PEOPLE v RUSSO
Docket No. 90088
Supreme Court of Michigan
Decided June 2, 1992
Argued November 6, 1991 (Calendar No. 6).
439 Mich 584
In an opinion by Justice BOYLE, joined by Justices RILEY, GRIFFIN, and MALLETT, the Supreme Court held:
The extended period of limitation for prosecution of criminal sexual conduct involving a minor applies to formal charges of offenses not barred on the effective date of the statute filed after its effective date. Such an application is not a violation of the Ex Post Facto Clauses of the United States and Michigan Constitutions. In this case, the supporting affidavit provided the magistrate a substantial basis to conclude that there was probable cause to believe that the evidence to be seized would be found in the place to be searched.
1. Neither ex post facto analysis nor application of the general statute of limitations requires dismissal. The amendment of
REFERENCES
Am Jur 2d, Assault and Battery §§ 24-27, 41-42, 65; Searches and Seizures §§ 1-6, 41-44, 60-62.
See the Index to Annotations under Assault and Battery; Children; Search and Seizure; Sex and Sexual Matters.
2. A new or amended statute generally applies prospectively unless an intention to give it retrospective effect is expressly indicated or may be inferred or where a statute is remedial or procedural in nature. Statutes that operate in furtherance of a remedy already existing and that neither create new rights nor destroy rights already existing operate retrospectively absent a contrary intent. Statutes of limitation do not derive from the common law, but developed from public policy and are acts of legislative will. There is no vested right in the running of a statute of limitation except where it has completely run and the action is barred. Statutes of limitations generally are regarded as procedural and not substantive in nature. Extending the length of time allowed to bring a criminal prosecution that is not barred is a procedural change and fails to alter either the rights of a defendant or any substantive elements of the crime charged.
3. A search warrant and the underlying affidavit are to be read in a common-sense and realistic manner. The degree of probability required for issuance of a search warrant is not subject to numerical quantification. A magistrate must examine the totality of the circumstances to determine whether a fair probability exists that specific evidence of the crime will be found in a particular place and have a substantial basis for issuance of a warrant. A magistrate‘s finding that an affidavit establishes probable cause is entitled to deference. Appellate scrutiny of a magistrate‘s decision involves neither review de novo nor application of an abuse of discretion standard; the preference for warrants 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.
4. In reviewing the finding of probable cause in this case, it
5. In this case, the search was not unreasonable. The affidavit recounted facts uncovered during the investigation that provided the magistrate a substantial basis to make an independent judgment that probable cause existed for a search and that there was a fair probability that the items sought would be present in the defendant‘s home.
Affirmed in part, reversed in part, and remanded.
Chief Justice CAVANAGH, joined by Justice BRICKLEY, concurring in part and dissenting in part, stated that the affidavit at issue was insufficient to establish probable cause to search the defendant‘s home. Some of its allegations are inconsistent and must be excluded. In addition, it contains no allegations that the defendant‘s conduct was part of a continuing pattern or that the police attempted to substantiate the victim‘s claims. Most significant is the absence of an indication that the items that were the objects of the search would be in the defendant‘s possession at the time of execution. Because the allegations were stale, the warrant should be quashed.
Justice LEVIN, dissenting, stated that 1987 PA 255, amending the statute of limitations for prosecutions of criminal sexual conduct where the victim is under the age of eighteen, is prospective, and extends the time for the commencement of prosecution only where the offense is committed after the effective date of the amendment. The Supreme Court has said that it is a sound rule of construction that legislation is to have a prospective operation only, except where the contrary intent is expressly declared or is necessarily to be inferred from the terms employed. A legislative intent to make this enlarged
185 Mich App 422; 463 NW2d 138 (1990) affirmed in part and reversed in part.
- LIMITATION OF ACTIONS — CRIMINAL SEXUAL CONDUCT — MINORS.
The extended period of limitation for prosecution of criminal sexual conduct involving a minor applies to formal charges of offenses not barred on the effective date of the statute filed after its effective date (
MCL 767.24(2) ;MSA 28.964(2) ). - SEARCHES AND SEIZURES — SEARCH WARRANTS — AFFIDAVITS — PROBABLE CAUSE.
A search warrant and the underlying affidavit are to be read in a common-sense and realistic manner; the degree of probability required for issuance of a search warrant is not subject to numerical quantification; a magistrate must examine the totality of the circumstances to determine whether a fair probability exists that specific evidence of the crime will be found in a particular place and have a substantial basis for issuance of a warrant.
- SEARCHES AND SEIZURES — SEARCH WARRANTS — STANDARD OF REVIEW.
Appellate scrutiny of a magistrate‘s decision to issue a search warrant involves neither review de novo nor application of an abuse of discretion standard; the preference for warrants 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.
- SEARCHES AND SEIZURES — SEARCH WARRANTS — PROBABLE CAUSE — APPELLATE REVIEW.
In reviewing a finding of probable cause by a magistrate to issue a search warrant, a threshold inquiry involves the life cycle of the evidence sought given the totality of the circumstances, including the criminal, the thing to be seized, the place to be searched, and, most significantly, the character of the criminal activities under investigation; it cannot be assumed that evidence of a crime will remain indefinitely in a given place, and time as a factor must be balanced with variables such as whether the crime was a single instance or part of an ongoing pattern, whether the inherent nature of a scheme suggests that it probably is continuing, and whether the property sought likely would be disposed of or retained by the person committing the offense.
Harold U. Smiley, Jr., for the defendant.
BOYLE, J. We granted leave in this case to determine whether the amended statute of limitations set forth in
We find that the extended limitation period for criminal sexual conduct involving a minor was intended by the Legislature to apply to formal charges of offenses not time-barred on the effective date of the act filed after its effective date.1 This application is not a violation of the Ex Post Facto Clauses of the United States and Michigan Constitutions.2
In response to the second question, we hold that the supporting affidavit provided the magistrate a substantial basis to conclude that there was probable cause to believe that the evidence to be seized would be found in the place to be searched.
I
FACTS AND PROCEEDINGS
The defendant was charged with three counts of criminal sexual conduct in the first degree,
On April 25, 1989, the Grand Rapids Police Department received information from the victim, then age sixteen, that over a four-year span between the time she was five and ten years old, she had been sexually assaulted by the defendant every other weekend. The assaults allegedly occurred between the fall of 1978 and August, 1982. On April 27, 1989, a warrant was issued for a search of the defendant‘s residence on the basis of an affidavit, the details of which are set forth below. An abundance of homemade and commercial child pornography tapes, sexually explicit photographs, pornographic magazines, sexual paraphernalia, video, television and camera equipment, letters, drawings, and a list of 192 children‘s names were seized during the execution of the search warrant. The evidence seized included sexually explicit videotapes and photographs of the victim.3 As a result of the seizure, the defendant
The statute of limitations in effect at the time of the alleged acts was six years. It is undisputed that, under the previous limitation period, the charges made would have been barred as of August, 1988. However, before the running of the then-applicable six-year period of limitation, the Legislature amended the statute. 1927 PA 175, as amended by 1987 PA 255,
Notwithstanding subsection (1), if an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense under section 145c or 520b to 520g of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.145c and 750.520b to 750.520g of the Michigan Compiled Laws, may be found and filed within 6 years after the commission of the offense or by the alleged victim‘s twenty-first birthday, whichever is later.
The amendment became effective on March 30, 1988, five months before the previous statute of limitations would have expired.
The defendant filed a motion to suppress the evidence and to dismiss the charges, claiming that the action was barred by the statute of limitations and that the warrant was defective. The trial court granted both motions, agreeing that the amended statute could not be applied to crimes committed before its effective date and that the information supporting probable cause to search was “stale.” The trial court ordered that the charges against the defendant be dismissed. The people appealed of right the trial court‘s rulings on the statute of limitations and the search and seizure issues, and the Court of Appeals reversed
Regarding the search and seizure issue, the Court of Appeals agreed that probable cause did not exist and affirmed the lower court‘s ruling that the search warrant was defective and the resulting seizure was illegal.
We granted the defendant‘s application for leave to appeal the statute of limitations issue, and the cross-application for leave to appeal the search and seizure issue. 437 Mich 925 (1991).
II
STATUTE OF LIMITATIONS
The Legislature amended the Code of Criminal Procedure to provide:
[I]f an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense ... may be found and filed within 6 years after the commission of the offense or by the alleged victim‘s twenty-first birthday, whichever is later. [1987 PA 255,
MCL 767.24(2) ;MSA 28.964(2) .]
The prosecution asserts that the extended limitation period applies to those offenses that were committed before the amendment, but were not yet time-barred under the previous statute of limi-
The United States Supreme Court has consistently held that the Ex Post Facto Clause,
“It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.”
* * *
Even though it may work to the disadvantage of
An enactment will not escape a court‘s scrutiny under the Ex Post Facto Clause merely because a legislature has given it a procedural label. However, legislation will not be found violative of the clause simply because it works to the disadvantage of the defendant.9
Well-settled principles require the conclusion that applying the extended statute of limitations to the then-not-yet-time-barred alleged sexual assaults is not ex post facto. The sexual assaults were not innocent when committed, the quantum of punishment is unchanged, and the defendant has not been deprived of any defense available to him at the time the acts were committed. The statute of limitations defense was not available to the defendant at the time the assaults were committed or at the time the amendment became effective. The Legislature amended the statute of limitations five months before the defendant had any substantive right to invoke its protection. The statute of limitations defense remained available
Therefore, finding no violation of the Ex Post Facto Clause, we turn to the issue of legislative intent.
The general rule of statutory construction in Michigan is that a new or amended statute applies prospectively unless the Legislature has expressly or impliedly indicated its intention to give it retrospective effect.10 This rule applies equally to criminal statutes.11 However, an exception to the general rule is recognized where a statute is remedial or procedural in nature. Statutes that operate in furtherance of a remedy already existing and that neither create new rights nor destroy rights already existing are held to operate retrospectively unless a different intention is clear.12
Historically, there was no limitation period on the prosecution of common-law crimes. Statutes of limitation develop out of public policy and are acts of legislative will. There is no vested right in the running of a statute of limitation except when it has completely run and the action is barred. In re Straight Estate, 329 Mich 319, 325; 45 NW2d 300 (1951). A statute of limitation “shelter has never been regarded as what now is called a ‘fundamental’ right ... [h]e may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.”13
Ultimately, however, we rely not on the specific rules of statutory construction, which are merely aids to interpretation, but, rather, as Chief Justice RILEY observed in In re Forfeiture of $5,264, 432 Mich 242, 248; 439 NW2d 246 (1989), we look to “the object of the statute, the harm which it is designed to remedy, and apply a reasonable construction which best accomplishes the statute‘s purpose.” We are persuaded that the charge made here is not time-barred by what we perceive as the clear protective purpose and a reasonable construction of the language of this amendment.16
The legislative goal in enacting the criminal
The apparent purpose of the amendment is to extend protection to a class of presently existing victims, a purpose confirmed by a comparison of the language in the general statute of limitations with that in the subsection extending the limitation period. The statute of limitations in
Notwithstanding subsection (1), if an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense ... may be found and filed within 6 years after the commission of the offense or by the alleged victim‘s twenty-first birthday, whichever is later. [Emphasis added.]
Thus, while the general perspective of the statute
In sum, no reason has been advanced persuading us that the Legislature‘s purpose to remedy what it saw to be a serious problem was to be reserved to crimes not yet committed. As this Court long ago observed in another context, to give the amended statute of limitations solely prospective effect, would render “this section ... useless and the effective date of the act would be postponed 30 years. We do not think that such a result was the intention of the legislature....” Austin v Anderson, 279 Mich 424, 428; 272 NW 730 (1937).18
We affirm the decision of the Court of Appeals.19
SEARCH AND SEIZURE
The warrant was supported by an affidavit stating that the victim reported that, while between the ages of five and ten years old, she had been sexually abused by the defendant at his home every other weekend over a four-year period, beginning in the fall of 1978 and ending in August, 1982; the victim described being photographed by the defendant “naked or in various stages of undress” and having been videotaped alone or with the defendant involved in sexual activity; and she reported being shown the photographs and videotapes numerous times by the defendant during her visits to his home, and that she was familiar with the different locations within the home where the defendant stored the material and his method of securing the piles of photographic material with “string or rubber bands.”
The Court of Appeals upheld the trial court‘s finding that the search warrant was defective and that the evidence seized must be suppressed in essence because the passage of time negated an inference of probable cause. For the reasons that follow, we reverse the decision of the Court of Appeals.20
Attendant to the emergence of sexual exploitation of children as a crime of previously unknown proportion,21 inquiry regarding the life cycle of child pornography has been addressed by extensive investigation of the subject. In 1984, a study by a subcommittee of the United States Senate,22 evaluated thousands of documents, the results of numerous personal interviews, and testimony at public hearings and concluded that pornography plays a central role in child molestation.23 The documents examined were arrest reports, victim statements, pedophile24 correspondence, newsletters, child pornography catalogs, films, videotapes and magazines. More than two hundred people were interviewed, including convicted child molesters, por-
Pornography functions for this offender as a method of justification that the behavior is not abnormal, serving not only as a means of contact with others of like interest but as reinforcement for the belief that, because so many others engage in the same activity, it must not be as wrong as society believes. These offenders are frequently victims of child sexual abuse themselves and combat negative feelings of their own victimization by regarding their sexual offenses as an expression of caring for children, rather than the using of their victims to meet personal unsatisfied needs.25
The committee evaluated the phenomena of exhibiting child pornography that we have observed in record review of cases in our own jurisprudence, see, e.g., People v Engelman, 434 Mich 204; 453 NW2d 656 (1990); People v Sundling, 153 Mich App 277; 395 NW2d 308 (1986), lv den 428 Mich 887 (1987); People v Osborn, 122 Mich App 63; 329 NW2d 533 (1982), concluding that pornography is used in connection with child molestation, for arousal and fantasy and as a means of lowering the intended victim‘s inhibitions through peer pressure effects. The committee‘s findings suggest that a reluctant child can sometimes be convinced to engage in sexual activity by viewing other children having “fun” in the activity,26 and that
The subcommittee‘s findings document the basis for the common-sense inference that the life cycle of child pornography may be extensive. The subcommittee concluded that the single most persuasive characteristic of pedophilia is the obsession for, and the collection of, child pornography.29 As one of the leading experts on child molestation testified:
“They (pedophiles) typically collect books, magazines, articles, newspapers, photographs, negatives, slides, movies, albums, drawings, audio tapes, videotapes, personal letters, diaries, sexual aids, souvenirs, toys, games, lists, paintings, ledgers, etc., all relating to children in either a sexual, scientific or social way. Not all pedophiles collect all these items. Their collections vary in size and scope. However, the maintenance and growth of their collections becomes one of the most important things in their life. ... They may hide their collections, move them, or even give them to an-
other pedophile, but they almost never destroy them.“[30] [Emphasis added.]
B
We review the magistrate‘s decision under the standard adopted in People v Landt, 439 Mich 870 (1991). The Court of Appeals in Landt noted that there was a split of authority concerning the applicable standard of review for the issuance of a search warrant. 188 Mich App 234, 240; 469 NW2d 37 (1991). Some panels of the Court of Appeals followed the “abuse of discretion” standard, according deference to the magistrate‘s decision.31 Other panels followed the “substantial basis” standard articulated in People v Gleason, 122 Mich App 482, 489; 333 NW2d 85 (1983), which, while recognizing that “a magistrate‘s finding that an affidavit establishes probable cause is entitled to deference in marginal cases,” essentially embraced de novo review of a magistrate‘s decision.32
Using the standard of review set forth in Gleason, the Court of Appeals held in Landt that the facts in the affidavit were sufficient to establish probable cause to search for the delivered contra-
Search warrants and the underlying affidavits are to be read in a common-sense and realistic manner. ... Inasmuch as the affidavit underlying the search warrant in this case established probable cause as to the contraband that was delivered to the defendant at the address where the search warrant was executed, the magistrate did not err in finding probable cause as to other items incident to drug trafficking.
Thus, appellate scrutiny of a magistrate‘s decision involves neither de novo review nor application of an abuse of discretion standard. Rather, the preference for warrants set forth in Gates, supra, United States v Ventresca, 380 US 102; 85 S Ct 741; 13 L Ed 2d 684 (1965), and Brinegar v United States, 338 US 160; 69 S Ct 1302; 93 L Ed 1879 (1949), 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. In Gates at 236-237, the Court held:
[W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit
... [T]he traditional standard for review of an issuing magistrate‘s probable-cause determination has been that so long as the magistrate had a “substantial basis for conclud[ing]” that a search would uncover evidence of wrongdoing, the
In sum, a search warrant and the underlying affidavit are to be read in a common-sense and realistic manner. Affording deference to the magistrate‘s decision simply requires that reviewing courts ensure that there is a substantial basis for the magistrate‘s conclusion that there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Gates at 238.
C
We turn then to the crux of the inquiry in this case, the difficult question of the degree of certainty that “probable cause” requires. Specifically, we must determine whether a reasonable magistrate could have found a substantial basis to infer that the evidence sought was still in the defendant‘s home six and one-half years after it was last
The threshold inquiry looks at the life cycle of the evidence sought, given a totality of circumstances, that includes the criminal, the thing seized, the place to be searched, and, most significantly, the character of the criminal activities under investigation. 2 LaFave, Search and Seizure (2d ed), § 3.7(a), pp 75-87.
Probable cause to search is concerned with whether certain identifiable objects “are probably to be found at the present time in a certain identifiable place.” 2 LaFave, supra, § 3.7, p 75. Once established, probable cause to arrest, which is concerned with historical facts, is likely to continue indefinitely, absent the discovery of contrary facts. By contrast, it cannot be assumed that evidence of a crime will remain indefinitely in a given place. Thus, “staleness” is not a separate doctrine in probable cause to search analysis. It is merely an aspect of the
Time as a factor in the determination of probable cause to search is weighed and balanced in light of other variables in the equation, such as whether the crime is a single instance or an ongoing pattern of protracted violations, whether the inherent nature of a scheme suggests that it is probably continuing, and the nature of the property sought, that is, whether it is likely to be promptly disposed of or retained by the person
Accordingly, Professor LaFave quotes approvingly Andresen v Maryland:
The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed.35 [See 2 LaFave, supra, § 3.7(a), pp 77-78.]
D
It is settled law that probable cause to search must exist at the time the search warrant is issued, Sgro v United States, supra at 210; People v Siemieniec, 368 Mich 405, 407; 118 NW2d 430 (1962), and that probable cause exists when a person of reasonable caution would be justified in
However, despite longstanding scholarly debate regarding the need for bright-line rules in
To further focus the inquiry regarding the probability of “probable cause” that the evidence sought was still in the defendant‘s possession, we reiterate the core factual representations of the affidavit:38 (1) on April 25, 1989, the affiant inter
Illinois v Gates, supra at 238, holds that a judge is to examine the totality of circumstances to determine whether a “fair probability” exists that evidence of crime will be found. The issue in Gates was whether the affidavit sufficiently demonstrated “probable cause” that the defendants were involved in criminal activity. In rejecting the preponderance standard for probability, the Court relied on the arrest provisions of the Model Code of Pre-Arraignment Procedure which permits arrest “without requiring that at the time of the arrest the guilt of the person to be arrested be more probable than not.” 1 LaFave, supra,
While LaFave would not always employ a more probable than not standard when the uncertainty involves the identity of the person who committed a known crime, he would require a more demanding standard of more probable than not where the question is whether a crime has been committed. However, when the issue is a probability determination with respect to certain specific items being in a particular place, LaFave does not disagree with the Gates majority that probable cause does not require a more probable than not definition of probable cause. LaFave observes that it is a fair statement of the law that the “more probable than not” standard has not been actually applied and that
[t]o the extent such rulings permit searches to be made upon something less than a 50% probability as to any one particular place, they do not appear objectionable. The fact remains that it is unlikely that the privacy of an innocent person will be disturbed under such circumstances. [1 LaFave, supra, § 3.2(e), pp 598-599.]
Other jurisdictions have recognized that the underlying facts of a child sexual assault, when
First, it is not and could not be disputed that the affidavit contained allegations setting forth more than a possibility that criminal activity had been engaged in by a particular individual.42 This case, therefore, does not involve the “slippery slope” of applying probability analysis to multiple arrests where the police suspect that ten persons are guilty of a crime but have no way of distinguishing between them.43 Nor is this a situation in which there is uncertainty about whether a crime has occurred in which more than a fifty percent proba
Second, it is not apparent that there were alternative investigative techniques available to update the probability that the evidence was presently in the defendant‘s possession. Thus, it cannot be concluded that “the magistrate acted outside the zone of reasonableness in concluding that further investigation was not warranted.”44 Additionally, while the interest invaded was most significant, the type of material and the use to which it was put, made it highly unlikely that it would be kept anywhere but in the home.
Third, since possession of the tapes and photographs was not in itself criminal, but, rather, mere evidence of defendant‘s activity, the passage of time without complaint would tend to negate the anxiety that would counteract the demonstrated propensity to retain the material. In this instance, the passage of time might be inversely proportional to the likelihood that the defendant still had the material.
Fourth, unlike the possession of contraband or the situation in which the criminal activity incidentally and sometimes unwittingly creates evidence of crime, where the reasonable inference is that a person will get rid of incriminating evidence, the case at bar involves a situation in which the individual intentionally created evidence of his criminal activity and displayed it over the course of years. Moreover, the evidence was not simply created and used, it was stored with a degree of care indicative of its continuing value to the defendant.
Finally, it is possible to infer that the items
In balancing the interests involved, we conclude that the search was not constitutionally unreasonable. We have found no authority directly on point. However, we are left with the firm conviction that in the facts of this case there were only two possible courses of action, to secure a search warrant or to forgo the possibility of obtaining the evidence. While reasonable people could reasonably disagree with the assessment made by the magistrate, we have not found reason to conclude that in this situation the United States Constitution and common sense are at war. Mapp v Ohio, 367 US 643, 657; 81 S Ct 1684; 6 L Ed 2d 1081 (1961).
This is not a situation in which the government claims that simply because a person has indicated interest in possessing pornographic material he is likely to be in present possession of it. United States v Weber, 915 F2d 1282 (CA 9, 1990). Nor is this a situation in which the government seeks a
We hold only that where suspicion of criminal activity has focused on a specific individual by a standard more probable than not, and it is alleged that the evidence sought was created, retained, and employed in ongoing criminal activity over a four-year period, the magistrate could reasonably conclude that there was a “fair probability” that the evidence would be retained in the residence of the accused.
Affording deference to the magistrate‘s conclusion, we conclude that there was a substantial basis to infer a fair probability that the items still were present. Accordingly, we reverse the decision of the Court of Appeals.
IV
CONCLUSION
In sum, the Legislature intended that the extended statute of limitations set forth in
Therefore, we affirm the decision of the Court of Appeals regarding the statute of limitations issue and reverse its decision with respect to the search and seizure issue. We remand this case to the trial court for proceedings consistent with this opinion.
RILEY, GRIFFIN, and MALLETT, JJ., concurred with BOYLE, J.
CAVANAGH, C.J. (concurring in part and dissenting in part). I agree with the majority that the amended statute of limitations was intended by the Legislature to apply to offenses not barred when the amendment took effect.1 I also agree that the application of the amended statute of limitations does not violate the Ex Post Facto Clauses of the United States and Michigan Constitutions.2
With regard to the validity of the search warrant, I agree with the majority that the proper standard of review of a magistrate‘s decision to issue a search warrant is set forth in Illinois v Gates, 462 US 213; 103 S Ct 2317; 76 L Ed 2d 527 (1983). See also People v Landt, 439 Mich 870 (1991). I also agree that when a warrant contains misrepresentations, the misrepresentations must
I cannot agree, however, with the majority‘s conclusion that the affidavit, comprised of information minimally almost seven years old and potentially over ten years old, was sufficient to establish probable cause to search the defendant‘s home.
The affidavit provided the magistrate with the following facts:
Your affiant is a detective with the Grand Rapids Police Dep‘t. assigned to the Juvenile Division of that department. On April 4, 1989, your affiant received information from Clinton County Protective Services regarding . . . possible sexual assault[s] between Sam Russo as the suspect and [the complainant], age 16, said sexual assaults occurring at various locations within the City of Grand Rapids, Kent County, Michigan, for the past 2 1/2 years.
On April 25, 1989, your affiant interviewed the complainant . . . in her office at the Grand Rapids Police Dep‘t. [The complainant] stated that she would visit the home of Sam Russo every other week-end. She stated further that during those week-end visits she would be sexually assaulted by Sam Russo, said sexual assaults involving co-mutual touching and acts of sexual penetration between herself and Sam Russo. [She] indicated that on various times either before, during or after said sexual assaults Sam Russo would photograph her naked or in various stages of undress. On several occasions video tapes were made of the victim alone or with the suspect involved in sexual activity or naked poses.
[She] stated further that said sexual assaults began sometime in the Fall of 1978, when [she]
was five years of age, and ended in August of 1982 when [she] was 10 years of age. [She] further indicated to your affiant that both the photographs and video tapes were displayed to her by the suspect numerous times during her week-end visits. Additionally [she] indicated that the photographs were stored in different locations, within the home and bound in piles held together by string or rubber bands. Said videos and pictures were observed by [her] at the 526 Livingston address. Suspect Sam Russo is not related by either blood or affinity to alleged victim . . . . [Emphasis added.]
On the basis of the allegations in the affidavit, the magistrate issued a search warrant authorizing the search of the defendant‘s home for pictures and videotapes of the victim.
A careful review of the affidavit reveals that some of its allegations are inconsistent. For example, it initially alleges that the sexual assaults occurred over the last 2 1/2 years and then specifically states that the assaults occurred when the victim was between the ages of five and ten, ending in 1982. The prosecutor admitted at oral argument before this Court that the reference in the affidavit that sexual assaults had occurred for the past 2 1/2 years was a mistake. Thus, the misrepresented allegations must be excluded and the affidavit reevaluated to determine whether probable cause existed.
After excluding the misrepresented facts, what remains is an affidavit that states that sexual assaults occurred between the fall of 1978 and August of 1982. Further, that sometime during this period, the victim was photographed and videotaped and that sometime later the victim observed the photographs and videotapes with the defendant. Finally, that the defendant stored the
Because I believe the modified affidavit did not provide probable cause to search the defendant‘s home, specifically because the allegations were stale, I would quash the warrant. I recognize, however, that many lower federal courts have found probable cause despite substantial gaps between the observation of the evidence and the issuance of the warrant. See, e.g., United States v Greany, 929 F2d 523 (CA 9, 1991) (two years); United States v Rowell, 903 F2d 899, 903 (CA 2, 1990) (1 1/2 years); United States v Freeman, 685 F2d 942 (CA 5, 1982) (seven months); United States v Minis, 666 F2d 134 (CA 5, 1981) (three months);
Two reasons that usually justify such a search are that the evidence sought is of an ongoing criminal business, Greany, or the evidence is of a type that is not ordinarily moved from one place to another, Freeman. Neither of these situations is present in this case. Unlike Greany which involved marijuana cultivation (“an ongoing criminal business of a necessarily long-term nature . . . rather than . . . a completed act,” Greany, p 525), the victim in this case admitted that the assaults ended in 1982. The affidavit does not allege, and it cannot be assumed, that the defendant continued to engage in this type of activity with other victims.6 As expressly stated in the warrant, the search was not for evidence of an ongoing criminal activity but evidence of prior criminal acts with the victim.7
In addition, unlike the Freeman case that involved a search for bank records, generally kept in one locale, the objects of the search in this case were sexually explicit pictures and videos of the victim. A review of the profile offered by the majority suggests to me that this type of evidence is often moved from one place to another. Resorting to the pedophile profile, the majority emphasizes the fact that a pedophile almost never destroys the incriminating evidence.8 The question, of course, is not whether the objects of the search will be destroyed, but whether the objects of the search will be at the place to be searched at the time the search warrant is executed. According to the profile, a tendency of a pedophile with regard to child pornography is to sell, hide, move, or give the collection to another pedophile.9 Thus, because this is the type of evidence that is passed around, it is not the type of evidence that would likely remain at the same location seven years later.
For the reasons stated above, I find no basis for this Court to transmogrify evidence, which the majority itself characterizes as historical and sentimental, into a present basis for probable cause.10 Therefore, I would affirm the judgment of the Court of Appeals.
BRICKLEY, J., concurred with CAVANAGH, C.J.
LEVIN, J. (dissenting). I would hold as a matter of statutory construction, and thus have no need to reach the constitutional issue, that 1987 PA 255, amending the statute of limitations for pros
A legislative intent to make Act 2552 retrospective is neither expressly declared nor necessarily to be inferred from the terms employed.3 Nor has there been adduced any other evidence of legislative intent.
Notes
Notwithstanding subsection (1), if an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense under section 145c or 520b to 520g of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.145c and 750.520b to 750.520g of the Michigan Compiled Laws, may be found and filed within 6 years after the commission of the offense or by the alleged victim‘s twenty-first birthday, whichever is later.
THEREFORE, IN THE NAME OF THE PEOPLE OF THE STATE OF MICHIGAN, I command that you search the following described place . . . and . . . seize, secure, tabulate and make return according to law the following property and things: Picture, Polaroid snap-shots and video tapes of [the victim], dob 6-30-73, either naked or partially clad, and/or involved in any sexual
acts or touchings by other persons or to other persons, cameras, which may have been used to take such picture[s], and undeveloped film which may contain such pictures. [Emphasis added.]
Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it.