People v. Sobczak-Obetts, Docket No. 214787.

• Decision Date: 23 February 2000
• Docket Number: Docket No. 214787.
• Citation: 238 Mich. App. 495,606 N.W.2d 658
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michelle Ann SOBCZAK-OBETTS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

606 N.W.2d 658

238 Mich. App. 495

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Michelle Ann SOBCZAK-OBETTS, Defendant-Appellee.

Docket No. 214787.

Court of Appeals of Michigan.

Submitted June 8, 1999, at Grand Rapids.

Decided November 5, 1999, at 9:45 a.m.

Released for Publication February 23, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Vicki L. Seidl, Assistant Prosecuting Attorney, for the people.

Jeffrey P. Kirchhoff, Grand Rapids, for the defendant on appeal.

Before: MARK J. CAVANAGH, P.J., and HOEKSTRA and GAGE, JJ.

HOEKSTRA, J.

In this case, this panel is called on to review a state trial court's decision to suppress evidence seized under a federal search warrant but used in a state prosecution. The lower court suppressed the evidence because the federal warrant did not recite the basis for probable cause or have attached to it the affidavit in support of probable cause, as required by state statute, M.C.L. § 780.654; MSA 28.1259(4). No affidavit was attached because federal law contains no such requirement, and a federal magistrate had ordered the affidavit sealed. Because I find that our Supreme Court's decision in People v. Moten, 233 Mich. 169, 206 N.W. 506 (1925), requires suppression of evidence seized under these circumstances, I would affirm the lower court's decision.¹ Despite this Court's previous efforts to depart from Moten `s strict construction of Michigan's warrant statute, the dated Supreme Court decision remains good law. Nevertheless, I urge our Supreme Court to reconsider this matter, but, until it does, I feel I must apply its decision in Moten. Further, because I am following authority that supersedes holdings of this Court, I do not believe that I am required to declare a conflict under MCR 7.215(H).

Neither party disputes the essential facts of this case. Agents of the Federal Bureau of Investigation requested and obtained, from a federal magistrate, a search warrant authorizing agents to search defendant's place of business and her home for records that might prove defendant had defrauded her worker's compensation insurer. The search warrant, obtained under federal law, did not recite the basis for probable cause or have attached to it the affidavit in support of the warrant.

Both state and federal law enforcement agents executed the warrant. While searching defendant's home, agents discovered and seized two handguns. After completing their search, and consistent with federal procedure, agents left a copy of the search warrant and a return listing the items seized. They did not leave a copy of the affidavit, and, as noted above, the warrant did not recite the basis for the probable cause supporting the warrant.

Before her trial on the state charges, defendant moved to have evidence of the handguns suppressed, arguing that the search was defective under Michigan law, because no affidavit was attached to the search warrant left at the scene as required by M.C.L. § 780.654; MSA 28.1259(4).² The trial court, holding that Moten, supra, controlled, reluctantly agreed and entered an order suppressing the evidence and dismissing the charges. On appeal, the prosecution argues that the trial court erred in relying on Moten without considering this Court's decision in People v. Pipok (After Remand), 191 Mich. App. 669, 479 N.W.2d 359 (1991). Defendant, on the other hand, argues that Pipok was wrongly decided because it contradicts Moten and should not be applied. Defendant further argues that because Moten remains good law as established by our Supreme Court, we are bound to apply it. I agree with defendant that Pipok was wrongly decided and that, under Moten, the evidence must be suppressed.

On appeal from a trial court's ruling to suppress seized evidence, this Court reviews the trial court's findings of fact for clear error and reviews de novo the ultimate decision. People v. Darwich, 226 Mich.App. 635, 637, 575 N.W.2d 44 (1997). Further, in a joint operation between the state and federal government, state law governs the validity of a search warrant in a state court. People v. Paladino, 204 Mich.App. 505, 507-508, 516 N.W.2d 113 (1994). Under Michigan law, the application for a search warrant must be supported by an affidavit "made on oath to a magistrate authorized to issue warrants in criminal cases." MCL 780.651(1); MSA 28.1259(1)(1). The finding of probable cause "shall be based upon all the facts related within the affidavit." MCL 780.653; MSA 28.1259(3). As noted above, in executing the warrant, the officer "shall forthwith give to the person from whom or from whose premises the property was taken a copy of the warrant and shall give to the person a copy of the tabulation upon completion." MCL 780.655; MSA 28.1259(5). The warrant form is prescribed by statute:

A search warrant shall be directed to the sheriff or any peace officer, commanding such officer to search the house, building or other location or place, where any property or other thing for which he is required to search is believed to be concealed. Each warrant shall designate and describe the house or building or other location or place to be searched and the property or thing to be seized. The warrant shall also state the grounds or the probable or reasonable cause for its issuance, or in lieu thereof, a copy of the affidavit may be attached thereto. [MCL 780.654; MSA 28.1259(4) (emphasis supplied).]

Here, officials left the warrant at defendant's home without the supporting affidavit, and the warrant itself did not state the probable cause grounds.

Under Moten, a record of the probable cause determination must be established, and a defendant must receive that record in order to know promptly the nature of the accusation being brought. Moten, supra at 173, 206 N.W. 506. Absent full compliance with the statute, the evidence should be suppressed. Id. In Pipok, supra, however, this Court attempted to distill from the revised warrant statute and Moten the general principle that a record of probable cause determination must be established so that a defendant can know the basis for the charge. Pipok, supra at 673, 479 N.W.2d 359. From that general principle, this Court then concluded that where a defendant has not shown prejudice from being denied access to that record at the time of the search, "the failure of the warrant to state the grounds for issuance or to have the supporting affidavit attached did not abrogate the purpose of the statute and that the error was one of procedure not requiring suppression of the evidence." Id. In my opinion, however, Pipok was wrongly decided. Although I agree with the sentiment underlying its holding, the holding itself contradicts our Supreme Court's decision in Moten, supra at 174, 206 N.W. 506, which states in pertinent part:

In our statute the mandate is positive that the warrant shall recite all material facts alleged in the affidavit, and a statutory form of search warrant is provided indicating just where to insert the recital which the law makes an essential part of a valid warrant. Unfortunately this essential requirement was ignored. The warrant is invalid, and the evidence procured thereunder inadmissible.

The Pipok Court correctly noted that the Legislature had revised the statute in question, M.C.L. § 780.654; MSA 28.1259(4), to permit the attachment of the affidavit itself, rather than requiring the warrant to recite the facts as stated in the affidavit:

Since the court's decision in Moten, statutory law in this state has changed to permit a supporting affidavit to be attached to the warrant in place of stating the material facts, or grounds for issuance, on the warrant itself. Again, the provision is designed to guarantee that a record of probable cause is established. The Legislature has apparently recognized that the affidavit alone is sufficient to establish a record of probable cause and that it is not necessary to transcribe the material facts from the affidavit onto the warrant.[Pipok, supra at 672-673, 479 N.W.2d 359.]

To the extent that one could read Pipok to hold that its departure from Moten is justified by a change in the warrant statute, I find the decision mistaken.³ Although this change makes it easier for officials to comply with the statute, it does not modify the mandatory nature of the statute's language. Consequently, the change in the statute's requirements does not affect the authority of the Supreme Court's holding in Moten, which clearly holds that a violation of this portion of the statute requires that the evidence be excluded.

In sum, our Supreme Court's holdings in Moten requires us to find that where the warrant relies on an attached affidavit for its statement of "the grounds or the probable or reasonable cause for its issuance"⁴ and that affidavit is not attached to the warrant, "[t]he warrant is invalid, and the evidence procured thereunder inadmissible."⁵ See also People v. Galnt, 235 Mich. 646, 209 N.W. 915 (1926), and People v. Bules, 234 Mich. 335, 207 N.W. 818 (1926). Under this holding, we are not free to decide if the general purpose of the statute has been satisfied.

Another panel of this Court recently reaffirmed Pipok in People v. Garvin, 235 Mich.App. 90, 597 N.W.2d 194 (1999). In that case, the police initially attached the affidavit to the warrant, but they did not leave the affidavit at the scene. Although the Garvin Court held that "a copy of the affidavit becomes part of the `copy of the warrant' that must be provided or left," it also held that the officers' failure to comply with the statute did not require suppression of evidence seized pursuant to the warrant. Garvin, supra at 99, 597 N.W.2d 194. In support of this finding, the Garvin Court quoted Pipok⁶ and concluded:

Thus, it follows that the failure of the police to provide or leave a copy of the affidavit

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