People v. Ware

• Decision Date: 03 May 1977
• Docket Number: Docket Nos. 28387,28388
• Citation: 254 N.W.2d 926,75 Mich.App. 448
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ken WARE, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee BROOKS, Defendant-Appellant. 75 Mich.App. 448, 254 N.W.2d 926
• Court: Court of Appeal of Michigan — District of US

Page 926

254 N.W.2d 926

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ken WARE, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee BROOKS, Defendant-Appellant.

Docket Nos. 28387, 28388.

75 Mich.App. 448, 254 N.W.2d 926

Court of Appeals of Michigan.

May 3, 1977.

Released for Publication June 28, 1977.

[75 MICHAPP 448] Milton R. Henry, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, David B. Higbee, Asst. Pros. Atty., for plaintiff-appellee.

[75 MICHAPP 449] Before R. B. BURNS, T. M. BURNS and RILEY, JJ.

R. B. BURNS, Presiding Judge.

Defendants appeal their bench conviction of possession of heroin with intent to deliver. M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a).

Defendants were discovered and arrested on premises searched by the police upon execution of a search warrant issued by a Highland Park municipal judge. Defendants contend on appeal that this search warrant was invalidly issued as no authorization order signed by the prosecuting attorney was filed with the judge as allegedly required by M.C.L.A. § 764.1; M.S.A. § 28.860. Accordingly, they believe that the evidence seized should be suppressed.

Defendants' contention about the (in)validity of the warrant is incorrect. M.C.L.A. § 764.1; M.S.A. § 28.860 is contained in the section of the Code of Criminal Procedure entitled "Arrest" and is concerned by its express terms with "the apprehension of persons charged with offenses". By contrast, the section of the code specifically authorizing search warrants, M.C.L.A. § 780.651; M.S.A. § 28.1259(1), contains no such "order in writing" requirement.

The municipal judge who issued the warrant in this case is a "magistrate" under M.C.L.A. § 761.1; M.S.A. § 28.843. The most recent formulation of M.C.L.A. § 600.8511; M.S.A. § 27A.8511, the statute enumerating "jurisdiction and duties" of magistrates, reads in pertinent part as follows;

"(8)(b) To issue warrants for the arrest of any person upon the written authorization of the prosecuting or municipal attorney.

[75 MICHAPP 450] "(d) To issue search warrants, when authorized to do so by a district court judge."

The Legislature obviously varied these neighboring sections intentionally so as to require a written authorization order from the prosecutor only for arrest warrants. There is no authority in the statutes or common law of Michigan for extending this requirement to search warrants.

Defendants also contend that the trial judge's finding of guilty of possession of heroin with...