People v. Sloan

538 N.W.2d 380, 450 Mich. 160

• Court: Michigan Supreme Court
• Decided: August 22, 1995
• Docket: 100580, (Calendar No. 17)
• Status: Published

Opinions

Cavanagh, J.

This is an interlocutory appeal arising from a denial of the defendant’s motion to suppress blood test results obtained pursuant to a search warrant. The general issue is the establishment of probable cause for search warrants under MCL 780.653; MSA 28.1259(3). The specific issue is one of first impression for Michigan: When a reviewing court assesses whether probable cause has been established for the issuance of a search warrant, may the reviewing court consider sworn, yet unrecorded, oral testimony that, in addition to an affidavit, was presented to the magistrate before he issued the warrant? We are also asked to determine whether the instant affidavit, considered alone, provided a substantial basis to support a conclusion that probable cause existed.

We hold that when a reviewing court assesses whether probable cause has been established for the issuance of a search warrant, the reviewing court may not consider sworn, yet unrecorded, oral testimony that, in addition to an affidavit, was presented to the magistrate before he issued the warrant. We also hold that the instant affidavit, considered alone, failed to provide a substantial basis to support a conclusion that probable cause existed.

Because we hold that probable cause was not established in this case under MCL 780.653; MSA 28.1259(3), we also conclude that the search warrant is invalid and that the blood test results obtained pursuant to the search warrant should be suppressed. The Court of Appeals decision is affirmed. 206 Mich App 484; 522 NW2d 684 (1994).

I. PACTS AND PROCEEDINGS

To present the relevant facts and proceedings we borrow, in part, from the Court of Appeals opinion:

On March 13, 1993, defendant was involved in an automobile accident that resulted in a fatality. Defendant and his passenger were injured and taken to the hospital. While at the hospital, a blood sample was drawn from defendant pursuant to a search warrant. The affidavit on which the warrant was based stated in pertinent part:

"On 3-13-93 on or about 11:40 p.m. (2340 hrs) Robert Leonard Sloan operating a vehicle in the City of Southgate in [the] area of Pennsylvania & Walter. Collision occurred & appears Robert Leonard Sloan under influence of intoxicating liquor, transported to Wyandotte Hospital & Medical Center. Request blood sample be taken. Robert Leonard Sloan involved in accident causing death.”

Defendant was subsequently arrested and bound over on charges of manslaughter with a motor vehicle, MCL 750.321; MSA 28.553, operating a motor vehicle while under the influence of intoxicating liquor causing a death, MCL 257.625(4); MSA 9.2325(4), and felonious driving, MCL 752.191; MSA 28.661. In the trial court, defendant moved to suppress the results of the blood test, arguing that the affidavit was insufficient because it did not allege facts on which probable cause could be based. The trial court allowed the parties to take the testimony of the magistrate who issued the warrant to determine what facts the magistrate had relied upon in issuing the warrant. The magistrate testified that he had questioned the officer about defendant’s condition. [206 Mich App 485-486.]

The magistrate stated:

I always question the witnesses regarding specificity of the charge; if there were any field sobriety tests, which I recall there were not because the person was injured and had been transferred to the hospital.

I inquired specifically as to the condition that led them to believe that drinking had been involved, specifically speech, and smell of intoxicants, condition of eyes. As I recall, he was in a condition that he was not able to speak. As I recall, that there was a strong odor of intoxicants and his eyes, which were injured as I recall, were not an important factor as the, you know, whether they were glassy or not because I recall he received injuries.

And I believe, in addition to that, there were statements related to me, about him being the operator of the vehicle, from a passenger had been made to them [sic].

Also that there was, I believe it was a gallon or a half gallon of Jack Daniels in the vehicle itself.

The officer related to me that the investigating officer had felt that there had been drinking involved based upon the strong odor of intoxicants emanating from the mouth of Mr. Sloan.

And based upon those representations, I issued a warrant for the search and drawing of his blood.

At the suppression hearing, the affiant officer also testified regarding his recollections of what he had orally stated to the magistrate when he presented the application for the warrant. The officer testified that he had told the magistrate that there had been evidence of the smell of intoxicants and slurred speech. In pertinent part, the officer stated:

Q. Tell us what you remember.

A. The Judge swore me in; asked me did the subject appear to have a strong odor of intoxicants, slurred speech, and that’s all I can recall. Those are the two questions I can recall.

Q. How did you answer those questions?

A. Yes, he did. I answered yes—affirmative to both questions.

Q. So you told the Judge that there was evidence of the smell of intoxicants and slurred speech?

A. Yes, sir.

The Court of Appeals continued:

The trial court noted that the procedure used in this case, where the warrant was issued after the magistrate read the affidavit and questioned the officer, under oath, followed by the trial court’s taking testimony of the magistrate, was not ideal. However, the trial court denied defendant’s motion to suppress the blood test results. [206 Mich App 486.]

The Court of Appeals reversed, holding that the trial court "was not justified in relying on the magistrate’s after-the-fact testimony regarding off-the-record statements in reaching the conclusion that the factual basis for the warrant was sufficient.” 206 Mich App 487. The Court concluded that the affidavit failed to establish probable cause, and consequently, that the search warrant was invalid and that the blood test results should have been excluded.

This Court granted the prosecutor leave to appeal. 448 Mich 851 (1995). We now affirm the Court of Appeals decision.

II. SUFFICIENCY OF AFFIDAVIT

The Michigan Constitution provides that a search warrant¹ may issue only on a showing of probable cause, supported by oath or affirmation.

The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. [Const 1963, art 1, § 11.]

Implementing this constitutional mandate, MCL 780.651(1); MSA 28.1259(1)(1) and MCL 780.653; MSA 28.1259(3) require that probable cause be shown in the form of an affidavit presented to a magistrate who will decide whether to issue a warrant on the basis of the affidavit’s contents.

When an affidavit is made on oath to a magistrate authorized to issue warrants in criminal cases, and the affidavit establishes grounds for issuing a warrant pursuant to this act, the magistrate, if he or she is satisfied that there is probable cause for the search, shall issue a warrant to search the house, building, or other location or place where the property or thing to be searched for and seized is situated. [MCL 780.651(1); MSA 28.1259(1)(1) (emphasis added).]

The magistrate’s findings of reasonable or probable cause shall be based on all the facts related within the affidavit made before him or her.[²] [MCL 780.653; MSA 28.1259(3) (emphasis added).]

When reviewing courts assess a magistrate’s conclusion that probable cause to search existed, such courts apply the standard of review set forth in People v Russo, 439 Mich 584; 487 NW2d 698 (1992). The standard instructs reviewing courts that "a search warrant and the underlying affidavit are to be read in a common-sense and realistic manner.” Id. at 604. Reviewing courts must also pay deference to a magistrate’s determination that probable cause existed. This deference "requires the reviewing court to ask only whether a reasonably cautious person could have concluded that there was a 'substantial basis’ for the finding of probable cause.” Id. at 603, quoting Illinois v Gates, 462 US 213, 236; 103 S Ct 2317; 76 L Ed 2d 527 (1983).

When reviewing courts apply the standard from Russo, they must specifically focus on facts and circumstances that support the magistrate’s probable cause determination. Reviewing courts may consider only those facts that were presented to the magistrate. Aguilar v Texas, 378 US 108, 112; 84 S Ct 1509; 12 L Ed 2d 723 (1964). Moreover, reviewing courts must ensure that the magistrate’s decision is based on actual facts—not merely the conclusions of the affiant. One of the main purposes of the warrant application procedure is to have a neutral and detached magistrate determine whether probable cause exists. This purpose cannot be achieved if the magistrate simply adopts unsupported conclusions of the affiant. Accordingly, at a minimum, a sufficient affidavit must present facts and circumstances on which a magistrate can rely to make an independent probable cause determination.

These concepts are well established throughout Michigan case law. In People v Effelberg, 220 Mich 528, 531; 190 NW 727 (1922), we explained:

It was not for [the affiant] but for the magistrate to determine whether there was probable cause to justify issuing the search warrant. His statements are Ins conclusions and have no moré force than if expressly stated, on information and belief. Affiant should have stated to the magistrate on oath or affirmation the facts and circumstances, if any were known to him, which induced the beliefs and the conclusions stated.

Similarly, in People v Rosborough, 387 Mich 183, 199; 195 NW2d 255 (1972), we emphasized:

"The affidavit must contain facts within the knowledge of the affiant, as distinguished from mere conclusions or belief. An affidavit made on information and belief is not sufficient. The affidavit should clearly set forth the facts and circumstances within the knowledge of the person making it, which constitute the grounds of the application. The facts should be stated by distinct averments, and must be such as in law would make out a cause of complaint. It is not for the affiant to draw his own inferences. He must state matters which justify the drawing of them.” [Quoting 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 868, p 1129. (Emphasis in original.) Accord People v Sherbine, 421 Mich 502, 511, n 16; 364 NW2d 658 (1984); People v Warner, 221 Mich 657, 659; 192 NW 566 (1923); People v Knopka, 220 Mich 540, 544; 190 NW 731 (1922); People v Landt, 188 Mich App 234, 241; 469 NW2d 37 (1991), rev’d on other grounds 439 Mich 870; 475 NW2d 825 (1991); People v Zoder, 15 Mich App 118; 166 NW2d 289 (1968).][³]

In Zoder, the Court of Appeals explained that a magistrate abdicates his judicial function regarding search warrants when he only accepts the affiant’s conclusory statements:

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 underlying circumstances the magistrate must accept the inferences drawn by the affiant rather than make his own independent evaluation. [Zoder at 121.]

When presented with affidavits that wholly consist of the affiants unjustified assertions or inferences, Michigan reviewing courts have consistently held that the affidavit is fatally deficient because it could not provide any basis to support a magistrate’s conclusion that there was probable cause to search. See Sherbine, Rosborough, Knopka, Effelberg, Landt, and Zoder.

Applying these principles to the instant affidavit, we find that the affidavit plainly failed to provide any basis to sustain a „ conclusion that probable cause existed. The affidavit states: "appears Robert Leonard Sloan under influence of intoxicating liquor . . . .” We consider this statement to be a mere conclusion or opinion of the affiant. The affidavit does not include any facts to support this conclusion or opinion. Without such facts, it would be impossible for the magistrate to have independently concluded that there was probable cause to search.⁴ In sum, we hold that the affidavit failed to provide a substantial basis to support a conclusion that probable cause existed.⁵

III. SUPPLEMENTATION OF AFFIDAVIT WITH SWORN YET UNRECORDED TESTIMONY

The prosecutor argues that a substantial basis for the magistrate’s conclusion that probable cause existed can be identified when the affidavit is considered in conjunction with the affiant’s sworn, yet unrecorded, testimony that the affiant presented to the magistrate contemporaneously with the affidavit. Specifically, the prosecutor insists that the affiant’s sworn, yet unrecorded, testimony provides the facts and circumstances to support the conclusion in the affidavit that "Robert Leonard Sloan [appears] under influence of intoxicating liquor . . . .”

To evaluate the prosecutor’s argument we must first decide whether reviewing courts may rely on such sworn, yet unrecorded, oral statements when assessing a magistrate’s probable cause determination. As indicated, this is an issue of first impression for Michigan.⁶ We hold that when reviewing courts assess a magistrate’s probable cause determination, they may not consider sworn, yet unrecorded, oral testimony that, contemporaneous with an affidavit, is offered to the magistrate to show probable cause. Our primary reason for so holding is our belief that requiring reviewing courts to consider sworn, yet unrecorded, oral testimony would impose a significant and unnecessary burden on their ability to reliably assess whether the constitutional requirement for probable cause had been satisfied.

Requiring reviewing courts to consider sworn, yet unrecorded, oral testimony would exact a significant burden on such courts because of the evidentiary risks inherent in the procedure. If reviewing courts had to test probable cause determinations on the basis of sworn, yet unrecorded, oral testimony, such courts would be forced to regularly conduct supplemental hearings in order to develop a record of the sworn, yet unrecorded, oral testimony that was allegedly conveyed to the magistrate. The magistrate and the affiant would have to testify regarding their recollections of what was purportedly said at the time that the warrant was sought, and the magistrate would have to be able to explain which statements he relied on to determine that probable cause existed. What is problematic about this procedure is that, with the passage of time, the memories of the affiant and the magistrate may become faded and confused. Given those types of risks, the possibility for intentionally untruthful recollections also arises.

We find that the constitutional probable cause requirement is simply too important to be subjected to such evidentiary hazards—particularly when such hazards easily could be avoided by a requirement that any additional needed facts be incorporated into an affidavit.⁷ In this regard, we agree with the view expressed by Justices Brennan and Marshall of the United States Supreme Court when they highlighted the difficulties inherent in a procedure that allows probable cause determinations to be based on sworn, yet unrecorded, oral testimony:

The substantive right created by the requirement of probable cause is hardly accorded full sweep without an effective procedural means of assuring meaningful review of a determination by the issuing magistrate of the existence of probable cause. Reliance on a record prepared after the fact involves a hazard of impairment of that right. It is for this reason that some States have imposed the requirement of a contemporaneous record. . . .

"It is an anomaly in judicial procedure to attempt to review the judicial act of a magistrate issuing a search warrant upon a record made up wholly or partially by oral testimony taken in the reviewing court long after the search warrant was issued. Judicial action must be reviewed upon the record made at or before the time that the judicial act was performed. The validity of judicial action cannot be made to depend upon the facts recalled by fallible human memory at a time somewhat removed from that when the judicial determination was made. This record of the facts presented to the magistrate need take no particular form. The record may consist of the sworn complaint, of affidavits, or of sworn testimony taken in shorthand and later filed .... The essential thing is that proof be reduced to permanent form and made a part of the record which may be transmitted to the reviewing court.” [Christofferson v Washington, 393 US 1090, 1090-1091; 89 S Ct 855; 23 L Ed 2d 234 (1969) (Brennan, J., dissenting from the Court’s denial of certiorari), quoting Glodowski v State, 196 Wis 265, 271-272; 220 NW 227 (1928).]

The evidentiary problems that arise when reviewing courts have to rely on testimony after the fact concerning statements off the record about facts allegedly showing probable cause are different in kind from any evidentiary problems that may arise in connection with the supplementation procedure we sanctioned in People v Mitchell, 428 Mich 364; 408 NW2d 798 (1987). In Mitchell, the affiant had not signed the affidavit, and while finding that this error made the search warrant presumably invalid, we decided to allow a supplemental hearing at which a magistrate could testify regarding whether the affiant had taken an oath when the affidavit was presented. The basic difference between the supplemental hearing authorized in Mitchell with the type of supplemental hearing that occurred in this case lies in the nature of the testimony sought to be developed during the hearings.

Specifically, the type of testimony sought in the Mitchell situation is much less complicated than the type of testimony sought in hearings concerned with oral statements about facts and circumstances offered to show probable cause. Clearly, the risk of faded or confused memories is slight when the sole inquiry at the hearing is whether an affidavit was presented under oath. In contrast, the risk of faded or confused memories is much greater when the inquiries at the hearing consist of the development of numerous facts and circumstances needed to establish that probable cause to search existed at the time that the warrant was sought. In addition, the testimony sought in the latter hearing would be used to supplement the content of the affidavit, and would be used to verify the basis of the probable cause determination, thereby making the risk of flawed memories in that context all the more significant. Because of the significant evidentiary problems, we will not approve using a Mitchell-type remand to rehabilitate an affidavit that is deficient because it fails to include sufficient facts and circumstances evidencing probable cause.

The present case illustrates the dangers inherent in allowing a magistrate to base his determinations of probable cause on oral statements not embodied in the affidavit. When the magistrate’s testimony from the supplemental hearing is compared with the officer’s .testimony from the same hearing, a discrepancy emerges regarding whether the officer told the magistrate that the defendant was actually slurring his speech. The officer twice acknowledged that he had "told the Judge that there was evidence of the smell of intoxicants and slurred speech.” However, a fair reading of the magistrate’s testimony indicates that the defendant’s injuries from the accident rendered him physically unable to talk. The magistrate testified at the hearing: "As I recall, he was in a condition that he was not able to speak.”

Further confusion exists concerning the magistrate’s reference at the hearing to evidence of a bottle of Jack Daniels being present in the defendant’s vehicle at the time of the accident. The magistrate testified that his probable cause determination was based in part on the affiant’s oral representation that there was "a gallon or half gallon of Jack Daniels in the vehicle itself.” The problem with this portion of the magistrate’s testimony is that the first time that evidence of a bottle of Jack Daniels was discussed was at the preliminary hearing that occurred after the magistrate issued the warrant and in front of the same magistrate who issued the warrant. These inconsistencies in the brief testimony taken at the instant hearing demonstrate the very real burden reviewing courts would have to face in order to reliably assess a probable cause determination that is based on sworn, yet unrecorded, statements.

We regard as significant the fact that these evidentiary hazards easily could be averted if reviewing courts were limited to the permanent record of sworn evidence presented to a magistrate at the time that the warrant is requested. If a magistrate determines that an affidavit is insufficient to establish probable cause, the magistrate is free to probe the affiant concerning additional facts that might show that probable cause exists. We want to make clear that we encourage such conscientious and thorough investigations on the part of a magistrate. However, in order to ensure that a reviewing court will have a trustworthy basis to assess whether the additional facts establish probable cause, we hold that any additional facts relied on to find probable cause must be incorporated into an affidavit. Stated otherwise, the additional facts must be presented under oath and must be recorded.⁸ The recording may take various forms, including handwritten notes, video- or audiotapes, or formal or informal transcripts of testimony.^{8 9}

What is critical is that the additional information be presented under oath and simultaneously made a permanent part of the record. When these steps are taken, reviewing «courts will have the ability to meaningfully assess the probable cause determination and without the needless risk of confused or faded memories coming into play. We further note that having a permanent and sworn record of the submitted evidence will facilitate the magistrate’s preliminary inquiry regarding whether probable cause existed. Relying on such a record, a magistrate could better "judge for himself the persuasiveness of the precise facts relied on to show probable cause . . . .” United States v Anderson, 453 F2d 174, 177 (CA 9, 1971).

A requirement that additional information be incorporated into the affidavit would cause only minimal inconvenience for the magistrate and the affiant. While time may be of the essence in many warrant situations, we believe that there would always be enough time to correct and enlarge an affidavit with needed additional facts. As mentioned, handwritten notes made on the face of the affidavit and attested by the affiant would be a satisfactory method of incorporation. Because of the ease with which the incorporation could be accomplished, we conclude that the evidentiary hazards associated with sworn, yet unrecorded, statements are completely unnecessary and can be effectively avoided in the search warrant context.

In contrast to the minimal inconvenience associated with an incorporation into the affidavit procedure, a procedure under which probable cause determinations could be based on sworn, yet unrecorded, oral testimony would result in greater hardships and further problems. For example, the latter procedure would put a significant strain on judicial resources: more than likely, every time an affidavit failed to set forth adequate facts and circumstances to establish probable cause, reviewing courts would have to hold supplemental hearings to determine whether any oral testimony relied on by the magistrate was sufficient to show probable cause. Moreover, allowing sworn, yet unrecorded, oral testimony to rehabilitate a deficient affidavit would undermine Michigan’s firmly established affidavit requirement for warrants. That subversion in turn would encourage sloppy police work when it came to gathering facts and circumstances to show probable cause to search. To avoid these types of undesirable results, we disavow procedures that would allow reviewing courts to rely on sworn, yet unrecorded, oral statements to assess a magistrate’s probable cause determination.

Our position regarding sworn, yet unrecorded, oral testimony allegedly showing probable cause finds support in the approach taken by federal courts asked to review the validity of federal search warrants¹⁰ in light of the Fourth Amendment and FR Crim P 41(c). The Fourth Amendment is similar to the Michigan Constitution’s search and seizure provision¹¹ insofar as both mandate that warrants issue only on a showing of probable cause based on oath or affirmation. In pertinent part, the Fourth Amendment provides:

[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [US Const, Am IV.]

Before 1972, FR Crim P 41(c) was similar to MCL 780.653; MSA 28.1259(3),¹² in that both required an affidavit showing the facts and circumstances to support a probable cause determination. Specifically, FR Crim P 41(c) provided:

A warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant. If the judge or commissioner is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant .... [FR Crim P 41(c) (emphasis added).]

When federal courts assessed the validity of a search warrant in light of these particular federal requirements, the majority consistently supported the view that "all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath.” United States v Anderson at 175. Accord United States v Williams, 977 F2d 866 (CA 4, 1992), United States v Massey, 687 F2d 1348 (CA 10, 1982), United States v Hatcher, 473 F2d 321 (CA 6, 1973), United States v Sterling, 369 F2d 799 (CA 3, 1966), Rosencranz v United States, 356 F2d 310 (CA 1, 1966), and United States v Freeman, 358 F2d 459 (CA 2, 1966).¹³

Our approach to sworn, yet unrecorded, testimony in connection with search warrants finds further support in the amended post-1972 version of FR Crim P 41(c). In addition to the pre-1972 affidavit requirement, amended rule 41(c) now mandates that the following procedure be adhered to when oral statements are presented:

Before ruling on a request for a warrant the [judicial officer] may require the affiant to appear personally and may examine under oath the affiant . . ., provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. [FR Crim P 41(c)(1) (emphasis added).][¹⁴]

We acknowledge that when federal courts have been asked to review the validity of state search warrants¹⁵ under federal constitutional law, the majority has allowed probable cause determinations to be based on sworn, yet unrecorded, oral testimony presented to the magistrate at the time that the warrant was sought. See, i.e., United States v Clyburn, 24 F3d 613 (CA 4, 1994), United States v Shields, 978 F2d 943 (CA 6, 1992), United States ex rel Gaugler v Brierley, 477 F2d 516 (CA 3, 1973), Frazier v Roberts, 441 F2d 1224 (CA 8, 1971), and Sherrick v Eyman, 389 F2d 648 (CA 9, 1968). In such cases, the criteria governing the legality of the state warrant was limited to the Fourth Amendment.¹⁶ The standard reason employed by these courts to support a reliance on sworn, yet unrecorded, oral statements was that the literal language of the Fourth Amendment does not require that the basis for probable cause be established in a writing. Significantly, however, when federal courts applied ..that reasoning they also consistently indicated that the far more preferable procedure for securing search warrants is to present written affidavits. See Clyburn at 618, United States v Lynch, 699 F2d 839 (CA 7, 1983), United States ex rel Gaugler at 519, Frazier at 1229, and Sherrick at 653.

. The preferable procedure is easily accomplished in Michigan because of the well-settled practice of requiring that probable cause be demonstrated in an affidavit. See MCL 780.651(1); MSA 28.1259(1)(1) and MCL 780.653; MSA 28.1259(3). This Court has recognized that the purpose of Michigan’s affidavit requirement is "to provide for review of the magistrate’s determination of probable cause.” Knopka at 543. To guarantee the most meaningful review possible under Michigan’s particular warrant procedure, we are persuaded that a reviewing court’s assessment of the magistrate’s probablé cause determination should be limited to the facts and circumstances set forth in the affidavit.

Having determined that the affidavit failed to set forth facts and circumstances to justify a finding of probable cause, and having also decided that reviewing courts may not consider sworn, yet unrecorded, oral testimony presented to a magistrate when assessing the magistrate’s probable cause determination, we conclude that probable cause for the issuance of the instant search warrant has not been established under MCL 780.653; MSA 28.1259(3).¹⁷

In Sherbine, we held that evidence obtained specifically in violation of MCL 780.653; MSA 28.1259(3) must be excluded. The Legislature appears to have acquiesced in this particular construction of MCL 780.653; MSA 28.1259(3). While the Legislature subsequently amended MCL 780.653; MSA 28.1259(3) because it disagreed with portions of our statutory analysis provided in Sherbine, it is significant that the Legislature when instituting such amendments did not alter our holding that evidence obtained in violation of the statute must be excluded. To change the law in that regard would have been an easy and convenient task for the Legislature. Neither the language in the amendments, nor the legislative history pertinent to the amendments provide a basis for concluding that a sanction other than exclusion is appropriate for the violation of MCL 780.653; MSA 28.1259(3). Clearly, the Legislature shares our view that no remedy other than exclusion is as likely to assure the full enforcement of all the requirements under MCL 780.653; MSA 28.1259(3)—a statute specifically designed by the Legislature to implement the constitutional mandate for probable cause under Const 1963, art 1, § 11.¹⁸

Because the blood test result procured pursuant to the instant search warrant¹⁹ constitutes evidence obtained in violation of MCL 780.653; MSA 28.1259(3), we conclude that, it must be excluded.

The decision of the Court of Appeals is affirmed, and the case is remanded for proceedings in accordance with this opinion.

Brickley, C.J., and Levin and Mallett, JJ., concurred with Cavanagh, J.

1 As indicated, the general issue before the Court is probable cause determinations for search warrants. The dissent, in dicta, indicates that "a seizure of blood without a warrant incident to an arrest on probable cause” is permissible under the Fourth Amendment. Post at 188. We note that that description is an unduly narrow interpretation of what the United States Supreme Court has said on the subject. In Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966), the United States Supreme Court indicated that a defendant could be compelled against his will to have his blood tested for alcohol content only where three conditions had been met: (1) the defendant had been lawfully arrested before the taking of blood, (2) at the time the sample was taken there was a "clear indication” that the sample would disclose relevant evidence, and (3) exigent circumstances were shown to exist.

It does not appear that all these conditions were met in this case. The record indicates that the defendant was not arrested until after the blood was taken. The record before us does not confirm that there was probable cause to arrest or that there was a "clear indication” that relevant evidence would be obtained, and it would be improper for this Court to decide these issues without, at a minimum, further briefing from the parties. Finally, it would be difficult to convincingly argue that the officer in this case "might reasonably have believed he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence,” Schmerber, supra at 770, because the officer in fact pursued getting a warrant.

2 The remaining portion of MCL 780.653; MSA 28.1259(3) provides:

The affidavit may be based upon information supplied to the complainant by a named or unnamed person if the affidavit contains 1 of the following:

(a) If the person is named, affirmative allegations from which the magistrate may conclude that the person spoke with personal knowledge of the information.

(b) If the person is unnamed, affirmative allegations from which the magistrate may conclude that the person spoke with personal knowledge of the information and either that the unnamed person is credible or that the information is reliable.

3 Likewise, the United States Supreme Court has explicitly recognized that probable cause determinations must be based on facts and circumstances:

"Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough.” [Aguilar v Texas, supra at 112, quoting Nathanson v United States, 290 US 41, 47; 54 S Ct 11; 78 L Ed 159 (1933) (emphasis in original).]

4 We agree with the dissent that a police officer is a "presumptively reliable source,” post at 191, and that magistrates are entitled to give relatively more weight to information supplied by an officer as opposed to information supplied by a layperson. However, we differ with the dissent insofar as it effectively ignores the legal principle that, ultimately, search warrants may issue only upon a magistrate’s—not an officer’s—probable cause determination. If magistrates are to fulfill their judicial obligation to independently determine. that there is probable cause to search, the magistrates cannot give dispositive weight to an officer’s conclusory observation, or opinion. To reiterate, there must be facts or circumstances that provide a basis for magistrates to conclude that there is probable cause to search; mere affirmance of a conclusory observation is not enough.

The information related in the instant affidavit, combined with appropriate deference given because the affiant was an officer, simply failed to provide the magistrate with a factual basis for making an independent determination that probable cause existed. The information in the affidavit is no more illuminating than if the officer had said it “appears Robert Leonard Sloan to have been operating a motor vehicle while under the influence of intoxicating liquor causing a death pursuant to MCL 257.625(4); MSA 9.2325(4).” Por the same reason that that mere conclusion of criminal activity would need further facts and circumstances to enable a magistrate to independently find probable cause, the summary observations in the instant affidavit required further factual support. The deficiency in the instant affidavit is made plain by the fact that the magistrate felt compelled to make further inquiries regarding relevant facts and circumstances before making his probable cause determination. Contrary to the dissent’s contention, the magistrate obviously did not regard the orally related facts gained from these inquiries as "needless supporting details” (post at 202): the magistrate’s testimony at the supplemental hearing suggested that the magistrate relied on the orally related facts to find probable cause.

5 In addition to this deficiency, we note that the affidavit also violated MCL 780.653; MSA 28.1259(3) provisions regarding informants. See note 2. According to the record, the affiant received the information that he related in the affidavit from an officer who was present at the accident scene and who conveyed the information to the affiant through a radio transmission. Because the information in the affidavit was not based on the affiant’s personal knowledge, the affiant should have adhered to the requirements for informants set out in MCL 780.653(a) and (b); MSA 28.1259(3)(a) and (b). The affiant erred when he altogether omitted any indication in the affidavit that the information that he presented in the affidavit actually had been supplied by another person.

6 Contrary to the defendant’s contention, the precise issue here was not presented in People v Warner, supra. In Warner, we held that the affiant could not later supplement the affidavit with facts and circumstances that were known to the affiant but were not included within the affidavit. However, the factual summary in Warner did not disclose whether the additional facts and circumstances had been presented to the magistrate, and, if they were, the manner in which they were presented, i.e., sworn or unsworn, recorded or unrecorded.

7 We recognize that in a trial witnesses are asked to recall prior statements all the time when testifying and, thus, the risk for imprecise memories exists in that context as well. However, the search warrant situation is different, in that the magistrate or affiant has a realistic opportunity to memorialize statements in a sworn recording at the time the statements are first made. Hence, the risk of inaccurate memories in the search warrant situation does not have to exist and could be eliminated. See discussion below at 175-177.

8 An affidavit is defined as: "A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Black’s Law Dictionary (6th ed), p 58.

9 For example, this Court commends the procedure used in Naples v Maxwell, 271 F Supp 850 (SD Ohio, 1967), rev’d on other grounds 393 F2d 615 (CA 6, 1968), in which the magistrate, after eliciting additional necessary information from the requesting officer by oral testimony, appended the transcript of testimony regarding the affidavit before its execution on oath by the officer.

10 By "federal search warrants,” we mean to refer to warrants issued on the request of a federal law enforcement officer or an attorney for the government. See FR Crim P 41(a).

11 Const 1963, art 1, § 11. For the text of the provision, see ante at 167.

12 For the text of MCL 780.653; MSA 28.1259(3) see ante at 167-168.

13 Contra United States v Hill, 500 F2d 315 (CA 5, 1974), United States v Beasley, 485 F2d 60 (CA 10, 1973), and United States v Marihart, 472 F2d 809 (CA 8, 1972). See also anno: Federal court determination of probable cause for search warrant: Consideration of oral testimony which was, in addition to affidavit, before officer who issued warrant, 24 ALR Fed 107.

14 The amended rule is designed "to insure an adequate basis for determining the sufficiency of the evidentiary grounds for the issuance of the search warrant if that question should later arise.” Notes of Advisory Committee on 1972 Amendment to Rule 41.

15 By "state search warrants” we mean to refer to warrants requested by a nonfederal officer.

16 The Fourth Amendment, not federal rules or state law, governs the admissibility of evidence obtained by state officers, but ultimately used in a federal proceeding. Clyburn at 616, Shields at 945, United States ex rel Gaugler at 520, 523, and Frazier at 1228, n 6.

17 Having determined that probable cause was not established under MCL 780.653; MSA 28.1259(3), we need not decide whether the magistrate’s probable cause determination was constitutionally defective under Const 1963, art 1, § 11.

We also point out that, contrary to the implicit suggestion in part h(a) of the dissenting opinion, Michigan’s search warrant statutes do demonstrate that the Legislature has imposed some requirements for search warrant applications beyond those that are constitutionally required—in particular, a requirement that a "magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him or her.” MCL 780.653; MSA 28.1259(3). Neither Const 1963, art 1, § 11, nor the Fourth Amendment, require that probable cause be established in an affidavit. Nonetheless, the affidavit requirement represents a well-established and beneficial practice under Michigan law. To permit magistrates to make probable cause determinations on the basis of sworn, yet unrecorded, oral testimony would essentially render the affidavit requirement meaningless. Moreover, and as indicated above, allowing magistrates to engage in such a practice would make it very difficult for reviewing courts to assess a magistrate’s probable cause determination in a manner that is reliable.

18 Hence, the exclusion sanction does "serve[] a valid and useful purpose.” (" 'Before we penalize police error, ... we must consider whether the sanction serves a valid and useful purpose.’ ” Post at 200.) Moreover, excluding evidence obtained in violation of a statute is not a new phenomenon under Michigan law. See McNitt v Citco Drilling Co, 397 Mich 384, 393; 245 NW2d 18 (1976), People v Dixon, 392 Mich 691; 222 NW2d 749 (1974), and People v Weaver, 74 Mich App 53; 253 NW2d 359 (1977).

19 The record before us suggests that there may have been two blood tests conducted on the defendant, the first test showing a blood alcohol content of 0.30, and a second, later test showing a blood alcohol content of 0.19. If either test was conducted only "for medical treatment," the result from that test may be admissible provided all other requirements under MCL 257.625a(6)(e); MSA 9.2325(1)(6)(e) can be satisfied.