People v. Locklear

441 N.W.2d 73, 177 Mich. App. 331

• Court: Michigan Court of Appeals
• Decided: June 5, 1989
• Docket: Docket 104145
• Status: Published

Opinions

Michael J. Kelly, J.

Defendant was charged with possession with intent to deliver less than fifty grams of a mixture containing cocaine. MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). Defendant appealed the denial by the trial court of her motion to quash the information and suppress the evidence seized. This Court denied leave to appeal. However, in lieu of granting leave to appeal, the Supreme Court remanded to this Court for consideration as on leave granted. People v Locklear, 429 Mich 866; 413 NW2d 428 (1987).

Evidence taken at defendant’s preliminary examination revealed that Lieutenant Jack Baird went to Judge Don Binkowski’s residence at approximately 11:15 p.m. on January 17, 1984, to obtain a search warrant for 22620 Oak Lane Road in Warren. Baird testified that he swore to the facts in the affidavit and was told by the judge to sign the warrant. Baird stated that he then inadvertently signed on the signature line designated for the issuing magistrate.

Subsequently, at approximately 11:50 p.m. on the same date the home at 22620 Oak Lane Road was entered and searched. The search was nonconsensual. The items seized formed the basis for the charge against defendant. At the preliminary examination, the examining magistrate was Judge Binkowski. The judge noted that he did sign the jurat and that he did so with the intention of authorizing the search warrant. He did not know why his signature did not appear on the warrant. Thereafter, on the continued examination date, Judge Binkowski saw the issue as one of form over substance and ruled that the search warrant was valid. Defendant was bound over to circuit court.

At the trial court level defendant moved to quash the information and suppress the evidence on the ground that the search warrant was not signed or issued by a neutral and detached magistrate—but rather by the officer in charge of the case, Lieutenant Baird. The trial court denied the motion and that decision forms the sole basis of this appeal.

MCL 780.651; MSA 28.1259(1) provides:

When an affidavit is made on oath to a magistrate authorized to issue warrants in criminal cases and when the affidavit establishes the grounds for issuing a warrant pursuant to this act, the magistrate, if he is satisfied that there is reasonable or probable cause therefor, shall issue a warrant to search the house, building or other location or place where the property or thing which is to be searched for and seized is situated.

In People v Hentkowski, 154 Mich App 171; 397 NW2d 255 (1986), a nearly identical fact situation was presented. Defendant there faced possession of controlled substance charges based on evidence seized pursuant to a warrant. Defendant moved to suppress this evidence because the search warrant was not signed by a magistrate. As here, the magistrate in People v Hentkowski failed to sign the warrant, although he did sign the line on the affidavit (the jurat), acknowledging that the affidavit was subscribed and sworn before him. In People v Hentkowski, for purposes of analysis, the panel presumed there was probable cause to search. However, the Court noted that both the Fourth Amendment to the United States Constitution and the Michigan Constitution, Const 1963, art 1, § 11, contained warrant requirements that must be met for a valid search. Relying on these constitutional provisions the Court concluded that a search or seizure undertaken without a warrant, where none of the exceptions to the warrant requirement apply, or pursuant to an invalid warrant was "unreasonable per se.” People v Hentkowski, supra at 176.

Holding that in order for the police to obtain a valid warrant the constitutional requirement that the warrant must "issue” had to be met, the Hentkowski Court then concluded "that a magistrate 'issues’ a 'warrant’ only when he signs an appropriate document and turns it over to the proper person.” Id. at 177.

We believe that this reasoning provides a sound basis for reversing the denial of defendant’s motion to quash the information and suppress the evidence seized. The warrant in question here could not "issue” without the signature of a neutral detached magistrate.

We also find that the facts and issues presented here are distinguishable from People v Mitchell, 428 Mich 364; 408 NW2d 798 (1987). The critical fact presented in Mitchell was that the affiant had failed to sign the affidavit accompanying the search warrant. The Supreme Court held that this created a presumption of invalidity that "may be rebutted by a showing that the facts in the affidavit were presented under oath to the magistrate who authorized the issuance of the search warrant.” Id. at 366.

Here we are faced with a more fundamental problem. The officer in charge of the investigation was the one who signed the line meant for the magistrate issuing the warrant. For that reason, we hold that, consistent with both United States and Michigan constitutional authority, for a valid warrant to issue it must be properly signed by a neutral and detached magistrate. Shadwick v City of Tampa, 407 US 345, 350; 92 S Ct 2119; 32 L Ed 2d 783 (1972), People v Hentkowski, supra. That was not the case here and the warrant used to seize the items that supported the charges against defendant was invalid.

Reversed and remanded.

McDonald, P.J., concurred.