway is a credible person. The affidavit fails to even reach the level of a bare conclusory statement that Bradway is a "credible person". ¹⁶ The affidavit does not show that Bradway had given reliable information about the telephone conversations. ¹⁷ The affidavit is deficient under the statute, the warrant invalid, and the tape recordings were properly suppressed by the circuit judge. ¹⁸

In People v. Dixon, ¹⁹ this Court ordered the suppression of evidence when the police failed to accord the defendant a statutory right and such noncompliance resulted in incriminating evidence. ²⁰

Oregon also has codified its procedures for the issuance of search warrants. In State v. Russell, 293 Or. 469, 650 P.2d 79 (1982), the Supreme Court of Oregon suppressed evidence because of noncompliance with its statute. ²¹

The statutory violation here is clear. The statute requires proof that the informant who supplied the information be credible. The affidavit here failed to satisfy this requirement. The evidence must therefore be suppressed.

Affirmed.

WILLIAMS, C.J. and KAVANAGH and CAVANAGH, JJ., concur.

BRICKLEY, Justice (concurring).

I agree with Justice Boyle that a fair and common sense reading of M.C.L....