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PEOPLE v. WHITE
People v. White, Michigan Court of Appeals, Docket No. 95952 (Dec. 22, 1988)
Factual and Procedural Background
Defendant Calvin George White was charged with possession with intent to deliver marijuana. After a preliminary examination he was bound over to Recorder's Court of Detroit. In Recorder's Court defendant moved to suppress evidence seized pursuant to a search warrant; the court granted the motion and dismissed the case, finding issuance of the warrant was not supported by probable cause. The prosecutor appealed. Defendant filed a cross-appeal challenging the magistrate's authority to issue the warrant. The Court of Appeals reversed the order of dismissal and the order granting the motion to suppress.
Relevant facts recited in the supporting affidavit for the March 27, 1986 search warrant for 19134 Braile, Detroit, included: a confidential informant (credibility and reliability not challenged) observed defendant at the Braile address holding several plastic baggies of suspected marijuana and observed three persons in the living room smoking marijuana; an attempted controlled buy on March 26, 1986 was unsuccessful but the informant spoke with defendant and witnessed the observations described; a subsequent thirty-minute police surveillance on March 26 observed seventeen people arrive and enter the house but remain only about thirty seconds each (ten arrived by car and seven by foot), conduct characterized by the affiant as common in narcotics trafficking; and the narcotics section had received four reports of drugs being sold at the address between April 26, 1985 and March 24, 1986.
Legal Issues Presented
- Whether the magistrate's issuance of the search warrant for 19134 Braile was supported by probable cause.
- Whether a magistrate may validly issue search warrants without written authorization by a district court judge or written authorization order from the prosecutor (i.e., whether written authorization is required).
Arguments of the Parties
People (Appellant)
- The opinion records that the prosecutor appealed the Recorder's Court's grant of the motion to suppress and dismissal. The court's opinion does not set out a detailed transcript of the People's separate legal arguments beyond the appeal of suppression.
Defendant (Cross-Appellant)
- Defendant argued the magistrate lacked authority to issue the search warrant because there was no written authorization by a district court judge at the time the warrant issued.
- At the suppression hearing defense counsel stated he had been told by the 36th District Court administrator that nothing in writing authorized magistrates to issue search warrants, and that a magistrate had told counsel there was, to that magistrate's knowledge, no written authorization (only an asserted oral authorization).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| People v. Sundling, 153 Mich. App. 277; 395 N.W.2d 308 (1986) | Standard for probable cause supporting issuance of a search warrant and deference to a magistrate's determination. | The court recited Sundling's standard (probable cause exists when facts and circumstances would allow a reasonably prudent person to believe evidence is present) and applied the principle of deference to uphold the magistrate's finding absent abuse of discretion. |
| People v. David, 119 Mich. App. 289; 326 N.W.2d 485 (1982), lv den 417 Mich. 858 (1983) | Consideration of delay/staleness between informant observations and issuance of a warrant; demonstrating when a short delay may render an affidavit stale. | The court distinguished David on the facts: in David the credibility of the informant was not demonstrated and a three-day delay rendered the affidavit stale; here the informant's credibility was not challenged, the informant observed possession of marijuana when leaving the premises, police observed corroborative trafficking activity, and the delay was significantly shorter, so the affidavit was not fatally stale. |
| People v. Brooks, 75 Mich. App. 448; 254 N.W.2d 926 (1977) | Interpretation of statutes MCL 600.8511(b) and (d) concerning written authorization requirements for warrants; holding that written prosecutor authorization is required for arrest warrants but not for search warrants. | The court relied on Brooks's statutory interpretation to reject defendant's claim that written authorization from the prosecutor was required for search warrants, concluding the Legislature intentionally required written authorization for arrest warrants but not for search warrants. |
Court's Reasoning and Analysis
The court began by stating the legal standard for probable cause (citing People v. Sundling): probable cause exists when the facts and circumstances would allow a reasonably prudent person to believe evidence or contraband is in the place to be searched. The court emphasized deference to a magistrate's probable cause determination, which will be upheld absent an abuse of discretion, and noted that such determinations are based on the affidavit presented (citing statutory authority MCL 780.653; MSA 28.1259(3)).
The court reviewed the affidavit supporting the March 27, 1986 warrant. The affidavit included the confidential informant's observations (baggies in defendant's hand; three persons smoking marijuana), an unsuccessful controlled buy in which the informant nonetheless observed defendant in possession of suspected marijuana, police surveillance on March 26 that observed seventeen short-term visitors (activity characterized by the affiant as common in narcotics trafficking), and historical reports of drug sales at the address. On these facts the court concluded a reasonably prudent person could conclude evidence of a crime or contraband was present at the premises on March 27, 1986, and that the magistrate did not abuse discretion in issuing the warrant.
Addressing the staleness argument, the court compared the present facts to People v. David. The court noted that, unlike David where informant credibility had not been shown and a three-day delay rendered the affidavit stale, here the informant's credibility was not challenged, the informant observed possession when leaving the premises, police surveillance corroborated suspicious activity, and the delay (from observations to issuance) was shorter. Thus the affidavit was not fatally stale.
On the cross-appeal regarding a magistrate's authority to issue search warrants, the court examined the statutory scheme and court rule. It observed that arrest warrants (with certain exceptions) require written authorization of the prosecuting attorney per MCL 600.8511(b); MSA 27A.8511(b), whereas magistrates have the general power to issue search warrants "when authorized to do so by a district court judge" under MCL 600.8511(d); MSA 27A.8511(d). Court rule MCR 4.401(B) permits magistrates to exercise only those duties expressly authorized by the chief judge. Relying on People v. Brooks, the court concluded the Legislature intentionally required written prosecutor authorization only for arrest warrants and did not require written authorization for search warrants. The court further stated there is no express requirement in the statute or rule that the authorization be granted by administrative order under MCR 8.112 and observed that if the Legislature or Supreme Court intended a written authorization requirement for search warrants they would have done so.
Holding and Implications
The Court reversed the Recorder's Court order granting the motion to suppress and the order dismissing the case; it rejected defendant's claim that a magistrate lacked authority to issue the search warrant for lack of written authorization.
Direct consequences: the Recorder's Court suppression ruling and the dismissal were reversed, and the Court of Appeals held that written authorization (by prosecutor or administrative order) is not required for a magistrate to issue a search warrant under the cited statutes and rule. The opinion does not announce a broader change in precedent beyond its application of existing authority—rather it applied established standards for probable cause and followed People v. Brooks on the authorization issue. No new statutory requirement for written authorization was created by this opinion.
Disposition: "Affirmed in part and reversed in part" (the court affirmed the validity of the magistrate's authority to issue the warrant and reversed the Recorder's Court suppression and dismissal).
PER CURIAM.
Defendant Calvin George White was charged with possession with intent to deliver marijuana, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c). Following preliminary examination, he was bound over to Recorder's Court of Detroit for trial on the charged offense. In Recorder's Court defendant filed a motion to suppress the evidence which had been seized pursuant to a search warrant and which was the basis for the marijuana charge. The court granted the motion to suppress and dismissed the case, finding that issuance of the warrant was not supported by probable cause. The prosecutor appeals. Defendant has filed a cross-appeal, challenging the court's rejection of his claim that the magistrate lacked the authority to issue the warrant. We reverse the order of dismissal and the order granting the motion to suppress.
Probable cause for issuance of a search warrant exists when the facts and circumstances would allow a person of reasonable prudence to believe that the evidence of a crime or contraband sought is in the stated place. People v Sundling, 153 Mich. App. 277, 286; 395 N.W.2d 308 (1986). A magistrate's determination of probable cause is given great deference and is upheld absent an abuse of discretion. Id. A magistrate's finding of probable cause is based upon all the facts related within the affidavit presented to the magistrate. MCL 780.653; MSA 28.1259(3).
In this case, we are persuaded of no abuse of the magistrate's discretion. The search warrant was issued on March 27, 1986, and authorized the police to search the premises at 19134 Braile in Detroit. The supporting affidavit of a Detroit police officer assigned to the investigation of controlled substances violations was based in part on the observations of a confidential informant, whose credibility and reliability are not challenged. According to the affidavit, the informant's attempt to make a controlled buy of marijuana from defendant at the Braile address on March 26, 1986, was unsuccessful. But the informant spoke with defendant at that address on that day and saw several plastic baggies of suspected marijuana in defendant's hand. The informant also saw three persons sitting in the living room smoking marijuana. The affiant further stated that during a subsequent thirty-minute police surveillance of the house on March 26, seventeen people arrived. Each of those people, ten of whom arrived by car and seven by foot, entered the house but stayed for only about thirty seconds. The affiant stated that such activity is common in narcotics trafficking, and that, from April 26, 1985, to March 24, 1986, the narcotics section had received four reports of drugs being sold at 19134 Braile.
We find that, on the basis of the affidavit submitted in this case, a reasonably prudent person could have concluded that evidence of a crime or contraband was present at 19134 Braile on March 27, 1986. While the passage of time is a valid consideration in deciding whether probable cause exists at the time a warrant is issued, the delay in this case was not substantial and, under these facts, did not render the information in the affidavit fatally stale. Cf. People v David, 119 Mich. App. 289; 326 N.W.2d 485 (1982), lv den 417 Mich. 858 (1983), where this Court observed that the credibility of the informant had not been demonstrated and, in addition, concluded that the three-day delay following a controlled buy of marijuana had rendered the affidavit stale. In contrast to the facts in David, when the informant left the premises in this case, he saw defendant and others in possession of marijuana. There was also police observation of activity at the house which was common in narcotics trafficking, and the delay in securing the search warrant was significantly shorter than that in David. Giving due deference to the magistrate, we find that the Recorder's Court erred in holding that the magistrate's decision to issue the search warrant was erroneous.
On cross-appeal defendant argues that a magistrate has no authority to issue search warrants without the written authorization of a district court judge, that there was no such authorization in existence at the time the instant search warrant was issued, and that the search warrant was therefore invalid. We disagree.
At the hearing on the motion to suppress, defense counsel stated that he had gone to the office of the administrator of the 36th District Court and had been told that there is nothing in writing which authorizes the court's magistrates to issue search warrants. Counsel also stated that he had spoken with one of the magistrates, who told him "that although they believe they have oral authorization, that there's nothing in writing to that person's knowledge either."
A magistrate's power to issue an arrest warrant in a particular case is, with certain exceptions, expressly dependent on the written authorization of the prosecuting attorney or municipal attorney. MCL 600.8511(b); MSA 27A.8511(b). In contrast, magistrates have the general power "to issue search warrants, when authorized to do so by a district court judge." MCL 600.8511(d); MSA 27A.8511(d). By court rule, magistrates may exercise only those duties expressly authorized by the chief judge of the district or division. MCR 4.401(B).
In People v Brooks, 75 Mich. App. 448; 254 N.W.2d 926 (1977), this Court rejected the defendant's claim that a search warrant issued by a municipal judge (i.e., magistrate) was invalid because it was issued without the filing of an authorization order signed by the prosecutor. Referring to MCL 600.8511(b) and (d); MSA 27A.8511(b) and (d), the Court stated:
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. [ 75 Mich. App. 450.]
We are persuaded that this reasoning applies also to the claim made by defendant in this case. There is no requirement of written authorization in MCL 600.8511(d); MSA 27A.8511(d) or in MCR 4.401(B), and, contrary to defendant's claim on appeal, there is no express requirement that the authorization contemplated by the statute and court rule be granted by administrative order under MCR 8.112. We are persuaded that, had the Legislature or Supreme Court intended to require written authorization, they would have done so.
Affirmed in part and reversed in part.
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