*1 PEOPLE BRAKE 18, 1994, May Docket No. 160075. Submitted at Detroit. Decided 29, 1994, December at 9:25 a.m. pleaded Court, guilty H. John Brake the Oakland Circuit Andrews, J., N. Steven of 50 or more but less than grams containing possession of mixture cocaine and with marijuana, right reserving appéal intent to deliver rulings concerning pretrial court’s The motions. defendant was prison twenty years sentenced to terms of ten to and one to years respectively. suppress four The defendant had moved to during seized the search of his residence on the basis hearing that the search warrant was defective. The suppress express package motion to established that an mail facility arrived at Detroit airmail without an address label postal employee facility it. A opened on at airmail package addressee, concerning to look for information information, found no such that noticed the two boxes designed computer floppy to hold disks were contained in package postal powdery emitted a white substance. A inspector warrant, opened boxes, secured federal search eighty-six grams and found An cocaine. address label ad- Highland. post dressed to the defendant arrived at the officein Highland postmaster postal inspector The told the that a person purporting inquire to be John Brake had called to about him, package an that was to delivered be had given label, the same information that was found the loose telephone and had left a number he where could be reached. postal inspector postmaster The had the call the number, explain person phone to the who answered the found, person the label had been and ask the to describe the package. person contents of the described the -contents of being computer floppy two boxes of disks. The postal inspector sought a search the defendant’s drugs, records, drug paraphernalia, weapons, residence drug proceeds, stating he had cause to believe References 2d, 118, 123, Am Jur Searches Seizures 125. §§ See ALR Index Search under and Seizure. App 208 listed items were then arrangements deliver the made to and that been containing residence. the cocaine to defendant warrant, was delivered issued a search arrested, residence, the at his *2 defendant searched, yielding the evidence that the the was and residence appealed. sought suppress. to The defendant Appeals held: of Court original opening of question the the 1. the whether Because facility postal employee package by the was a the airmail right against searches the unreasonable
violation of defendant’s court, preserved upon by it not for was was not ruled trial appellate review. Michigan recognizes unnecessary 2. It is decide i.e., warrants, anticipatory before the warrants issued events occurred, probable necessary cause have because to establish already probable search the defendant’s connec- time issued. Because the existed at the the warrant was defendant, residence, the cocaine was tion his and between coupled by the address label with the established calls, necessary delivery was not actual defendant, package, the and between the establish nexus totality circumstances the defendant’s residence. request supporting war- for the described in the affidavit grounds gave to believe that the rant reasonable drug-related engaged illegal in activities and defendant was probable described was cause to believe there Therefore, at the residence. items would be found defendant’s defective, motion to was not and suppress properly denied. court in that the defendant 3. The trial did err compelling and reasons had failed to show substantial sentence; accordingly, mandatory departing from the minimum refusing its to deviate the court did not abuse discretion in mandatory from that minimum sentence. Affirmed. J., dissenting concurring part part, Wahls, and stated granted, suppress motion to should have been because rested on cause to search defendant’s residence residence, making to him at and, warrant, being anticipatory an warrant an warrant, it did not detail- the circum- it was invalid because could stances under which its execution occur. — — 1. Search Probable Cause. Searches and Seizures Warrants support an shows that an Where affidavit in of a search warrant People v Brake Opinion of the Court received, anticipates receiving, spe- identified individual has through particular location, cific contraband the mail at a there cause to believe that other contraband or evidence of the crime will be found at that location. — — 2. Searches and Seizures Search Warrants Probable Cause. magistrate, considering A whether there is a substantial basis warrant, totality for issuance of a search must examine the probability the circumstances to determine whether a fair specific exists that evidence of a crime will be found particular place. Kelley, Frank J. Thomas L. General, Attorney Casey, Thompson, Richard General, Solicitor Pros- Richards, Thomas S. ecuting Attorney, Assis- Prosecuting tant Attorney, people. for the Clyde Thomas, Pritchard & P.C. B. Pritchard (by Thomas), and Edith S. for the defendant. Reilly, P.J., Before: M. Wahls A. *3 Chrzanowski,* JJ.
Reilly, P.J. Defendant conditionally pleaded guilty, charged, more, of grams of grams, less than 225 of containing a mixture cocaine, 14.15(7401X2) 333.7401(2)(a)(iii); MCL MSA (a)(iii), possession with to intent deliver mari- 14.15(7401)(2)(c). juana, 333.7401(2)(c); MCL MSA right Defendant appeal pre- reserved to "the trial motions that have been in filed case which this Court has ruled on.” Defendant was sentenced to ten to twenty years imprisonment for the cocaine to conviction and one four years imprisonment the marijuana conviction. We affirm. in undisputed.
The facts this case are essentially 23, 1991, On an August express "2-pound mail placed Pak” was United States mail from a judge, sitting Appeals by assignment. * Circuit the Court of on Opinion of the Court post transit, Miami, Florida. In ad- office package. from the detached label became dress facility airmail arrived at the Detroit Michigan. label, Romulus, addressed to in defendant, Michigan. Highland, post office arrived at express Pietrzyk, mail coor- Andrew Romulus, the de- was informed about dinator in August Pietrzyk Mr. tached label. On opened if to determine the unidentified regarding any the addressee con- information any Pietrzyk find such infor- inside. did not tained computer floppy mation, the two but noticed powdery inside emitted a disk found white boxes Inspec- Pietrzyk. the Postal substance. contacted tion Service. postal inspector,
Gregg to Fiorina, went day inspect facility Romulus same package. Fiorina obtained a federal search war- pack- inspect open rant to age, contents plastic bags found hold three which was containing eighty-six approximately a total of grams of cocaine. Highland postmaster Ferrarra,
Rick person post purporting told Fiorina that a office telephoned Ferrarra be "John Brake” days inquiring express past package an about mail two to him. that was to have been delivered The caller described same label that on the and address information as number in the mail. The individual also label found loose gave he could number where Ferrarra be reached. *4 August 1991, Ferrarra advised Fiorina
On the he that number had Ferrarra called explained given the who to individual been and He that the label had been located. answered what the contained. asked individual People v Brake Opinion op the Court responded individual that con- of computer tained two boxes disks. floppy Later, on the same Fiorina day, sought search for defendant’s residence. The affidavit following stated that "the property constitutes evidence of criminal conduct” and "is located” at residence:1 and any illegally possessed
Cocaine other sub- stances; drug paraphernalia ing[,] processing, storage, packag- cutting, weighing
used for of any substance, weapons protec- controlled used for the of; proof tion residency, such as but not [sic] bills, to utility correspondences, limited receipts, money rent receipts, order to keys premises deposit boxes; illegal drug and safe pro- ceeds; any weapons illegal drugs. protections for the used [sic] Fiorina averred that probable he "has cause to believe that property above-listed to be searched for and is now seized located said premises, upon” described based the facts as de- scribed above. The affidavit also stated that Fior- ina made arrangements "has the package have delivered to pursuant its [defendant’s residence] mailing August instructions on 1991.” County magistrate Oakland issued suppress February We note that in defendant’s motion to filed 23, 1992, challenged veracity he statements affidavit property that the listed "is located” his residence because at the signed, time the affidavit the affiant was aware containing floppy discs cocaine had not been delivered. citing Delaware, Accordingly, 2647; Franks v 438 US 98 CtS (1978), argued L Ed 2d 667 the statements should be stricken ing portions the affidavit reviewed determine the remain supported cause. Defendant has not and, event, appeal, any raised this issue on we find no merit in the argument, specify because items described did not located,” package containing cocaine "is rather affiant cocaine, paraphernalia, weapons, cause to believe that forth, generally, and so would be found defendant’s residence. *5 233 208 Mich op Opinion the Court warrant for defendant’s search "probable day. stated same cause warrant having found,” defendant’s residence been property things identi- was to be searched for the affidavit. cal to that described on postal inspector, posing day, Later another express carrier, mail delivered the a letter A short to defendant at residence. residence, later, left time stopped, for and was arrested. search warrant executed. the residence was then original opening contends that Defendant by Pietrzyk without a probable cause and warrant was without search right of his Fourth Amendment was a violation against the trial searches. Because unreasonable aspect not this of defendant’s court did rule on suppress evidence, defen- motion to dant support and because presented argument any evidence or never suppression basis, on this this issue was plea. preserved guilty Peo- his conditional ple New, 482, 485; NW2d next
Defendant contends evidence obtained during the search of his residence should have suppressed was defec- been because warrant argues warrant tive. Defendant was an search "anticipatory warrant,” search because the deliv- warrant was obtained before controlled giving ery rise to cause occurred. Defen- Michigan recog- correctly dant notes that has not argues yet validity such nized warrants jurisdictions upheld war- that have that even rants of type, this warrant invalid would be explicit, provide the warrant failed because governing narrowly clear, and drawn conditions its execution. is one that is issued
An
Opinion of the Court
necessary
before the events
Garcia,
have occurred. United States v
882 F2d
(CA 1989).
anticipa-
cases which
tory
recognized,
warrants have been
courts have
presently
held that
the fact that
the evidence
place
not located at the
to be searched is immate-
*6
long
probable
rial as
as there is
cause to believe
the evidence will be there when the warrant
However,
is executed. Id.
to assure that
the war-
prematurely,
rant
is not
is,
executed
before
probable
necessary
the events
cause have oc-
required
curred, some courts have
the condi-
anticipatory
tions
which the
warrants be-
"explicit,
narrowly
clear,
come effective be
and
Gendron,
drawn.” See United
965
955,
States v
18 F3d
(CA 1994),
Rey,
1,
but see United States v
1991)
(CA
("Although may
F2d
it
be
preferable” to include a statement
that the search
only
could
ery
be executed after the controlled deliv-
point
occurred, "the warrant’s silence on this
void.”).
does not render it
magistrate’s
We need not determine whether the
probable
predicated
determination of
cause was
delivery,
the occurrence of the controlled
anticipatory
Michigan,
warrants are
valid
or
particular
whether warrant was defective for
failing
specific prerequisites
to include
for effec-
probable
tiveness. Because
cause to search defen-
dant’s residence existed at the time the warrant
issued,
was
it was not an
warrant.
receipt
An individual’s
of a
of contra-
probable
band establishes
cause to search the resi-
dence for other contraband and items associated
drug trafficking.
with
Landt,
188 Mich
App
(1991),
234;
recipient, contraband, and delivered and address where the contraband is *7 supports a to believe that trafficking drug evidence of be at that other would location. case, defendant,
In this the connection between contraband, the established before the case, attempt and the defendant’s residence was
delivery place. In took this contraband, Landt, concealed an detection, to avoid to defendant. was sent Landt, however, recited Unlike facts strongly ex- affidavit indicated that defendant particular pected package this aware of and was purporting An to be defen- its contents. individual telephoned post inquired office, about the dant provide package, and information con- was able cerning number, desti- mail label pro- person nation, address. return That number he could be vided where People Opinion of the Court called, reached. When that number was an individ- (two correctly package’s ual identified the contents disks). designed computer floppy boxes to hold circumstances, Under these the connection be- defendant, residence, tween containing his and the only contraband was established not because defendant was the named addressee on package, but also because the actions of the defendant, who addressee, identified himself as the clearly anticipated receiving indicated that he particular package.
Because the connection defendant, between residence, by and the contraband was established the facts set forth in affidavit, there was probable cause to search defendant’s residence for drug other contraband and items associated with trafficking, even before the controlled necessary Landt, occurred. connection was by accepting established the defendant’s of the package. why receipt However, we find no reason necessary of the is where the nexus be- tween defendant ánd the is established reasoning other facts. The in both instances is the same. When the affidavit shows that an identified anticipates receiving, received, individual has specific through particu- contraband the mail at a location, lar there cause to believe that other contraband or evidence of the crime will be found at that location. reviewing
As a
court, we are to ensure magistrate’s
there is a substantial basis for the
probability
conclusion that
there is a "fair
contraband or aof
crime will be found in
particular place.” Russo,
439 Mich
totality
604;
related probably of such conduct. uncover evidence would the time existed at find We that magis- issued, or not the whether the warrant was trate believed the warrant would after be executed Therefore, had been delivered. defective, defendant’s motion was not properly suppress denied.2 was argues Lastly, court trial defendant refusing to deviate from its discretion abused years mandatory of for minimum sentence ten the the possession to deliver of with intent conviction grams to 225 of cocaine. Defendant contends post-conviction justified re- behavior a Although disagree. defendant duced sentence. We prior pre- offenses, no the information in the investigation report, which defendant did sentence part challenge, indicates involving ongoing enterprise criminal several an shipments both to from sender of in this court did involved case. trial compelling no not err substantial and depart mandatory reasons to from the minimum App Lawrence, v sentence. (1994). NW2d Affirmed. J.,
M. A. Chrzanowski, concurred. (concurring dissenting part J. Wahls, part). majority’s I in the resolution of the concur regarding original opening issue the war- without search Fourth Amend- rant was violation suppress The trial court denied defendant’s motion on the basis a valid warrant. the trial warrant was Where reason, right wrong court reaches the result this Court will Co, 462, 472; Chicago reverse. Title Ins 194 Mich not 487 NW2d Bonner *9 Opinion by Wahls, J. rights. pointed by majority, ment As out preserved by issue was not plea. virtue of defendant’s regard sentencing I also concur with to the issue. respectfully majori-
However, I dissent from the ty’s position probable there was cause at the time the warrant was issued to search defendant’s residence. Both the United States and
Michigan
guarantee
person’s right against
Constitutions
person,
unreasonable searches and seizures of the
papers,
houses,
Const,
IV;
effects. US
Am
1, §
Const
art
11. Probable cause to search
must exist at
the time the search warrant
person
issued. Probable cause exists when a
justified
concluding
reasonable caution would be
that evidence of criminal conduct is in the stated
place to be
Gates,
searched. Illinois v
213;
US
(1983); People
103 S Ct
I with the conclusion that there was cause to believe that contra- drug trafficking band other evidence of would be found at defendant’s residence at the time the provided warrant was issued. The affidavit following purporting A facts. man to be defendant telephoned post Highland, Michigan, office inquiring expecting. about a that he was provided express Defendant num- label point, ber. At this there was no connection be- express tween the the Detroit mail label and the Express manager’s Mail office. Defen- dant, left a number where he could be day post employee later, reached. A or so office telephoned the number and an individual "told there, label, that he had located the parcel.” response employee’s not question, parcel
the "individual” stated that Opinion Wahls, J. floppy computer disks. two boxes contained totality actions, find I these Given would grounds that defendant to conclude reasonable actually trafficking illegal drug engaged probably would home of his that a search and uncover Rather, I believe of such conduct. resi- cause to search acceptance was conditional dence package Thus, I the war- believe his residence. analyzed war- as an be rant should *10 rant. anticipatory is a warrant search warrant
An showing probable cause an affidavit based that at some (but presently) cer- future time specified at a crime will be located evidence of tain (2d ed), place. LaFave, Seizure 2 Search and 3.7(c), p search warrants 94. Like traditional § expectation that the contra- exists the there which designated until location remain at the band will anticipatory executed, are warrants the warrant expectation premised sought the contraband designated when the at the location will be Ricciardelli, v United States commences. search 998 F2d (CA 1993); United States v 8, 10-11 1989). (CA 2, It is be- Garcia, 882 F2d 702 objectives Amend- of the Fourth lieved allowing government by are served better ment agents of a con- warrants advance to obtain agents forcing by delivery than trolled rather proceed the con- a warrant under without subject exigent circumstances and straints suppression subsequent Ricciardelli, su- at a date. anticipatory pra alleviates An warrant also at 10. drugs removed or de- will be the risk stroyed agents if the warrant execution of before only after the to obtain a warrant
were
made.
had been
controlled
jurisdictions
Thus,
federal and state
several
People
245
Brake
v
Opinion Wahls, J.
anticipatory
search warrants
have concluded
per
supra
Ricciardelli,
se.
are not unconstitutional
supra
Garcia,
702-703,
11;
at
and cases cited
App
Sousa,
v
18 Cal
4th
therein. See also
(1993);
Rptr
Ulrich,
549; 22
2d 264
State v
265
Cal
(1993);
Engel,
Super 569;
To the first two *11 required particularized showing courts have place the items to be seized in will be the to be specified Requiring searched at a time. such a showing the before warrant is issued ensures that field) (not the the in officers the will when, whether, determine there should be a requisite probable Often, search. the cause is es- showing by tablished that the contraband is "on a sure and irreversible course to its destination.” supra supra. sup- Ricciardelli, Garcia, porting agent affidavit should illustrate that the delivery going occur, believes the how the agent reliability belief, has the obtained the part govern- information, source of that and what 246 Opinion Wahls, J. delivery. play agents Garcia, in the will
ment supra case, of the In this the affidavit at 703. provided, Gregg postal inspector, Fiorina, in rele- part: vant Affiant has made further states that Affiant
arrangements above described instructions to have the delivered mailing pursuant to its August 29, 1991. concerning provided specifics how were No delivery occur or what role was to controlled agents play government controlled would failing provide delivery. By detail, such the contraband did not establish affidavit a sure and irre- was on Therefore, residence. course to defendant’s versible invalid. I hold that the warrant was would The third risk inherent warrants government agents carry will is that overzealous and seizure advance out the search delivery. Therefore, several decisions controlled warrant must ex- have held that search also precise press clearly circumstances under particu- may be executed. One which the warrant execution is contin- lar condition should be that supra; gent upon Garcia, arrival of the contraband. supra. supra.1 Johnson, Ricciardelli, Con- See also ditioning upon delivery the warrant establishes act, criminal to be nexus between the seized, place Ricciardelli, to be searched. supra case, 13. In this the warrant did not have held that the failure to condition the search Other decisions delivery necessarily of the controlled is not fatal. the occurrence (CA 8, 1993), Tagbering, 985 F2d and State v United States v 1991). (SD, Engel, Tagbering, critical factor NW2d holding representation was the in the affidavit to the court’s delivered. would not be executed until the had been issuing Engel, judge orally admonished the officer not In execute the warrant until occurred. controlled *12 Opinion by Wahls, J. precise detail circumstances under which it only fact, was to executed. In condition was be the warrant on or be executed before August 20, 1991. Because warrant this case only failed to authorize a search after the con- occurred, trolled the warrant was invalid. majority’s holding course, the it
Of has rendered unnecessary jurisdiction analyze this adopt uphold should the constitutional valid- ity anticipatory search warrants and whether particular anticipatory warrant was a valid previously disagreement my stated, warrant. As majority with the is that cause to search drug defendant’s residence for traffick- ing had not been established at the time the Therefore, warrant was issued. I believe that anticipatory warrant, was an and should analyzed Additionally, recog- be as such. I would validity anticipatory subject nize the warrants safeguards adopted by jurisdictions. other Because the affidavit did not establish that contraband was on a sure and irreversible course residence, to defendant’s and because the warrant did not detail the circumstances under which the occur, execution could I also would find that Accordingly, warrant was invalid. I ruling would reverse the lower court’s and remand entry suppressing of an order the evidence.