People v. Zoder

• Decision Date: 23 December 1968
• Docket Number: Docket No. 1743,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles ZODER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 289

166 N.W.2d 289

15 Mich.App. 118

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles ZODER, Defendant-Appellant.

Docket No. 1743.

Court of Appeals of Michigan, Division No. 2.

Dec. 23, 1968.

Released for Publication April 9, 1969.

Richard C. Elconin, Golden & Elconin, Monroe, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Paul E. Braunlich, Pros. Atty., Monroe County, Monroe, for appellee.

Before QUINN, P.J., and THOMAS GILES KAVANAGH and LEVIN, JJ.

LEVIN, Judge.

The defendant appeals a jury verdict convicting him of possession for sale and sale of intoxicating liquor without a license (P.A.1933 (Ex.Sess.), No. 8, as amended (M.C.L.A. § 436.1 et seq.; Stat.Ann.1957 Rev. § 18.971 et seq.)).

All the questions on appeal turn on the propriety of the issuance of a search warrant under which certain alcoholic beverages were seized. The defendant made a timely motion to suppress this evidence which was denied by the trial court.

Martha Cox, who had a great deal of trouble with her husband Raymond on account of his excessive drinking, called the police on Sunday, August 8, 1962, when her husband returned from defendant's boatyard in an intoxicated condition and began abusing her and one of their children. When the police found a bottle of 'moonshine' in her husband's automobile she accompanied them to the office of a justice of the peace where she executed a form affidavit and complaint for a search warrant.

The pertinent language of the form states that on August 8, 1965, Martha Cox appeared before the justice of the peace and after being first duly sworn said that she 'has good reason to believe and does believe that certain alcoholic liquors * * * are being unawfully manufactured, sold, offered and kept for sale' by the defendant Zoder on premises occupied by him in the affidavit described, that he had not been licensed so to do 'and that the facts supporting such suspicion and belief are as follows: to-wit: Raymond Cox by the purchase of moonshine the complainants husband'.

Mrs. Cox was questioned extensively regarding her assertion that her husband Raymond Cox had purchased moonshine. She conceded she had never seen the defendant sell alcoholic beverages to her husband. She did not assert that her husband had ever told her he purchased alcoholic beverages from Zoder. She intimated that the basis of her information and belief that Zoder sold her husband intoxicating liquor was the 'common knowledge' that Zoder's was the only place her husband could obtain such beverages on Sunday.

It is now settled, at least in the Federal courts, that hearsay evidence may provide the probable cause ¹ necessary for the issuance of a search warrant 'so long as a substantial basis for crediting the hearsay is presented'. Jones v. United States (1960), 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697, 707; Aguilar v. Texas (1964), 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723, 729. ² It is also settled, however, that an affidavit for a search warrant based upon hearsay which does not set forth a substantial basis for crediting the hearsay is not sufficient.

In Aguilar v. Texas, Supra, at p. 109, 84 S.Ct. at p. 1511, the affiants stated that they had 'received reliable information from a credible person' and on the basis thereof believed that narcotics were being kept at certain described premises for purposes of sale contrary to law. The Court held the affidavit deficient because it stated a (p. 113, 84 S.Ct. 1509) 'mere conclusion' and did not inform the magistrate (p. 114, 84 S.Ct. p. 1514) 'of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed (citation omitted) was 'credible' or his information 'reliable."

The vice of stating a 'mere conclusion' and in failing to state the underlying circumstances upon which the conclusion is based is that without a statement of the underlying circumstances the magistrate must accept the inferences drawn by the affiant rather than make his own independent evaluation. One of the reasons courts accept a finding of probable cause based on hearsay is that the hearsay is evaluated 'by a neutral and detached magistrate'. Johnson v. United States (1948), 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440.

The Aguilar Court reviewed its earlier holdings. In Nathanson v. United States (1933), 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159, the Court held defective an affidavit which stated that the affiant 'has cause to suspect and does believe that certain merchandise', the description and location of which was therein set forth, had been brought into the United States 'contrary to law.' The affidavit, said the United States Supreme Court, was not sufficient because it lacked (p. 46, 54 S.Ct. p. 13) 'any statement of adequate supporting facts.'

The Aguilar Court also reviewed at length Giordenello v. United States (1958), 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. In Giordenello the affidavit on its face purported to have been made on personal knowledge, but upon examination of the affiant at the hearing on the suppression motion it appeared that it was actually made upon information furnished by others. The Giordenello affidavit stated that on a specified date 'Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation'. The Court ruled the affidavit defective:

'The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made. We think these deficiencies could not be cured by the Commissioner's reliance upon a presumption that the complaint was made on the personal knowledge of the complaining officer. The insubstantiality of such an argument is illustrated by the facts of this very case, for Finley's (the affiant's) testimony at the suppression hearing clearly showed that he had no personal knowledge of the matters on which his charge was based.' Giordenello v. United States, Supra, p. 486, 78 S.Ct. p. 1250.

So, here. Martha Cox's affidavit was made on information and belief. The statement therein that her husband had 'purchased' moonshine was a 'mere conclusion'. Martha Cox testified that she did not in fact have any personal knowledge whether her husband Raymond Cox had ever purchased 'moonshine' or any other alcoholic beverages from the defendant Zoder.

Here, as in Giordenello, the affidavit did not state that the affiant spoke with personal knowledge of the matters contained therein. As in Nathanson, Giordenello and Aguilar, Martha Cox's affidavit did not state the sources...