PEOPLE v SHERBINE
Docket No. 73179
Supreme Court of Michigan
Argued June 7, 1984. Decided December 28, 1984. Released February 1, 1985.
421 Mich 502
In an opinion by Justice Levin, joined by Chief Justice Williams and Justices Kavanagh and Cavanagh, the Supreme Court held:
An affidavit offered to establish grounds for issuing a search warrant must be based upon reliable information supplied to the complainant from a credible person. In this case, the affidavit failed to satisfy the requirement, rendering the warrant and the search and seizure based on it invalid.
1. Before a search warrant may issue, the law enforcement officer seeking the warrant must establish probable cause to believe that incriminating evidence may be found in a specific location. Generally, probable cause is shown by a sworn affidavit setting forth all the facts known to the affiant through personal observations and hearsay. In Michigan, the affidavit must be based on reliable information supplied to the complain-
2. In this case, the affidavit failed to meet the requirements of informant credibility and informational reliability. There was no allegation that the informant was a credible person; nor did it show that the informant had given reliable information about the telephone conversations. Because the affidavit was deficient, the warrant was invalid, and the tape recordings were properly suppressed.
Justice Brickley, concurring, stated that an affidavit showing probable cause to issue a search warrant must contain affirmative allegations that the person spoke with personal knowledge, but need not contain affirmative allegations with regard to the magistrate‘s finding that it contained reliable information from a credible person, so long as there is some basis for inferring reliability and credibility.
Affirmed.
Justice Boyle, joined by Justice Ryan, dissenting, stated that the fundamental issue in every search warrant case is whether probable cause to believe that the evidence is in the place to be searched has been shown. Since it is the neutral and detached magistrate who must make this decision, not the affiant, the affidavit must allege facts which permit that determination to be made. An affidavit which indicates that the affiant spoke with personal knowledge of the matters contained therein identifies the source of the affiant‘s belief. The rule that although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the evidence was where he claimed it was, and some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable, did not require that the unnamed person be shown to be credible, but rather that the affiant show the magistrate why the information was believable. Informant credibility or reliability is thus a vehicle for demonstrating to the magistrate why the affiant believes the evidence is in the place for which the warrant is sought. A common-sense interpretation of the statute is that it authorizes a warrant to issue on the basis of hearsay informa-
In this case, the tape recordings should not be suppressed. The affidavit contained allegations that the informant spoke with personal knowledge. The combination of the name of the informant, his long-term relationship with the defendant, the number of calls received, and the fact that they had become increasingly detailed in regard to the murder would permit a reasonably prudent person to conclude that a phone call from the defendant would probably include reference to the murder.
OPINION OF THE COURT
1. SEARCHES AND SEIZURES — SEARCH WARRANTS — PROBABLE CAUSE — AFFIDAVITS.
An affidavit offered to show probable cause why a search warrant should issue must be based upon reliable information from a credible person who is affirmatively alleged to have spoken with personal knowledge gained through personal observations or hearsay; the credibility of the informant must be shown by an assertion on the face of the affidavit of facts tending to show credibility, and the magistrate who issues the warrant must additionally be supplied with some of the underlying circumstances supporting the conclusion that the information is reliable (
CONCURRING OPINION BY BRICKLEY, J.
2. SEARCHES AND SEIZURES — SEARCH WARRANTS — PROBABLE CAUSE — AFFIDAVITS.
An affidavit offered to show probable cause why a search warrant should issue must contain affirmative allegations that the person spoke with personal knowledge, but need not contain affirmative allegations with regard to the magistrate‘s finding that it contains reliable information from a credible person, so long as there is some basis for inferring reliability and credibility (
DISSENTING OPINION BY BOYLE, J.
3. SEARCHES AND SEIZURES — SEARCH WARRANTS — PROBABLE CAUSE — AFFIDAVITS.
A search warrant may issue on the basis of hearsay information from an unnamed person so long as the information is reliable or the informant is credible, provided that the affidavit offered to show probable cause why the warrant should issue contains
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and Joseph A. Greenleaf, Chief Appellate Attorney, for the people.
Parker, Adams, Mazur & Matyjaszek, P.C. (by James D. Adams), for the defendant.
LEVIN, J. This appeal presents two separate but interrelated questions regarding search warrant procedure in this state. The first is whether a search warrant based on an affidavit issued in violation of
We conclude that the search and seizure was based upon an invalid search warrant and must be
I
John J. Sherbine, II, was found guilty of first-degree murder.6 His conviction was reversed, and the cause remanded for a new trial because of the receipt in evidence of confessions and admissions that the Court of Appeals found should have been suppressed.7 While the appeal was pending, and subsequent to the reversal of his conviction, Sherbine made several collect telephone calls to Joseph Franklin Bradway, Jr.
These telephone calls began in “late August or early September of 1982” and continued until November of 1983. A number of these conversations were recorded pursuant to a search warrant issued on September 9, 1983, and the prosecution attempted to introduce these tape recordings into evidence at Sherbine‘s trial. The circuit judge, however, granted Sherbine‘s motion to suppress the tape recordings. The Court of Appeals denied the prosecution‘s application for leave to appeal.8 This Court granted leave to appeal.9 We now affirm the circuit court.
It is well established that before a search warrant may be issued the law enforcement officer seeking the warrant must establish probable cause to believe that incriminating evidence may be found in a specific location.10 This showing of probable cause is generally accomplished by a sworn affidavit setting forth all the facts known through personal observations and hearsay to the affiant. In this state, the contents of the affidavit is provided by statute.
The statute provides:
“The magistrate‘s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him. The affidavit may be based upon reliable information supplied to the complainant from a credible person, named or unnamed, so long as the affidavit contains affirmative allegations that the person spoke with personal knowledge of the matters contained therein.”
MCL 780.653 ;MSA 28.1259(3) . (Emphasis added.)
The question presented is whether the affidavit in support of the search warrant satisfied the requirements of the second sentence of the statute. We conclude that it did not.
The affidavit stated:
“D. On the morning of September 8, 1983, your affiant conducted an interview with Joseph Franklin Bradway, Jr. at the Jackson County Sheriff‘s Department with reference to telephone conversations between himself and John Sherbine concerning the murder of LeRoy Earl Crenshaw.
“E. Mr. Bradway related to your affiant that he had
been friends with John Sherbine since October of 1978. That Mr. Bradway started receiving collect telephone calls from John Sherbine in late August or early September of 1982. That during the course of these conversations John Sherbine would, of his own accord begin to discuss various items related to the murder of LeRoy Crenshaw. That Mr. Sherbine has continued to call Mr. Bradway, collect since that time, and in fact, he has called at least 10 times and has discussed the murder of LeRoy Crenshaw on at least half of these occasions. The nature and detail of these conversations has become more detailed and explicit with each succeeding phone call. Mr. Bradway expects to keep receiving telephone calls from Mr. Sherbine. The last telephone call from John Sherbine was received by Mr. Bradway at 1:30 p.m. on September 7, 1983.”
The statute supplements the search and seizure jurisprudence that had been developed by this Court and the United States Supreme Court. The statute provides that probable cause may be developed through the use of hearsay. The leading cases allowing the use of informant hearsay are Aguilar and Spinelli. The statutory provision, enacted as part of a comprehensive codification of search warrant practice and procedure,11 was a codification and expansion of the rule enunciated in Aguilar.
In Aguilar, two Houston police officers applied for, and obtained, a search warrant upon the basis of informant-supplied information. The informant was identified only as a “credible person,” a conclusion that was unsupported by any other allegation or assertion of fact. The balance of the affidavit consisted of conclusory statements that the informant had supplied “reliable information” and that the affiants believed that specified drugs were in a particular location. A search warrant was issued on the basis of the affidavit.
The Legislature, in enacting the statutory provision, codified both requirements of the Aguilar decision. The statute, however, has three requirements, not two. The first is that the affidavit, when based on informant-supplied information, must contain affirmative allegations that the informant spoke with personal knowledge. The second is that the affidavit must set forth facts from which one may conclude that the informant is “credible.” Because “credible” modifies the entire phrase “named or unnamed,” the statute requires that proof of the informant‘s credibility must be presented in the affidavit whenever it is based on informant-supplied information. The naming of the informant is a factor to be considered in assessing credibility; however, it is not disposi-
An informant‘s credibility must be shown by an assertion of facts tending to support a finding of credibility. While proof of credibility may be accomplished in different ways,13 facts tending to show credibility must appear on the face of the affidavit. Here, no facts showing Bradway‘s credibility were set forth in the affidavit.
The courts have consistently held that the issuing magistrate must be supplied with “some of the underlying circumstances supporting the conclusion that the person supplying the information is reliable.”14 The emphasis upon credibility is strong.15
Oregon also has codified its procedures for the issuance of search warrants. In State v Russell, 293 Or 469; 650 P2d 79 (1982), the Supreme Court of Oregon suppressed evidence because of noncompliance with its statute.21
The statutory violation here is clear. The statute requires proof that the informant who supplied the information be credible. The affidavit here failed to satisfy this requirement. The evidence must therefore be suppressed.
Affirmed.
WILLIAMS, C.J., and KAVANAGH and CAVANAGH, JJ., concurred with LEVIN, J.
I do not agree, however, that that standard has been met in this case. The statute requires that an affidavit relating hearsay contain “affirmative allegations that the person spoke with personal knowledge of the matters contained therein,” but does not require such “affirmative allegations” with regard to the magistrate‘s finding that the affidavit contained “reliable information from a credible person.” However, in this case, there is no information whatsoever, outside of the four corners of the informant‘s allegations, from which his credibility or the reliability of the information he supplied can even be inferred. There is no question that the information, if reliable (and that can be supplied by either some extrinsic validation of some of the information by the affiant or by some assertion by the affiant of the informant‘s credibility), would supply more than the requisite probable cause.
Because I think neither the constitutional nor the statutory requirements were met, I concur with the suppression of the evidence resulting from the use of the search warrant.
BOYLE, J. I dissent.
The Michigan statute,
The fundamental issue in every search warrant case is whether probable cause to believe that the evidence is in the place to be searched has been shown. Since it is the neutral and detached magistrate who must make this decision, not the affiant, the affidavit must allege facts which permit that determination to be made. Giordenello v United States, 357 US 480; 78 S Ct 1245; 2 L Ed 2d 1503 (1958). An affidavit which indicates that the affiant spoke with personal knowledge of the matters contained therein identifies the source of the affiant‘s belief. Id. The rule of Aguilar was simply that “[a]lthough an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v United States, 362 US 257 [80 S Ct 725; 4 L Ed 2d 697 (1960)], [in such cases] the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the [evidence was] where he claimed [it was], and some of the underlying circumstances from which the officer concluded that the informant ... was ‘credible’ or his information ‘reliable.‘” 378 US 114 (emphasis added; citations omitted). The requirement was not that the unnamed person be shown to be credible as that term is used in a courtroom, but rather was a requirement that the affiant show the magistrate why the information was believable.
Informant credibility or reliability is thus a
For example, where the information provided was that an unnamed informer had previously provided correct information on 200 occasions, this information would be both credible and reliable. The construction of the statute advanced by Justice LEVIN would require that in every case, whether named or unnamed, proof of the informant‘s credibility must be shown. This construction would take us to the quite remarkable conclusion, that if one of the justices provided the police with information that he or she had received a series of threatening phone calls and expected to receive another, a magistrate would not be warranted in issuing a warrant unless the affiant officer also provided proof that the justice is credible and that the information is reliable. It would also prevent issuance of a search warrant where the affiant is communicating incriminating statements made to him by a third party. If the communication is, “I will have the drugs at my home tonight,” this is surely reliable information, but I doubt that the speaker could be independently shown to be a credible person.
To the extent that the statute is ambiguous, I can see no basis for construing it in a manner which would require a greater showing than any decision of the United States Supreme Court has
Applying this analysis to the facts of the warrant in the instant case, in light of the ultimate issue, that is, has the affiant demonstrated why he believes the information will be where he says it is and is it reasonable to so believe, I conclude first that the affidavit does contain allegations that the provider of the information spoke with personal knowledge. He was the recipient of the phone calls and heard the conversations. Second, the combination of the name of the informant, his long-term relationship with Sherbine, the number of calls received, and the fact that they had become increasingly detailed in regard to the murder of LeRoy Crenshaw (a murder for which defendant had been once convicted, and was then awaiting retrial)1 were such as to permit a reasonably prudent person to conclude that a phone call from Sherbine would probably include reference to the murder.
Finally, even were I to conclude that the statute should be read as requiring a third requirement, I would not conclude that suppression is required. The affidavit meets the test set forth in Aguilar, supra, or Illinois v Gates, 462 US 213; 103 S Ct 2317; 76 L Ed 2d 527 (1983).
I cannot conceive of a reason why we should apply the exclusionary rule to the supposed violation of a statute where the affidavit would pass constitutional muster under either
RYAN, J., concurred with BOYLE, J.