People v. Powell

POWELL PEOPLE v 17, 1993, February Lansing. Docket No. 151214. Submitted at Decided 20, 1993, September appeal sought. at 9:15 a.m. Leave to Powell, Jr., charged Court, Adie in the Genesee Circuit Judith A. Fullerton, J., conduct, first-degree with criminal sexual moved suppression in limine for the of evidence obtained in a search pursuant of his home to a warrant and for the admission of complainant’s history persons evidence of the sexual with other than himself. He contended that the affidavit submitted to a magistrate support application of the for the search warrant statutory requirement naming violated a that an affidavit not person from whom the affiant obtained information must allegations magistrate may contain affirmative from which the spoke personal conclude that the unnamed source with knowl- edge of the information and either that the source is credible or regard that the information is reliable. With to evidence of the complainant’s history, alleged sexual the defendant that testi- mony indicating complainant topless that the was a dancer and company reputed prostitutes was seen in the of would establish complainant prostitute a was and had consented to granted sexual intercourse with the defendant. The trial court prosecution appealed by granted. both motions. The leave Appeals Court held: ruling 1. The trial court abused its discretion in as admissible proffered complainant topless evidence that was a prostitutes. dancer and that she was seen with That evidence is statute, rape-shield 750.520j; barred MCL MSA 28.788(10), prejudicial probative and it is more than with respect to the claim that the sexual encounter between the complainant and the defendant was consensual. suppressing 2. The trial court erred the evidence obtained support with the search warrant. The affidavit submitted in application 780.653; 28.1259(3), the warrant satisfies MCL statute, as amended 1988 PA 80. Pursuant to that may upon supplied by affidavit be based information a named Where, here, named, or unnamed source. as the source is not in the affidavit must show that the source is case, or credible the information is reliable. this Powell Corrigan, P.J. reading of the affidavit establishes that common-sense Thus, complainant complainant may was the source. be who, being alleged a named source the victim of the considered crime, knowledge alleged. personal facts Alterna- had source, tively, complainant if the is considered an unnamed reliability of the information was established the self-au- thenticating details in the affidavit. Reversed. P.J., Corrigan, that trial court also stated should have prosecution’s proof considered the offer of that affiant affidavit testified under oath at the time warrant was complainant allega- presented the source of the was testimony in A of such oral tions the affidavit. reconstruction affiant, affidavit, supplement to the would not as a rights Amendment and should violate the defendant’s Fourth Finally, a technical be allowed. the exclusion evidence for 28.1259(3) 780.653; overly violation of MCL MSA harsh under good-faith exception A the circumstances of this case. to the recognized exclusionary rule should be in this case. McDonald, J., dissenting part, agreed concurring part proffered complainant’s history

that the evidence of the sexual inadmissible, but stated that the warrant affidavit is deficient 28.1259(3) 780.563; under MCL and that the trial court suppressed pursuant correctly evidence seized to the warrant. Kelley, Attorney General, L. Frank J. Thomas Casey, General, Weiss, E. Solicitor Robert Prose- cuting Attorney, Kuebler, Chief, A. and Donald Appellate people. Division, for the

Barney Whitesman, R. for the defendant. Shepherd P.J., Before: Corrigan, and Mc- JJ. Donald, people appeal by P.J. The leave

Corrigan, granting granted an order defendant’s mo- from pursuant suppress to a tion to evidence obtained granting and from an order defen- search warrant motion to admit evidence of the victim’s dant’s prosecu- parties in third this sexual conduct with Opinion by Corrigan, P.J. 750.520b(l) conduct, MCL tion for criminal sexual 28.788(2)(l)(e). (e); MSA We reverse both orders.1 charges underlying The incident occurred on alleged 19, 1991. The victim that she was October visiting neighbor defendant, a whom she had approximately years, four to five at his known for apartment. attempted leave,

When victim prevented doing defendant her from so. After threatening sexually club, her with a he assaulted prosti- victim, her. Defendant contends tute, with consented to have sexual intercourse falsely him and then only accused him of sexual assault pay he failed her. because We address two (1) appeal: issues on whether the court erred ruling pertaining certain admissible persons the victim’s sexual activities with other (2) than defendant and suppressing whether the court erred pursuant evidence obtained to a search warrant that was determined to be invalid.

I. THE EVIDENCE OF VICTIM’S PRIOR CONDUCT ruling The court abused its in discretion admis- regarding certain evidence sible victim’s em- topless ployment as a dancer and that prostitute. people victim was a contend rape- admission of the evidence will violate 28.788(10), 750.520j; statute, shield while MCL MSA argues preclusion defendant of the evidence right will violate his constitutional to confront rape-shield witnesses. The lower court found the applicable, statute but ruled the evidence could be it admitted because was "material to a fact at prej- issue,” defense, defendant’s consent and "the outweigh probative [did] udicial nature not its Shepherd 1Judges i; Judge and concur McDonald Section Shepherd concurs in Sections i and n. The views stated in Section m opinion of the are mine alone. People Powell v Corrigan, P.J. disagree We value.”2 hold inadmissible. Michigan rape-shield statute

Enactment of Legislature’s that, reflected the the determination overwhelming prosecutions, majority of evi- rape par- of a victim’s sexual conduct with dence defendant, as as the ties other victim’s sexual than the well reputation, is neither an accurate veracity nor determinative measure of the victim’s of the likelihood of consensual sexual relations People LaLone, v 432 Mich with the defendant. (On (1989); People 103; 437 NW2d 611 v Wilhelm Rehearing), App 574; 476 190 Mich NW2d (On Remand), (1991); People v Lucas (1992). pre- Thus, 298; 484 the statute NW2d specific cludes all evidence of instances of a vic- opinion repu- conduct, tim’s sexual tation as well as except same, evidence of the that a defen- may of the dant introduce evidence defendant’s past sexual conduct with the victim or evidence showing specific activity instances of sexual origin pregnancy, semen, disease, or if source or prejudicial the evidence is material and its effect outweigh probative not value. MCL does its 28.788(10)(1). recogniz- 750.520j(l); However, application evidentiary ing of the statute’s might a defen- exclusion some instances violate right confrontation, dant’s Sixth Amendment our that such evi- Court has indicated may be when offered for the dence narrow admissible

purpose showing a victim’s bias or mo- filing People LaLone, tive for a false claim. supra; Hackett, 365 NW2d 403(a)(3) Although recognize jurists MRE to we some believe be issue, analyzing proper vehicle for this the lower court and the parties and, applied analysis applicable rape-shield statute have to otherwise, majority until Court us we a of our instructs LaLone, do the same. See 437 NW2d will Corrigan, P.J. case, the intro- defendant seeks In the instant party testimony by that on a a third duction date before the assault walking the victim he saw persons been informed were whom he had with prostitutes question a date after the incident and that on dancing topless at a the victim

he viewed testify topless also seeks to club. Defendant local that, approximately incident, months after two waving standing corner to on a he saw the victim passing He in a short skirt. cars while dressed engaging he believed she was what contends prostitution. attempts Defendant to solicit be defense that is material to his claims this evidence in ex- to have intercourse the victim consented change agree appropri- money. an We might re- a such as defendant’s ate case quire defense demonstrating the admission of evidence employment prostitute at the time of victim’s as a alleged This, however, not the case. assault. the The attempts

majority defendant of the evidence not material to his claim that to introduce is prostitute from whom he solicited victim was a question. A date in victim’s em- services on the ployment topless her a dancer does not render as prostitute. The offer of this evidence constitutes attempt place nothing before more than "questionable” jury character. the victim’s sexual rape- type Clearly, that the this is the shield statute was enacted address. remaining

Moreover, evi- we find defendant’s prejudicial proba- considerably more than dence tive. person in the viewed the victim who alleged prostitutes company did testified he prosti- in fact not know whether the women were anything any event, he had never heard tutes. reputation. Likewise, defen- the victim’s bad about self-serving testimony that two months af- dant’s allegedly crime, he the victim ter the witnessed People v Powell Opinion by Corrigan, P.J. soliciting questionable probative was of value with respect him to whether she had solicited two ruling months earlier. The court erred in proffered evidence admissible.3

II. SUPPRESSION OF OF EVIDENCE—SUFFICIENCY

AFFIDAVIT sup- next court We conclude that erred pressing . the the fruits of search of defendant’s apartment. just noon; The crime occurred before procured day. the warrant was the same The explicitly search warrant affidavit did not state the victim herself was the source of the reading However, information. the a common-sense affidavit, whole, taken as a that the establishes allega- named victim was the actual source of the tions underlying A search warrant affidavit. victim, crime mant, in contrast to an underworld infor- presumptively Additionally, reliable. proven reliability victim’s was the self-authenti- cating details of the crime affida- contained 28.1259(3), Accordingly, 780.653; vit. MCL as amended 1988 PA was satisfied. affiant,

The affidavit states that a Flint police sergeant years experience, with ten was investigating a criminal sexual conduct case ear- day apartment. lier that at the defendant’s The complainant by affidavit then identifies the name. complainant It stated that dant’s talking visited the defen- apartment, neighbor years. her of four After drinking gin forty- with him for about complainant minutes, him five asked for her prejudicial Because we find the evidence either irrelevant or more probative, than we need not whether address exclusion was mandated apparent requisite ten-day because of defendant’s failure to meet the However, requirement notice of the statute. we to note failure file may require such a notice the exclusion of evidence otherwise admis Lucas, supra. sible under the statute. Corrigan, P.J. get it, she went declined When defendant

coat. subse- it. Defendant look for the bedroom complainant grabbed quently from behind club. a carved wooden her with threatened specific of three details furnished then affiant first-degree conduct, as sexual criminal counts example, explicit the crime—for details of as well the cranberry- presence on defendant’s semen of also de- The affiant the bed. robe and colored physical evidence items of the location scribed complainant had the defendant and the that permission sought to search The affiant touched. drinking glasses, including items, these cranberry- gin stick, the bottle, club or the brown clothing. robe, bed colored 28.1259(3), an 780.653; MSA to MCL Pursuant supplied upon may information be based affidavit by If source is or unnamed source. a named only contain affirmative named, allegations need the affidavit magistrate permit to conclude knowledge personal of the the source had that facts alleged. unnamed, If the source the source is must show that in the affidavit credible or is reliable. that the information reading affidavit, taken A common-sense yields whole, the affiant the conclusion as a obtained crime victim. directly the named from her information not an "unidentified The victim was police sense. Neither informant” in the classical subject identified crime victims are nor officers applied requirements in- once to confidential Aguilar/ milieu under from the criminal formers Spinelli.4 Indeed, States Court the United veracity traditionally of informa- assumed the has Maroney, by supplied Chambers v tion the victim. 4 (1964); Texas, 108; 1509; Aguilar 12 L Ed 2d v 378 US 84 S Ct 723 States, 410; 584; Spinelli 21 L Ed 2d 637 393 US 89 S Ct v United (1969). People 523 v Powell by Corrigan, P.J. (1970). 42; 399 1975; US 90 S Ct L26 Ed 2d States, Jaben v United 214; 1365; 381 US 85 S Ct (1965). Michigan 14 L Ed 2d 345 courts con- also police sider identified citizens and officers to be presumptively e.g., People See, reliable. v Goecker- App man, 126 517, 522; NW2d (1983), therein; Harris, and cases noted v App (1980); People 95 Mich 507; 291 NW2d 97 Emmert, NW2d rape Because the victim was identified name experienced police officer, both the officer and presumptively the victim are considered reliable. magistrate properly The concluded that the source personal knowledge alleged. had of the facts Alternatively, apply prong if we second statute, and conclude that un- the source is reliability named, of the information is established self-authenticating in the details search gave thorough warrant affidavit. affiant particularized description of the crime. These de- reliability. tails alone establish United States v (CA 1971). McCreary Mahler, 442 F2d 1172 (CA Sigler, 1969), Eighth 1264, 8, 406 F2d 1269 the Appeals, discussing proba- Circuit Court in the analysis informant, ble cause for an unknown recognized reliability may that be established alleged: the the nature of facts circumstances, Under such reliability an in- may formant best be the established affiant relating some corroboration of the which story the Furthermore, underlying informant tells. cir- (sic), corroboration, cumstance even without may credibility guides have built-in to the informant’s reliability. The of reliability may essence be found in an informant’s statement of facts rather than allegation conclusory suspicion. of mere An informant alleges "eye he who is an witness” to an perpetrated actual crime demonstrates sufficient 516 Mich 524 Corrigan, P.J. . . . Probable cause person. "reliability” of citizen the unknown may exist where

an arrest makes crime, eyewitness to a victim or complaints, as demon- underlying circumstances where omitted; knowledge. strate his firsthand [Citations emphasis added.] Aguilar/Spi- McCreary out that pointed court of informants nelli problems to the only related to arrests based underworld and from the criminal general target’s of the suspicion because on mere pres- Id. at 1268. Neither situation reputation. in this case. ent REMAND OF EVIDENCE—MITCHELL5

III. SUPPRESSION FOR REMEDIES THE OF EXCLUSIONARY AND VALIDITY STATUTORY VIOLATIONS I also con- separately in because part I write could have entertained that the circuit court clude the affiant proof offer of that prosecutor’s time the warrant affida- under oath at the testified rape victim herself was presented vit was affidavit. the source of the Further, of the amendments contained light precedent federal intervening in 1988 PA rule, the continu- relating exclusionary to the powers doctrine supervisory refinement of the ing Sherbine, 421 People nine since years (1984), decided,6 I 658 was 502; 364 NW2d of Sherbine’s con- continuing validity question probative exclusion clusion 5 Mitchell, 364; 798 NW2d Leon, 897; 3405; See, e.g., 104 S Ct 82 L States v 468 US United Krull, 340; 1160; (1984); 94 L Ed 480 US 107 S Ct Ed 2d 677 Illinois v States, 2529; (1987); 533; Murray 487 US 108 S Ct v United 2d (1988) also, e.g., (good-faith exception); see Bank of L Ed 2d 472 States, 250; 2369; 108 S Ct 10Í L Ed 2d v United 487 US Nova Scotia Mechanik, 938; (1988); 106 S Ct 89 L States v 475 US United 1974; 499; (1986); Hastings, 461 103 S Ct States v US Ed 2d 50 United (Í983) (supervisory power). 76 L Ed 2d 96 525 People Poweli, v Corrigan, P.J. justified statutory espe- See, for a mere violation. Judge cially, People discussion v Griffin’s Tejeda, App 181 450, 449 466-467; NW2d 908 (1989) (On Tejeda Rehearing), v 188 Mich (On (1991);People Tejeda 292; 469 77 NW2d v Remand), App 635; NW2d A. ABSENCE OF FOURTH AMENDMENT VIOLATION preliminary matter, As I a conclude that a procedure permitting of oral testi- reconstruction mony authorizing actually magistrate heard Aguilar not would offend the Fourth Amendment. Texas, 108, n 109, 1; 1509; US 84 Ct 12 L S (1964), recognized assessing Ed 2d 723 validity that in reviewing warrant, of a a court should only brought magis- consider information to the Whiteley Warden, 560, trate’s attention. 401 US (1971), 8; n L S Ct 2d 306 Ed suggests that an otherwise insufficient can affidavit testimony presented be rehabilitated sworn oral during application process. By the warrant con- trast, an insufficient affidavit can never be rehabil- itated if the information was not disclosed to the issuing magistrate. precautions guarantee These purpose that ment the central of the Fourth Amend- is, will be served. That a neutral and de- magistrate investigator’s tached reviews an deter- probable mination cause. Supreme Court, however,

The United States has directly not decided whether and under cir- what supplement cumstances oral information can written search warrant affidavit. fed- Numerous courts, however, eral circuit held have require Fourth Amendment does not a written supporting application sworn statement for a government may prove search warrant. The issuing magistrate apart information, had oral 516 526 Opinion Corrigan, P.J. affidavit, authorize in the to

from the warrant. United States v search issuance (CA 1974); 5, Hill, 315, 500 F2d 320-321 United Brierley, Gaugler 516, F2d 522- ex rel v 477 States (CA 1973); 1224, 3, Roberts, 441 F2d 523 Frazier v (CA Eyman, 1971); 8, 648, 389 F2d Sherrick v 1226 1968). (CA recording 9, the oral is 652 Nor required by the Fourth Amendment. information magistrate’s duty testimony under The is take testimony preserved oath, whether or not that is Goyett, 699 later review. United States v F2d for 838 1983). (CA generally, LaFave, 6, See, Search 4.3(b); Seizure, § anno: court determi- and nation of Federal probable con- cause for search warrant: testimony was, in of oral which addition sideration affidavit, who 24 before officer issued warrant. 107. ALR Fed supra Hill, 322,

In the Fifth United States v at supplementation Appeals Court of allowed Circuit of the affidavit with oral testimony and declined to exclude relevant evidence: apply situation furnishes no occasion to [T]his to bar the of Hill’s exclusionary rule executing the criminality that was obtained in Phillips properly going to the

warrant. magistrate acted seeking Magistrate warrant. calling infor- properly Sear acted mation to additional Thus, credibility. only demonstrate procedure they error attributable to the followed way a technical one that would deterrent no serve purposes of the rule. Williams, v F2d See also United States 1980). (CA 5, B. REMAND TO ORAL TESTIMONY RECONSTRUCT response People supra, Sherbine, v Powell Corrigan, P.J. Legislature, PA in 1988 amended the search 28.1259(3). statute, 780.653; warrant MCL Legislature repudiated Sherbine’s conclusion expanded statute had codified and (In AguilarZSpinelli Sherbine, test. this construc- tion the statute allowed the Court to deciding Michigan avoid whether followed Illinois Gates, 213; 462 US S Ct 76 L Ed 2d [1983].) statutory The current test now far lenient than more the former wooden and inflexi- Aguilar/Spinelli Legislature certainly ble test. The contemplate did not the situation at hand it when response amended the statute in to Sherbine. Nor Legislature suppression remedy did the choose as a for technical violations of or the statute foreclose testimony actually pre- remands to reconstruct examining magistrate. Tejeda, sented to the See supra at 464. significantly,

Even more after de- Sherbine was Supreme cided, the Court in Mitchell, (1987), Mich 408 NW2d 798 directed a remand testimony actually to oral reconstruct heard authorizing judge. Mitchell, in- defect unsigned volved was an search warrant. Id. at 366. principled deny Mitchell-type I remand in these no see reason to a remedy Such

circumstances. a especially appropriate because the search warrant explicitly and affidavit in this case state that magis- affiant was examined under oath before trate. The first of the sentence search warrant part, states, in relevant "On examination on oath writing reading and in of . the affiant. . and after evaluating and . .” the affidavit. .

C. REMEDY EXCLUSIONARY FOR STATUTORY

VIOLATIONS Suppression judge-made evidence, of seized a Mich Corrigan, P.J. designed remedy of the Fourth to deter violations remedy Amendment, for the is warrant harsh a defi- too depicted draftsmanship cient search these facts. Michigan A violation of technical require exclu- should not search warrant statute probative the absence an sion of explicit evidence justifi-

legislative Sherbine’s sole directive. exclusionary remedy statutory for an for cation People Chartrand, 73 is a to violations reference (1977), App 645; in a footnote. Mich 252 NW2d Supreme 511-512, n 18. The Court See did not so Chartrand, much Chartrand. as discuss turn, discuss, at not much less at- does suppression probative tempt justify, why statutory a is warranted for mere viola- tion. Supreme this diffi- Court’s failure to discuss troubling. question

cult The issue of Sherbine Supreme authority suppress Court’s evi- significant statutory dence for violations is complex. may Indeed, lack the Court remedy authority impose exclusionary e.g., Reconsidering statutory See, Beale, violation. power supervisory in criminal cases: Constitutional statutory authority on the limits federal courts, L R Professor Columbia where United Beale examines cases Supreme the States requested apply Court declined reme- statutory Congress dies for not Beale violations because had explicitly authorized those remedies. Professor

explores separation-of-powers problems the legisla- judicial usurpation of unexercised in the powers purely remedies for statu- tive fashion well-developed analysis tory violations. Her raises questions Michigan’s similar about scheme. See Tejeda, supra J., 461-467 also ing). at dissent- (Griffin, exclusionary remedy Moreover, an is cruel and Powell Opinion by Corrigan, P.J. disproportionate Physical in these circumstances. corroborating the commission of a serious suppressed investiga- crime would be so that this tor will theory from be deterred future "misconduct.” The through punishment, that, this the detec- judges tive would learn to inform in the future in writing allegations. about the actual source the of noted, As the Fourth Amendment itself does not command a written submission. Michigan Tucker, 94 Ct 2357; US S (1974), Supreme recog-

L41 2d 182 Ed the Court purposes nized that the ary of deterrent the exclusion- police engaged rule assume that the have in negligent deprived wilful or conduct that has the the right. remedy ignores defendant of The some prospect unjust acquittal theory of on offending police high lesson to officers worth the case, minimis, In this de cost. the the violation is but disproportionate cost punishment is extreme. The nature of is even more extreme if the inves- tigator actually judge informed district about allegations. of source The detective com- plied by applying with the Fourth Amendment apparently good complete a warrant. She in acted faith.

The deterrence rationale has no force whatso- setting. investigator ever this The did not en- gage deterring in misconduct worth in a rational society. police pro- The "error” to the attributable unwilling equate I cedure was technical. am slight imperfection draftsmanship human de- picted here the "midst and of haste a criminal investigation” warranting with misbehavior remedy suppression. advancing drastic from Far purposes exclusionary the deterrent rule, promotes public exclusion this evidence disre- spect legal process. for the recognized good-faith Court has á McDonald, J. obtaining

exception violations in for constitutional Leon, 497 US States a search warrant. United 897, 903, Ed n 82 L 2d 677 1; 104 S Ct statutory power suppress judicial for viola- If Michigan judges Michigan, in then tions does exist recognize exception good-faith surely should statutory the violation at issue. jurisdiction

Reversed; retained. not J., Shepherd, parts only. ii concurred with I and part dissenting (concurring and J. McDonald, part Judge Although part). I i concur with of Corrigan’s opinion, respectfully I dissent from the opinion. of balance the people on in concede the affidavit relied satisfy

issuing the failed search warrant 28.1259(3). requirements 780.653; of MCL MSA Although thorough, specific, the affidavit contained particularized facts, it failed name though appears of information. Even it source from the obvious the information was obtained magistrate informed, and that was so victim the uous. language mandatory unambig- statutory probable finding It cause "shall states upon all the facts related within the be based added) (emphasis and, if the affidavit is affidavit” upon supplied by unnamed information based person, it contain must magistrate

affirmative may knowledge from which the person spoke personal conclude that with and either that information informa- person unnamed is credible or 28.1259(3) 780.653(b); tion reliable. [MCL (b)J suppression of the statute results Violation pursuant to the warrant. the evidence obtained Powell Opinion by McDonald, J. Sherbine, 364 NW2d 658 (1984). Although suppression of the evidence seems remedy case, to be a in this I do not harsh believe liberty ignore we are at set forth directives opinions of our Court. I would hold granting the trial court did not err in defendant’s suppress. motion to

Case Details

Case Name: People v. Powell

Court Name: Michigan Court of Appeals

Date Published: Sep 20, 1993

Citation: 506 N.W.2d 894

Docket Number: Docket 151214

Court Abbreviation: Mich. Ct. App.