On April 10, 1981, a jury found the defendant guilty of the unlawful manufacture, delivery or possession of a controlled substance, *751 marijuana, with intent to deliver. MCL 333.7401; MSA 14.15(7401). He was sentenced on May 7, 1981, to a term of 18 months to 4 years imprisonment.
The defendant’s problems arose from the fact that two dump truck loads of marijuana, weighing approximately 8,000 pounds, were discovered on his property.
On September 7, 1980, at approximately 10 p.m., Deputy Haik of the Manistee County Sheriffs Department received a telephone call from an informant by the name of Gary Argue, who told him that he knew the location of a cornfield in which marijuana was growing and was in the process of being harvested. Haik and his partner, Deputy Tighe, met with the informant about ten minutes later, at which time the informant showed the deputies some plant material believed to be marijuana. Argue claimed to have picked the marijuana from a cornfield located on defendant’s farm.
Deputy Haik contacted the Manistee County Sheriffs Department by telephone and spoke with Detective Sergeant Cloutier. Haik related the information given him by Argue and asked Cloutier to obtain a search warrant for defendant’s premises "as a matter of convenience”.
Cloutier signed an affidavit as the affiant, stating that he personally talked to the informant. However, Cloutier testified at the suppression hearing that all of his knowledge regarding the marijuana located in defendant’s field came from Deputy Haik and that, contrary to the affidavit, he was never told anything by the informant prior to obtaining the warrant.
The search warrant obtained by Cloutier contains the following description of the property to *752 be searched: "Section 1 in Bear Lake Township off County Road 600 * * * said property being leased or rented by Robert Mackey.” The property to be seized was described as "marijuana * * * growing plants * * * bundled cut marijuana”.
Although the informant had told Haik that marijuana was being harvested, Haik did not believe that it was imperative for him to determine whether the marijuana was being transported away from the area, because he felt that "the warrant was coming quick enough that we could, in fact, get in before everything was gone. The informant told us that there was a great deal of this stuff in the field that was being harvested.”
The raid began around midnight. Once on the scene, Haik went directly to the rear of the cornfield where the officers found marijuana.
Deputy Dale Kowalkowski of the Manistee County Sheriff’s Department had arrived on the scene with Detective Cloutier and others. Kowalkowski was unable to serve the search warrant upon defendant because no one would answer the door. At some point, Kowalkowski and others began searching the premises, including the outbuildings. Kowalkowski testified that he could see through the windows and the open doors on the bottom floor of a shed but saw nothing that appeared to be marijuana.
However, according to Kowalkowski, he observed a new stairway leading up to a closed door at the second level of the shed. There was a hasp on the door with a padlock through it. Shining a flashlight through a crack in the door, Kowalkowski observed a green leafy substance inside the shed. He and Haik later went up the stairs and with their flashlights shined through the crack in the door and observed a large quantity of cut and *753 bundled marijuana. Haik broke the lock off with a tire iron and they entered the shed. On cross-examination, Kowalkowski stated that, prior to looking through the closed door, he did not have any reason to search the second floor of the shed.
Defendant was arrested in the early morning hours of September 8, 1980.
At a hearing conducted on April 6, 1981, defendant moved to suppress the marijuana alleging that (1) the search warrant for the cornfield was invalid because it was supported by an affidavit containing false information and (2) the search of the shed was illegal because it was conducted without a search warrant.
The trial court denied defendant’s motion, finding that the defect in the affidavit was a mere technicality and that the search of the shed was justified by exigent circumstances. A trial court’s ruling on a motion to suppress evidence will not be reversed unless it is clearly erroneous.
People v Grimmett,
The first issue raised on appeal by defendant is a narrow one. In obtaining the search warrant, the affiant police officer relied upon information obtained by another officer from an informant. Defendant does not challenge the informant’s knowledge or credibility nor does he allege an inconsistency between the informant’s statements and what was recited in the affidavit. Defendant’s sole challenge is to the veracity of the affiant’s first-person statements since the affiant had, in fact, received his information from the informant through a third person, Deputy Haik.
It is not disputed that information received from a fellow officer may properly be used as a basis for a warrant affidavit.
United States v McCormick,
*754
309 F2d 367, 372 (CA 7, 1962),
cert den
This rule, however, does not relieve the affiant of his obligation to inform the magistrate of the fact that he received the information from a fellow officer and of his reason or reasons for finding the information reliable. The question here is whether the trial court’s finding that Detective Cloutier’s failure to so inform the magistrate was immaterial constitutes an error mandating reversal.
The test for determining whether false statements made in a warrant affidavit require suppression of the evidence obtained by means of the warrant was enunciated by the United States Supreme Court in
Franks v Delaware,
The Supreme Court remanded with directions for the trial court to hear and decide defendant’s challenge to the veracity of the information in accordance with the following test: where a defen
*755
dant can show by a preponderance of the evidence that the affiant has knowingly and intentionally or with reckless disregard for the truth inserted false material into the affidavit and that the false material is necessary to a finding of probable cause, the search warrant must be quashed and the fruits of the search excluded at trial.
Our review of the record in the present case discloses that the trial court failed to apply the Franks test in determining whether Officer Cloutier knowingly and intentionally or with reckless disregard made false statements regarding the source of his information and, if so, whether those statements were necessary to a finding of probable cause. However, we decline to remand since we believe that the search of the cornfield was permissible even without a warrant.
The Fourth Amendment to the United States Constitution does not protect against searches without a warrant of open fields. This rule was first articulated by Mr. Justice Holmes in
Hester v United States,
In a recent case, the United States Court of Appeals for the Ninth Circuit reiterated the efficacy of the "open fields” exception in a case in which police officers discovered marijuana while conducting a search without a warrant of a van apparently abandoned in an open field.
United States v Basile,
569 F2d 1053, 1056 (CA 9, 1978),
cert den
*756
For other opinions citing the open fields exception to the Fourth Amendment, see
Air Pollution Variance Board v Western Alfalfa Corp,
Just recently, the United States Court of Appeals for the Sixth Circuit undertook an extensive discussion and review of federal cases relying on the open fields exception and concluded that the exception has survived the test of Katz, supra, and other Fourth Amendment limitations. United States v Oliver, 686 F2d 357 (CA 6, 1982).
Neither does the Michigan Constitution protect against the warrantless search of an open field,
People v Ring,
Defendant’s federal and state constitutional rights against unreasonable search and seizure were not violated by the search of the cornfield and the trial court properly admitted into evidence marijuana seized from that field.
*757 We must next determine whether the marijuana obtained from the shed should have been suppressed by the trial court on the grounds that it was obtained through an illegal search without a proper warrant.
Initially we find that the search warrant in this case, assuming
arguendo
that it is valid, does not authorize a search of the defendant’s shed. The following description of the property to be searched was contained in the warrant: "Section 1 in Bear Lake Township off County Road 600 * * * said property being leased or rented by Robert Mackey.” While it is recognized that rural property does not lend itself readily to precise description,
United States v Hassell,
427 F2d 348 (CA 6, 1970), property that is within the curtilage of any dwelling house must be described with specificity in a search warrant to justify a search of that property.
People v
Bawiec,
In the instant case, the search warrant did not describe either the dwelling house or the shed. Because the shed is within the curtilage of defendant’s dwelling house, defendant had an expectation of privacy under the Michigan Constitution.
The trial court found that the search of the shed was justified by exigent circumstances. We do not agree. When the shed was discovered, at least several police officers were on the property. There was no evidence of harvesting activity, and it even
*758
appears that no one was present in the house. One of the officers could have left to obtain a warrant, leaving the others to secure the premises. The fact that the officers had already obtained a warrant that evening to search the cornfield indicates that time was not an absolute factor.
People v Plantefaber,
The prosecution also urges application of the "plain view” exception, which argument was rejected by the trial court below. We agree with the trial court’s holding. The conditions for applying the "plain view” exception are well established as reviewed by Judge Maher in
People v Dugan,
The marijuana discovered in defendant’s shed was thus obtained as a result of an illegal search and should not have been admitted into evidence at trial.
The defendant also argues that the trial judge was personally biased against him because of a comment made by the judge in chambers during discussion of the motion to suppress. The defen
*759
dant failed to show any personal prejudice on the part of the judge, and there was no claim that any statement prejudicial to defendant was made before the jury.
People v Page,
The last issue raised by defendant on appeal challenges the trial court’s delivery, sua sponte, of an aiding and abetting instruction to the jury. There was some evidence introduced at trial showing that the farm was owned by a man named Lutz. The defendant’s attorney argued that a reasonable assumption was that the marijuana was grown and harvested by Lutz.
The general rule governing jury instructions on aiding and abetting given
sua sponte
is described in
People v Parks,
"In order to warrant such an instruction, there must exist some evidence of a 'concert of action’ between the defendant and the principal in the commission of a crime. People v Marshall,53 Mich App 181 ;218 NW2d 847 (1974).
"The sine qua non of aiding and abetting is that more than one person must be criminally involved either before, during, or after the commission of a crime. A defendant cannot aid and abet himself in the commission of his crime. In order to sustain a charge of aiding and abetting against an accessory, the guilt of another person as principal must be shown. People v DeBolt,269 Mich 39 ;256 NW 615 (1934); People v Williams #1,45 Mich App 623 ;207 NW2d 176 (1973).”57 Mich App 743 .
In this case, there was no evidence, except a *760 suspicion thrown out by counsel, to justify the giving of an aiding and abetting instruction. On retrial, unless evidence appears that there was a principal, this instruction should not be given.
Reversed and remanded for new trial at which evidence of the marijuana seized from the shed shall be excluded.