People v. Darwich

575 N.W.2d 44, 226 Mich. App. 635

• Court: Michigan Court of Appeals
• Decided: March 10, 1998
• Docket: Docket 195386
• Status: Published

Opinions

Hoekstra, J.

The people appeal as of right an order of the Recorder’s Court granting defendant’s motion to suppress evidence and dismissing a charge of possession of marijuana with intent to deliver. MCL 333.7401(2)(d)(iii); MSA 14.15(7401)(2)(d)(iii). We reverse and remand for reinstatement of the charge.

On appeal, the people argue that probable cause existed to search defendant’s residence and, thus, the evidence obtained in the search of defendant’s residence should not have been suppressed. We agree. In reviewing a magistrate’s decision to issue a search warrant, this Court must evaluate the search warrant and underlying affidavit in a common-sense and realistic manner. People v Poole, 218 Mich App 702, 705; 555 NW2d 485 (1996). This Court must then determine whether a reasonably cautious person could have concluded, under the totality of the circumstances, that there was a substantial basis for the magistrate’s finding of probable cause. People v Russo, 439 Mich 584, 603-605; 487 NW2d 698 (1992). Probable cause for a search exists where a person of reasonable caution would conclude that contraband or evidence of criminal conduct will be found in the place to be searched. People v Chandler, 211 Mich App 604, 612; 536 NW2d 799 (1995). This Court reviews for clear error the trial court’s findings of fact in deciding a motion to suppress evidence. People v Head, 211 Mich App 205, 209; 535 NW2d 563 (1995). We review de novo the trial court’s ultimate decision regarding a motion to suppress. People v Goforth, 222 Mich App 306, 310, n 4; 564 NW2d 526 (1997).

After reviewing the search warrant affidavit as a whole,¹ we find that it establishes probable cause to search defendant’s residence. The affidavit establishes defendant’s involvement in the distribution of marijuana at his place of business. The affidavit states that defendant supplied marijuana to an individual, Leon Lippett, who was instructed by defendant to sell it in defendant’s store. Lippett’s statement in this regard was consistent with the observations of undercover officers who witnessed drug trafficking at defendant’s store on other occasions, including occasions when defendant was present in the store.

The affidavit also states that on one such occasion defendant motioned an undercover officer to the rear of his store to where another individual, Kevin Dempsey, was selling marijuana, and that on another occasion, when an undercover officer stood in the rear of the store, numerous persons approached him and asked for defendant in connection with the purchase of marijuana. Additionally, some marijuana and prerecorded funds were found in the soda pop case in defendant’s store.

Next, the affidavit addresses the basis for believing that a search of defendant’s residence would result in the discovery of evidence associated with this criminal activity. In this regard, the affidavit relies on the experience of the affiant to connect the criminal activity described in the affidavit with defendant’s residence.

Our dissenting colleague raises the issue whether an affidavit states sufficient facts and circumstances that can be reasonably relied upon to establish probable cause for the issuance of a search warrant when those facts include the experience of the affiant. The dissent concludes that reliance on an affiant’s experience in making the connection between a defendant’s involvement in criminal activity at one location and possible discovery of evidence associated with that enteprise at another location is not a fact or circumstance that may be considered by an examining magistrate because such averments impermissibly elevate the affiant’s judgment above that of the magistrate. Respectfully, we believe such a conclusion is unwarranted. The magistrate is not required to accept blindly an affiant’s statements. Rather, the magistrate’s duty is to examine the affiant’s reliance on the affiant’s experience in the same way the magistrate examines other facts and circumstances presented in the affidavit and decide whether, when read in a common-sense and realistic manner, they together establish probable cause. Thus, we find that an affiant’s representations in a search warrant affidavit that are based upon the affiant’s experience can be considered along with all the other facts and circumstances presented to the examining magistrate in determining probable cause.

Although we are aware of no Michigan case that addresses this precise issue, we note that two federal cases rely on these same types of statements in search warrant affidavits to find probable cause for the issuance of search warrants. In United States v Pace, 955 F2d 270, 277 (CA 5, 1992), the court held that probable cause existed to search a suspect’s home after evidence of drug activity was found at an unrelated site and the affidavit at issue stated that “individuals who cultivate marijuana routinely conceal contraband, proceeds of drug sales and records of drug transactions in their homes in order to prevent law enforcement officials from discovering them.” Similarly, in United States v Thomas, 973 F2d 1152, 1157 (CA 5, 1992), the court concluded that because the dies used to restamp vehicle identification numbers were not found at the suspect’s shop, where there was evidence that the numbers on vehicles were being altered, “the expectation of finding the dies at [the suspect’s] home was a reasonable inference supporting a determination of probable cause.”

Likewise, in the instant case, the affidavit stated that no significant quantity of marijuana was found at defendant’s store. The affiant stated that his experience led him to believe that it is common for drug dealers to package and store narcotics at one location and distribute them at another. These statements, together with the statements implicating defendant in the selling of narcotics, lead to a logical inference that defendant stored elsewhere the materials used in the operation. Defendant’s residence was a logical place to look for the source of the marijuana packets sold at defendant’s store. Accordingly, the issuing magistrate was justified in finding probable cause to search defendant’s residence in the instant case, and the trial court improperly granted defendant’s motion to suppress the evidence obtained pursuant to that warrant.

Reversed and remanded for reinstatement of the charge. We do not retain jurisdiction.

Taylor, J., concurred.

1 While we can appreciate some of the concerns expressed by our dissenting colleague and admit that some of the language contained in the affidavit is less than ideal when isolated and examined statement by statement as our colleague has done, nonetheless, it is our obligation to assess the affidavit on the basis of the totality of the circumstances. Russo, supra.