People v. Tejeda

449 N.W.2d 908, 181 Mich. App. 450

• Court: Michigan Court of Appeals
• Decided: December 18, 1989
• Docket: Docket 104184
• Status: Published

Opinions

Sawyer, J.

Defendant was convicted, following a jury trial, of possession of more than 50 grams, but less than 225 grams, of cocaine. MCL 333.7403(1) and (2)(a)(iii); MSA 14.15(7403)(1) and (2)(a)(iii). On the basis of a prior conviction for delivery of heroin in 1975, defendant was also charged as a habitual controlled-substance offender under MCL 333.7413(2); MSA 14.15(7413)(2). Defendant was convicted as a habitual offender following a bench trial. Thereafter, he was sentenced to a prison term of twenty to forty years. He now appeals and we reverse.

The circumstances giving rise to defendant’s conviction began in Miami, Florida. Detective Edward Pijuan of the Metropolitan Dade Police Department in Miami testified that, on March 16, 1987, he received a telephone call from an employee of the United Parcel Service who told Pijuan that he had discovered some contraband that was being shipped. Pijuan went to the ups office where he was presented with an opened package that contained approximately 154 grams of cocaine. The package was addressed to Douglas Raymond in Holland, Michigan. After Pijuan contacted Detective Sergeant Robert Simmons of the Holland Police Department, it was agreed that Pijuan would send the package to Simmons by Federal Express.

Simmons testified that he received the package via Federal Express on March 17, 1987. Simmons conducted a test which verified that the substance contained in the package was cocaine. He weighed the cocaine at 153 grams. Simmons then contacted Detective First Lieutenant Robert J. Bertee of the Michigan State Police. Bertee was in charge of the West Michigan Drug Enforcement Team (wemet). Simmons and Bertee, together with Detective Lieutenant Wesley Haney of wemet, arranged a controlled delivery of the package to Raymond through the aid of ups. Specifically, Haney dressed as a ups employee and delivered the package to Raymond.

After the package was delivered to Raymond, a search warrant was obtained for Raymond’s residence. Simmons, Bertee, Haney, and a number of other officers executed the warrant. A search of the premises revealed the ups package behind a stereo and Raymond was arrested. He was told that he could face a possible twenty to forty years in prison and it was at that time that Raymond told Bertee that the package did not belong to him and that he was only the middleman. According to Raymond, he told the officers that the package belonged to defendant.

Among those present during the search was an assistant prosecuting attorney who consulted with Bertee and reached an agreement with Raymond whereby Raymond would receive a more lenient sentence if he would agree to cooperate in a controlled delivery of the package to defendant. Raymond made arrangements to deliver the package. Raymond also testified that he had made similar deliveries twice in the past.

Simmons testified that he was instructed to return to the police department and prepare a Beavers¹ warrant. The Beavers warrant was obtained for the purpose of putting a wire on Raymond to monitor his conversation with defendant.

The Beavers warrant was obtained, Raymond was wired, and he made the delivery of the package to defendant. Bertee then radioed Simmons, who was waiting at the magistrate’s office, informing Simmons of the delivery. Simmons then obtained another warrant from the magistrate for a search of defendant’s store, where the delivery had taken place. Simmons then brought the warrant to the officers, who had previously entered the store and placed defendant under arrest. A search of the premises was conducted and the cocaine was then discovered in the store.

Defendant raises a number of issues on appeal, one of which is dispositive. Specifically, defendant argues that the Beavers warrant and the search warrant for his store were not based upon valid affidavits in that the affidavits contained hearsay and did not meet the requirements of MCL 780.653; MSA 28.1259(3). We agree.

Although a search warrant may be issued on the basis of an affidavit which contains hearsay, MCL 780.653; MSA 28.1259(3) imposes certain requirements on what the affidavit must contain in order for a valid warrant to be issued on the basis of that affidavit. People v Sherbine, 421 Mich 502; 364 NW2d 658 (1984). Specifically, an affidavit based on hearsay must meet three requirements: (1) the affidavit, when based on informant-supplied information, must contain affirmative allegations that the informant spoke with personal knowledge; (2) the affidavit must set forth facts from which one may conclude that the informant is credible; and (3) the information must be shown to be reliable. Id. at 509-510.

The affidavit for the Beavers warrant averred as follows:

That on March 17, 1987, affiant received a package from Det. E Pijuan of the Metro Dade Police Department, Miami Florida. Det Pijuan had called affiant on March 16, 1987, and informed affiant that the package had been originally turned over to him by United Parcel Service after they (ups) had opened it and descovered [sic] what they (ups) believed to be cocaine. Det Pijuan then tested the substance and indicated to affiant it was cocaine. Det Pijuan then sent the package to affiant via Federal Express. The original package had been addressed to Doug Raymond at 280 East 11th Street, Holland, Michigan 49423. Det Pijuan repacked the original package in another container before sending it to affiant. When affiant received the package he field tested it and it proved positive for cocaine. Affiant then repackaged the cocaine as close as possible to the original container and had it delivered by Wes Haney, a msp undercover officer dressed as a ups delivery man to the address of 280 East 11th Street, Holland, Michigan. Once the package was delivered and received by someone identifying themselves as Doug Raymond a search warrant was obtained and executed on the house located at 280 East 11th Street, Holland, Michigan. The package was found in the house and Doug Raymond admitted knowing it was cocaine. He further indicated to affiant that he was just a middle man [sic] and the ultimate delivery was to be to Thomas Tejeda. Doug Raymond further told affiant that as soon as he received the package he was to call Thomas Tejeda and deliver the package with cocaine to Tejeda as he had done twice before at the Book Store on 14th and College. Doug Raymond called Thomas Tejeda, reached his answering recorder and said he would meet Tejeda at the bookstore on 14th and College. Raymond further stated that if things went as usual he would get his cut of cocaine at that time. Thomas Tejeda has been convicted of sale or delivery of drugs previously. Doug Raymond told the answering recorder he would meet Thomas Tejeda at 2:30 p.m. at the Bookstore. Affiant has weighed the cocaine and the amount is over 140 grams.

The affidavit for the bookstore warrant contained the same information as the Beavers warrant with the addition of the following:

Affiant received information that Thomas Tejeda did receive the package and cocaine at the Bookstore located at 335 College Avenue, Holland Michigan. This information was obtained by Lt. Bertee of wemet by listening to the conversation of Raymond and Tejeda on a transmitter on Raymond via a search warrant earlier obtained. The conversation was relayed to affiant by Lt. Bertee, with Bertee indicating the cocaine was received by Tejeda at 335 College Ave Holland.

We do not believe that these affidavits meet the requirements of Sherbine. First, nothing in the affidavits establishes the credibility of Douglas Raymond. Indeed, as in Sherbine, the affidavits do not even contain a conclusory statement that Raymond is a credible person, which would not even by itself be sufficient to establish his credibility. See Sherbine, supra at 511.

Moreover, the third requirement of Sherbine, that the information be shown to be reliable, is also not met here. Nothing in the Beavers warrant affidavit establishes that defendant was to be the ultimate recipient of the drugs other than Raymond’s own statement. Indeed, the affidavit doesn’t even show that Raymond talked with defendant to set up the meeting at which the drugs were delivered. Rather, it only indicates that Raymond left a message on defendant’s answering machine indicating that he would meet defendant at defendant’s bookstore for some unspecified purpose. The bookstore warrant does contain the additional information that Raymond did deliver the cocaine to defendant, but that information was based upon what was learned by listening to the conversation between Raymond and defendant on the transmitter attached to Raymond pursuant to the Beavers warrant. Thus, if the Beavers warrant was invalid, the information learned from listening to the conversation cannot be used to support the issuance of the bookstore warrant.

The trial court reasoned that Raymond’s knowledge of the contents of the package, wemet’s knowledge of the contents of the package, and defendant’s prior conviction for delivery of drugs were sufficient to give reliability and credibility to Raymond’s statement. We disagree. That Raymond knew what was in the package does not establish that defendant was involved in the drug transaction. In fact, what it does establish is that Raymond had a reason to tell the police that the package really belonged to someone other than himself. We would find it more persuasive that Raymond had attempted to disavow ownership of the package if he did not know what was in the package. As for wemet’s knowledge that the package contained cocaine, while it establishes that contraband was involved, it does little to establish defendant’s involvement in the transaction. As for defendant’s prior conviction for delivery of a controlled substance, that twelve-year-old conviction does little to support the belief that the suspect is currently engaged in illegal narcotics trafficking. See People v Gleason, 122 Mich App 482, 492; 333 NW2d 85 (1983) (evidence of a purchase of marijuana two months prior was stale information and worthless as a basis for obtaining a warrant).

In sum, the affidavits in the case at bar did little more than show that the police had a strong case against Raymond and that Raymond was willing to implicate defendant. The affidavits do little to establish the credibility of either the information or Raymond, a man who had every incentive to "cooperate” with the authorities and implicate someone else in the transaction. For these reasons, we conclude that the Sherbine requirements were not met in the Beavers affidavit and, therefore, the Beavers warrant should never have issued. While the bookstore affidavit had a somewhat stronger basis for establishing probable cause to issue a warrant, the additional information in that affidavit was obtained pursuant to the Beavers warrant and, therefore, must be disregarded. Accordingly, we must conclude that the bookstore affidavit also failed to meet the Sherbine requirements and, therefore, the bookstore warrant should also never have issued. Accordingly, we conclude that the trial court erred in not suppressing the evidence seized pursuant to those warrants.²

Before concluding, we should also briefly address the people’s argument that the warrants should be upheld because they were also based upon independent police investigation and not just the information supplied by Raymond. While plaintiff claims that Raymond’s statements were confirmed by independent investigation, nothing in the affidavits suggests that this is true. The only statement confirmed by independent investigation was that of the Florida ups employee who telephoned the local police to inform them that he had found a package of contraband. The police investigated and confirmed that the package contained cocaine and was addressed to Raymond. No independent police investigation supported any of the facts given by Raymond other than, perhaps, that Raymond was aware that the package contained cocaine. However, as discussed above, Raymond’s knowledge of the contents of the package does not help the people’s case. Since there was no independent verification of Raymond’s statements concerning defendant’s involvement, the warrants cannot be upheld on that basis.

For the above reasons, we conclude that the Beavers warrant and the search warrant for the bookstore were improperly issued and, therefore, the searches were illegal. Accordingly, the evidence obtained as a result of those invalid warrants must be suppressed. Sherbine, supra.

We should briefly address the issues raised in the dissent. With respect to parts i and n of the dissent, while our dissenting colleague may be correct in his analysis, that analysis is irrelevant since we do not base our decision on any constitutional claim raised by defendant. Rather, our decision is premised solely on a failure to meet the requirements of MCL 780.653; MSA 28.1259(3) and Sherbine, supra. As for the dissent’s inquiry into whether an exclusionary rule exists under the statute, the Supreme Court answered that question in Sherbine by suppressing the evidence on the basis of a violation of the statute. The Court clearly indicated that its conclusion was "mandated by the statute” and that the "statutory violation here is clear” and that "the evidence must therefore be suppressed.” Sherbine, supra at 505-506, 512.

As for the dissent’s conclusion that the amendment to the statute contained in 1988 PA 80 validates the searches at issue (which, it should be noted, the prosecutor does not argue), our dissenting colleague’s analysis is flawed. Assuming, without deciding, that the dissent is correct that the purpose of the amendment was to overturn Sherbine, at least in part, and that the warrants at issue in this case would be valid under the amended statute, it would not be proper to apply the amendment retroactively. While the dissent correctly points out that a statute which is remedial or procedural in nature may be applied retroactively, that is an exception to the general rule that statutes are to be applied prospectively only unless a contrary intent is expressed by the Legislature. People v Bates, 175 Mich App 490, 492; 438 NW2d 298 (1989); see also Hansen-Snyder Co v General Motors Corp, 371 Mich 480, 484-485; 124 NW2d 286 (1963). However, for the remedial-procedural exception to apply, the statute must operate in furtherance of a mode of procedure or a remedy or confirmation of already existing rights and may not create new rights nor destroy, enlarge or diminish existing rights. Hansen-Snyder, supra at 484-485; Bates, supra at 492-493.

In the case at bar, the 1988 amendment to the statute does not come within the remedial-procedural category. It does not merely affect the procedures employed by the courts nor does it further an existing remedy. It does, however, affect existing rights. The statute serves to supplement the constitutional protections against unreasonable searches and seizures, in particular those conducted pursuant to a warrant issued on information supplied by an informant. See Sherbine, supra at 508. Thus, the statutory amendment does affect existing rights and, therefore, may not be applied retroactively.

As for defendant’s remaining issues, since we have concluded that the searches were illegal and the evidence, specifically the cocaine, must be suppressed, retrial is impossible. Accordingly, we need not address those additional issues.

Defendant’s conviction is reversed and his sentence vacated and defendant shall be discharged from custody.

Holbrook, Jr., P.J., concurred.

1 People v Beavers, 393 Mich 554; 227 NW2d 511 (1975).

2 We note there is also involved an additional question of the fact that the affidavits at issue were not simply based upon hearsay, but double hearsay. Much of the information in the affidavits, which were signed by Simmons, was information Simmons had received from Bertee, who had received the information from either Raymond or from Raymond’s conversation with defendant. However, we need not involve ourselves with determining whether the second level of hearsay renders the warrants invalid since they do not survive an analysis at the first level of hearsay.