People v. Sloan

450 Mich PEOPLE v SLOAN (Calendar 17). Argued May Docket No. 100580. No. Decided 22, 1995. August Rehearing post, 1212. denied charged L. Robert Sloan was in the Detroit Recorder’s Court with vehicle, manslaughter operating with a motor a motor vehicle liquor intoxicating causing while under the death, of influence a court, driving. Morrow, J., and felonious The Bruce U. suppress denied the defendant’s motion blood test results pursuant Appeals, obtained Gbibbs, P.J., to a search Court warrant. The Reilly JJ., Brown, and and T. L. in reversed an curiam, opinion per holding justi that the trial court was not relying magistrate’s testimony on fied regarding after fact finding off-the-record statements in that the factual sufficient, basis the warrant and was concluded that because cause, probable the affidavit failed to establish the search warrant was invalid and the blood test results should have (Docket 168967). appeal. people been excluded No. The opinion by joined an Cavanagh, Justice Chief Justice Supreme Brickley, Mallett, and Justices Levin and Court held: reviewing aWhen court assesses whether cause has 780.653; 28.1259(3), been established under MCL MSA for the warrant, reviewing may issuance of a search court not unrecorded, sworn, yet that, testimony consider oral in addition affidavit, presented to an was to the before the issue, alone, warrant was issued. The at affidavit considered provide support failed a substantial basis a conclusion Thus, cause existed. the search warrant was pursuant invalid. Because blood test results obtained to the warrant constitute evidence obtained violation of MCL 780.653; 28.1259(3),they MSA be must excluded. Michigan provides 1. The Constitution search warrant may only showing probable cause, supported be issued on a 28.1259(1X1) 780.651(1); oath or affirmation. MCL MSA 28.1259(3) 780.653; require MCL cause be shown the form of an affidavit ato who will decide whether to issue a warrant on basis Reviewing affidavit’s contents. courts must read search war- underlying rants affidavits in a common-sense and realistic v Sloan manner, magistrate’s pay determina- and must deference to reviewing probable cause court must ask tion that existed. reasonably person only cautious could have con- whether finding of cluded that there was a substantial basis for the probable cause. specifically must on facts and circum- 2. The courts focus magistrate’s support probable cause determi- stances that the nation, presented may only facts that were consider those Moreover, magis- magistrate. they the must ensure that to the facts, merely unsup- not trate’s decision is based on actual minimum, ported of the affiant. At a a sufficient conclusions present a facts and circumstances on which affidavit must independent probable magistrate rely cause can to make an case, plainly pro- In this affidavit failed to determination. the probable any cause to sustain a conclusion that vide basis existed. reviewing magistrate’s probable assess a 3. When courts sworn, determination, yet they may unre- not consider cause corded, affidavit, testimony, contemporaneous an that with oral reviewing probable Requiring courts to to cause. is offered show significant testimony impose and unnec- would a consider such reliably essary ability assess whether burden on their to requirement probable satis- for cause had been constitutional Rather, probable cause on to find fied. additional facts relied affidavit, i.e., incorporated they must be into an must be recording may presented The under oath and must be recorded. forms, notes, including video or audio take various handwritten transcripts testimony. tapes, of Because or formal or informal probable of the search warrant this cause for the issuance 780.653; MSA not under MCL case has been established invalid, 28.1259(3), test warrant was and the blood the search pursuant to the warrant must be excluded. results obtained proceedings. and remanded for further Affirmed Riley joined by Weaver, dissent- Justices Justice ing, stated: majority’s holding it results from a The is flawed because proper misapprehension cause deter- of the focus of a evaluating validity warrant. Where of a search mination source, is a and that source a warrant is based on a named Thus, officer, presumptively police the source is reliable. permit allegations only contain affirmative affidavit need personal magistrate that the source had knowl- to conclude case, alleged. appropriate edge In this under an of the facts magistrate provided presented analysis, a to the the affidavit justify support finding to issuance a basis to op Opinion the Court authorizing of the search warrant withdrawal of the defen- testing. dant’s for blood The statements in the affidavit that the operating defendant had a been vehicle was involved in shortly fatal accident before the affidavit was to the appeared and that the defendant to be intoxicated provided adequate justification to conclude sample that evidence of intoxication would then be in a found necessary support all defendant’s blood. That is is finding cause. Assuming arguendo present that the written affidavit in the defective, permissible supplement case is it should be sworn, unrecorded, with affidavit oral statements the affiant. Legislature imple- meant the search warrant statutes to with, protections stringent ment than, commensurate but no more Amendment, Fourth which numerous federal courts supplementation have held satisfied oral aof deficient affidavit. Application exclusionary any rule to technical viola- may tion of the search warrant statute that have occurred present exclusionary case is unwarranted. The rule is purpose, any intended serve a deterrent and loses useful applied force and effect to when technical errors that do not negligent conduct, serving only rise to the level of or wilful to deprive probative the trier of fact of relevant and evidence. The Legislature amending swift reaction of the in the search war- Supreme People rant statute after the in Court’s decision Sherbine, (1984), repudiation 421 Mich 502 evinces view in Sherbine evidence obtained violation of the statute should be excluded. 484; (1994) App 206 Mich 522 NW2d 684 affirmed. Frank J. Kelley, Attorney General, Thomas L. Casey, O’Hair, John D. General, Solicitor Pros- A. ecuting Attorney, Timothy Baughman, Chief, Research, Training Appeals, for the people.

Thomas V. Wilhelm for the defendant. J. This is an interlocutory appeal Cavanagh, arising from a denial of the defendant’s motion to suppress pursuant blood test results obtained to a general search warrant. The issue is the establish- v Sloan Opinion op the Court probable ment of MCL one of first for search cause warrants under 28.1259(3). specific 780.653; MSA issue is

impression Michigan: for When a re- viewing probable court assesses whether cause has been established for the issuance of a search war- may reviewing yet rant, unrecorded, sworn, court consider testimony that,

oral in addition to an presented affidavit, was to the before he issued the warrant? We are also asked to affidavit, determine whether the instant consid- provided support alone, ered a substantial basis probable a conclusion that cause existed. reviewing We hold that when a court assesses whether the court cause has been established reviewing warrant, of a issuance search may yet sworn, unrecorded, not consider oral testimony that, affidavit, addition an was to the he before issued the affidavit, warrant. We also hold that the instant provide alone, considered failed a substantial support basis to conclusion existed.

Because we hold that cause was not 780.653; this under established case MCL 28.1259(3), we also conclude that the search war rant invalid is and that test blood results pursuant obtained suppressed. to the search should warrant be Appeals The Court of decision af (1994). App 484; firmed. 206 Mich 522 NW2d 684 I. PACTS AND PROCEEDINGS present proceedings To the relevant facts and we part, Appeals opin- borrow, in from the Court of ion: 13, On March was involved defendant fatality.

an a automobile accident resulted in Mich. Opinion of the Court passenger Defendant and injured his were hospital. hospital, taken to the While at a sample pursuant blood was drawn from defendant to a search warrant. The affidavit on which the pertinent warrant part: was based stated in p.m. (2340 hrs) "On 3-13-93 on or about 11:40 operating Robert Leonard Sloan a vehicle in the Southgate City of Pennsylvania area of & [the] appears Walter. Collision & occurred Robert Leo- intoxicating liquor, nard Sloan under influence of transported Wyandotte Hospital & Medical Cen- Request sample ter. nard blood be taken. Robert Leo- causing Sloan involved in accident death.” subsequently Defendant was arrested and bound charges manslaughter over on with a motor vehicle, 750.321; 28.553, MCL operating motor vehicle while under the influence of intoxi- cating death, liquor causing 257.625(4); MCL 9.2325(4), MSA 752.191; driving, and felonious MCL court, MSA 28.661. In the trial defendant suppress test, moved to the results of the blood arguing that the affidavit was insufficient because allege it did not on facts which could be based. The trial court parties allowed the to the warrant trate had relied magistrate officer about testimony take the of the who issued to determine magis- what facts the upon issuing the warrant. The testified questioned that he had App defendant’s condition. [206 485-486.] stated: I always question regarding specif- the witnesses icity charge; if any sobriety there were field tests, which I recall there were not because the person injured was and had been transferred to hospital. inquired I specifically as to the condition that led them drinking to believe that had been in- volved, specifically speech, and smell of intoxi- cants, recall, eyes. condition of I As he was in a condition that speak. he was not able to I As People v Sloan Opinion op the Court recall, that strong there was a odor of intoxicants eyes, recall, and his injured which were Ias were important the, know,

not an they factor you as whether glassy were or not I because recall he re- injuries. ceived believe, And I that, in addition to there were me, statements related operator being about him vehicle, of the passenger from a had been made to them [sic]. was, Also that there I gallon believe it was a or gallon a half of Jack Daniels in the vehicle itself. The officer related to me investigating that the officer had felt that there drinking had been in- upon volved based strong odor of intoxicants emanating from the mouth of Mr. Sloan. upon And representations, based those I issued a warrant for drawing the search and of his blood. At the suppression hearing, the affiant officer also regarding testified his recollections of what he had orally stated to pre- when he sented the application for the warrant. The officer testified that he had told the there had been evidence of the smell of intoxicants speech. slurred In pertinent part, the officer stated: Q. you Tell us what remember. A. Judge in; swore me asked me did the

subject appear to strong intoxicants, have a odor of speech, slurred are I that’s all can recall. Those questions the two I can recall.

Q. you How did questions? answer those Yes, A. he did. I yes—affirmative answered questions. both Q. you Judge So told the there was evi- dence of the smell of intoxicants and slurred speech? Yes,

A. sir. The Court of Appeals continued: Mich Opinion of the Court procedure The trial court noted used case, this magistrate officer, where the warrant was issued after the questioned read the affidavit and oath, under followed the trial court’s taking testimony magistrate, was not ideal. However, the trial court denied defendant’s motion suppress App blood test results. [206 486.] reversed, The Court Appeals holding that trial court justified "was not in relying on the magistrate’s after-the-fact testimony regarding off- the-record in reaching statements the conclusion that the factual basis for the warrant was suffi- cient.” 206 App 487. The Court concluded that cause, the affidavit failed to probable establish and consequently, the search warrant was invalid and that the blood test results should have been excluded. granted

This Court prosecutor ap- leave to (1995). peal. 448 Mich 851 We now affirm the Appeals Court of decision.

II. OF SUFFICIENCY AFFIDAVIT Michigan The provides Constitution search warrant1 may only issue on a showing of indicated, general probable As issue before the Court is dissent, dicta, determinations for search warrants. The indicates that "a seizure of blood without a warrant incident to an arrest on probable permissible cause” is under the Fourth Amendment. Post at description unduly interpretation 188. We note that that is an narrow Supreme of what subject. the United States Court has said on the California, 757; 1826; Schmerber v 384 US 86 S Ct 16 L Ed 2d 908 (1966), Supreme the United States Court indicated that a defendant compelled against could be his towill have his blood tested for alcohol (1) only content had been the where three conditions had been met: the defendant (2) lawfully taking blood, arrested before the at the time sample sample was taken there was a "clear indication” that the evidence, (3) exigent would disclose relevant and circumstances were shown to exist. appear It does not that all these conditions were met in this case. v Sloan op Opinion the Court cause, supported by oath or affirmation. houses, person, papers possessions

every person shall be secure from unreasonable searches and seizures. No warrant any search place person or to any things seize or shall issue them, without describing nor without cause, supported by oath or affirmation. [Const art § 11.] Implementing mandate, this constitutional MCL 28.1259(1)(1) 780.651(1); MSA 780.653; MCL 28.1259(3) require cause be shown in the form of an affidavit to a magistrate who will decide whether to issue a warrant on the basis of the affidavit’s contents.

When an affidavit is made on magis- oath to a trate authorized to issue warrants in criminal cases, and the grounds affidavit establishes issuing pursuant act, a warrant magis- this trate, if he or she is probable satisfied that there is search, cause for the shall issue a warrant house, search building, or other location or place where property thing or to be searched 780.651(1); and seized is situated. MSA [MCL 28.1259(1)(1)(emphasis added).] magistrate’s findings

The proba- of reasonable or ble cause shall be based on all the facts related The record indicates that the defendant was not arrested until after the blood was taken. The record before us not confirm does that there was cause to arrest or that there was a "clear indication” obtained, improper that relevant evidence would be and it would be without, minimum, for this Court to decide these issues at a further briefing parties. Finally, convincingly from the it would be difficult to argue "might reasonably that the officer in this case have he believed emergency, delay necessary was confronted with an in which the warrant, circumstances, obtain a tion of under the threatened the destruc- evidence,” Schmerber, 770, supra at because the officer fact pursued getting a warrant. 168 450 Mich 160 Opinion of the Court her.[2] within the affidavit made before him or 28.1259(3)(emphasisadded).] [MCL780.653;MSA reviewing magistrate’s When courts assess a conclusion that existed, cause to search apply such courts the standard of review set forth People Russo, in (1992). v 584; 439 Mich 487 NW2d 698 reviewing

The standard instructs courts underlying that "a search warrant and the affida- vit are to be read in a common-sense and realistic Reviewing manner.” Id. at 604. courts must also pay probable magistrate’s deference to a determination that "requires cause existed. This deference reviewing only the ably court to ask whether a reason- person

cautious could have concluded that finding there was a 'substantial basis’ for the quoting 603, cause.” Id. at Illinois v Gates, 527 236; US 2317; 103 S Ct 76 L Ed 2d (1983). reviewing apply

When courts the standard from they specifically Russo, must focus on facts and support magistrate’s proba- circumstances that Reviewing may ble cause determination. courts only consider those facts that were magistrate. Aguilar Texas, 112; 378 US (1964). 1509; S Ct 12 L Ed 2d Moreover, reviewing magistrate’s courts must ensure that the merely decision is based on actual facts—not remaining portion 28.1259(3) 780.653; provides: of MCL may upon The affidavit supplied be based information to the complainant by person a named or unnamed if the affidavit following: contains 1 of the (a) person named, allegations If the is affirmative from which magistrate may the sonal person spoke per- conclude that with knowledge of the information. (b) person unnamed, allegations If the affirmative from magistrate may person which spoke conclude that the with personal knowledge of the information and either person unnamed is credible or that the information is reliable. People v Sloan Opinion op the Court conclusions of the affiant. of the main pur- One poses procedure of the application warrant is to have a magistrate neutral and detached determine whether This purpose exists. can- not be if magistrate adopts achieved simply unsupported conclusions affiant. Accord- minimum, at a ingly, sufficient affidavit must present facts and on which a magis- circumstances trate can to make an rely independent cause determination.

These are concepts throughout well established In People Effelberg, v Michigan case law. 220 Mich 528, 531; (1922), explained: 190 NW 727 we It was not for but for the [the affiant] determine whether there was cause to

justify issuing the search warrant. His statements are Ins expressly and conclusions have no moré force than if stated, on information belief. Affiant should have stated to the on oath or circumstances, any beliefs and affirmation the facts and if him, were known to which induced stated. conclusions Rosborough, 387 Mich Similarly, 199; (1972), NW2d we emphasized: "The affidavit must contain facts within the knowledge mere affiant, distinguished as from or An conclusions belief. affidavit made on

information and belief is not sufficient. The affida clearly vit should set forth the facts circum knowledge person stances ing within mak it, grounds applica which constitute the tion. The facts should be stated distinct aver ments, and must be such as in law would make complaint. out a cause of It is not for the affiant to draw his own inferences. He state must matters drawing [Quoting justify which of them.” (2d Gillespie, Michigan Criminal Law & Procedure ed), § 868, p (Emphasis original.) 1129. Accord 170 450 Mich 160 Opinion op the Court Sherbine,

People 502, 511, 16; v 421 Mich n 364 (1984); Warner, People 657, NW2d 658 v 221 Mich 659; (1923); 192 NW 566 People Knopka, v 220 540, 544; Mich (1922); Landt, 190 731 People NW v App 241; 188 (1991), 37 NW2d rev’d grounds 870; on other 439 Mich 475 NW2d 825 (1991); People Zoder, 118; v App 15 Mich (1968).][3] NW2d 289 Zoder, the Court of Appeals explained that a judicial abdicates his function regard- ing search warrants when he only accepts affiant’s conclusory statements: stating

The vice of a "mere conclusion” and in failing to underlying state the upon circumstances which the conclusion is based is that without a statement of underlying magis- circumstances the accept trate must the inferences drawn affiant rather than independent make his own evaluation. at [Zoder 121.] presented When with affidavits that wholly con- sist of the unjustified affiants assertions or infer- ences, Michigan reviewing courts have consistently held that the affidavit is fatally deficient it because could not provide any basis to support magis- trate’s conclusion that there was cause to 3Likewise, Supreme the United explicitly recog States Court has nized that circumstances: cause determinations must be based on facts and Amendment, "Under may the Fourth properly an officer not private

issue a dwelling warrant to search a he unless can find probable cause therefor from facts or circumstances to him under oath or affirmation. Mere affirmance of belief or suspicion quoting enough.” [Aguilar Texas, supra is not at States, 41, 47; 11; Nathanson v United 290 US 54 S Ct (1933) (emphasis original).] L Ed 159 v Sloan Opinion Court Sherbine, search. See Rosborough, Knopka, Effel- Landt, berg, and Zoder. these

Applying principles to the instant affida vit, we find the affidavit plainly failed to provide any basis to sustain a „conclusion that probable cause existed. The "ap affidavit states: pears Robert Leonard Sloan under influence of liquor . . intoxicating . .” We consider this state ment to be opinion a mere conclusion or affiant. The affidavit not does include any facts support this or opinion. conclusion such Without facts, it be impossible would for the magistrate to have independently concluded that there prob was sum, able cause search.4 In we hold that the to agree police "presumptively We with the dissent a that officer is a source,” post magistrates give reliable at and that are entitled to relatively posed weight supplied by op more to information an as officer supplied However, by layperson. to information a we differ with effectively ignores legal that, principle the dissent insofar as it ultimately, an the may only upon magistrate’s—not search warrants issue a officer’s—probable magistrates cause determination. If are fulfill to judicial obligation independently their probable to that there is determine. search, magistrates give dispositive cause to the cannot weight observation, opinion. reiterate, conclusory to an officer’s or To provide magis there must be trates to or facts that a circumstances basis for probable search; that conclude there is cause to mere conclusory enough. affirmance of a observation is not affidavit, The information related in instant the with combined appropriate given officer,simply deference because the an affiant was provide magistrate making to failed independent the awith factual basis for an probable determination that cause existed. The informa- illuminating tion in the said it is affidavit no more if than the officer had “appears operating Robert Leonard Sloan to have been a motor intoxicating liquor causing vehicle while the under influence 9.2325(4).” pursuant 257.625(4); death reason that MCL to MSA Por same activity that mere conclusion criminal would need magistrate indepen- further facts and to circumstances enable a to cause, dently affidavit probable summary find observations the instant required support. deficiency further factual The in the in- plain magistrate affidavit stant compelled is made the fact that felt inquiries regarding further make relevant facts and making probable circumstances before his cause determination. Con- contention, trary regard less the magistrate obviously to the dissent’s not did orally gained inquiries related facts from these as "need- 202): supporting (post magistrate’s testimony details” at at supplemental hearing suggested that the on relied orally related facts to find cause. 450 Opinion of the Court a substantial basis provide failed to affidavit .5 cause existed that support a conclusion OF AFFIDAVIT WITH SWORN III. SUPPLEMENTATION YET TESTIMONY UNRECORDED basis argues that a substantial prosecutor that magistrate’s conclusion for the the affidavit can be identified when existed sworn, with the affiant’s conjunction considered unrecorded, pre- the affiant yet testimony contemporaneously with sented to the prosecutor insists Specifically, the affidavit. sworn, unrecorded, yet testimony the affiant’s support and circumstances provides the facts in the affidavit that "Robert Leo- the conclusion influence of intoxicat- [appears] nard Sloan under . . . .” ing liquor argument we must prosecutor’s

To evaluate the reviewing may rely courts on first decide whether sworn, unrecorded, when yet such oral statements assessing magistrate’s probable cause determina- indicated, impres- tion. As this is an issue of first Michigan.6 reviewing sion for We hold when deficiency, In addition to this we note that the affidavit also 28.1259(3) 780.653; provisions regarding infor violated MCL mants. See note 2. information that he related in the affidavit from an officer who was present the affiant the affidavit was not based affiant should have adhered to the out MCL erred record, According to the the affiant received the conveyed information to at the accident scene and who through a radio transmission. Because the information personal knowledge, on the affiant’s requirements for informants set 780.653(a) 28.1259(3)(a) (b). (b); and The affiant altogether any when he omitted indication in the affidavit that presented actually had been the information that he in the affidavit person. supplied by another contention, Contrary precise to the defendant’s issue here was Warner, Warner, supra. we held that the not affiant could not later stances that were known to the affiant but were not included supplement and circum the affidavit with facts within However, summary the factual in Warner did not the affidavit. had been disclose whether the additional facts and circumstances People v Sloan Opinion of Court magistrate’s probable courts assess cause deter- they may yet mination, sworn, not consider unre- testimony contemporaneous that, corded, oral with magistrate affidavit, an probable is offered to the to show primary holding cause. Our reason for so requiring reviewing our is consider belief that courts to yet testimony sworn, unrecorded, oral impose significant unnecessary would bur- ability reliably den on their constitutional to assess whether the

requirement probable for cause had been satisfied.

Requiring reviewing sworn, courts to consider yet testimony sig- unrecorded, oral would exact a nificant on burden such of courts because evidentiary procedure. risks in the If inherent reviewing had test courts to cause deter- yet sworn, unrecorded, on minations basis of testimony, oral such courts would be forced regularly supplemental hearings conduct in order develop yet sworn, unrecorded, a record of the testimony allegedly conveyed oral that was to the magistrate. and the affiant would testify regarding have to their recollections purportedly what was warrant was said at the time

sought, and the would explain have to be able which statements he relied on to determine that cause existed. problematic procedure that, What is with the about this is passage time, the memories of the magistrate may affiant and the become faded and types possibility risks, confused. Given those intentionally untruthful recollections also arises. We find that the constitutional

requirement simply important too to be sub- jected evidentiary hazards—particularly to such were, presented they magistrate, and, they to the if the manner in which i.e., unsworn, presented, were sworn or recorded or unrecorded. 450 Mich Opinion of the Court aby be avoided easily could when such hazards be needed facts any additional requirement regard, In this we incorporated into an affidavit.7 Brennan expressed Justices agree by with view Supreme Court of the United States and Marshall in inherent highlighted the difficulties they when determina- that allows procedure unrecorded, sworn, oral yet tions to be based on testimony: right require- created The substantive hardly full ment of sweep assuring meaningful cause is accorded procedural means of without an effective determination review of a issuing magistrate of the existence of prepared on a record after fact cause. Reliance right. It is impairment a hazard of involves for this reason that some States have imposed the

requirement contemporaneous . . . of a record. judicial procedure anomaly "It is to at- an magistrate tempt judicial to review the act of a upon up issuing a record made a search warrant partially by testimony in the wholly or oral taken reviewing long court after the search warrant was upon the issued. Judicial action must be reviewed judicial record made at or before the time that the performed. validity judicial act was cannot be made to action depend upon the recalled facts memory time by fallible human at a somewhat judicial removed from that when the determina- tion was made. This record of the facts particular need take no form. complaint, may consist of the sworn The record affidavits, testimony or of taken short- sworn thing and later filed .... The essential is hand prior recognize to recall We in a trial witnesses are asked and, thus, testifying when the risk for statements all the time However, imprecise memories exists in that context as well. different, in that the or affiant search warrant situation opportunity in a sworn has a realistic recording to memorialize statements Hence, the risk time the statements are first made. at the situation does not have of inaccurate memories to the search warrant 175-177. eliminated. See discussion below at exist and could be v Sloan op Opinion the Court proof permanent

that made a ted to the be reduced to form and part may of the record which be transmit- reviewing court.” [Christofferson Washington, 1090-1091; 855; 393 US 89 S Ct (1969) (Brennan, J., L23 Ed 2d 234 dissenting certiorari), from the Court’s denial of dowski v quoting Glo- State, 265, 271-272; 196 Wis 220 NW 227 (1928).] The evidentiary problems that arise when re- viewing courts have to on rely testimony after the fact concerning statements off the record about facts showing allegedly probable cause are differ- ent in kind from any problems evidentiary may arise in connection supplementation with the Mitchell, procedure we sanctioned in People v 364; (1987). Mitchell, NW2d 798 In affidavit, affiant had not signed the and while finding that this error made the search warrant invalid, presumably we decided to supple- allow a mental hearing at which magistrate could testify regarding whether the affiant had taken an oath when the affidavit presented. was The basic differ- ence between supplemental hearing authorized in Mitchell with the type supplemental hearing that occurred in this case lies in the nature of the testimony sought to be developed during the hear- ings.

Specifically, type of testimony sought in the Mitchell situation is much less complicated than the type of testimony sought in hearings con- cerned with oral statements about facts and cir- cumstances offered to show cause. Clearly, risk of or confused memories is faded slight when the sole at inquiry hearing is whether an affidavit was under oath. In contrast, the risk of faded or confused memories is greater much when inquiries hearing at development consist of the of numerous facts 450 Mich Opinion op the Court circumstances needed to establish that cause to search existed at the time that the war- addition, sought. rant was the testimony sought in the hearing latter would supplement be used to affidavit, the content of the and would be used to verify the basis of the probable cause determina- tion, thereby making the risk of flawed memories in that context significant. all the more Because of significant problems, evidentiary we will not approve using a Mitchell-type remand to rehabili- tate an affidavit that is deficient because it fails to include sufficient facts and circumstances evidenc- ing probable cause.

The present case illustrates the dangers inher- ent in allowing magistrate to base his determina- probable tions of cause on oral statements not embodied the affidavit. When magistrate’s testimony supplemental from the hearing is com- pared with the officer’s .testimony from the same hearing, a discrepancy emerges regarding whether the officer told the magistrate that the defendant was actually slurring speech. his The officer twice acknowledged that he had Judge "told the that there was evidence of the smell of intoxicants and speech.” However, slurred a fair reading of the magistrate’s testimony indicates that the defen- dant’s injuries from the accident rendered him physically unable to talk. magistrate The testified at the hearing: recall, I "As he was in a condition that he was not able to speak.”

Further confusion exists concerning the magis- trate’s reference at the hearing to evidence of a bottle of Jack Daniels being present in the defen- dant’s vehicle at the time of the accident. The magistrate probable testified that his cause deter- mination was part based in on the affiant’s oral v Sloan Opinion op the Court representation gallon there was "a or half gallon Jack Daniels in the vehicle itself.” problem portion magistrate’s with this testi- mony is that the first time that evidence bottle of Jack Daniels was discussed was at preliminary hearing magis- that occurred after the trate issued the warrant and in front of the same magistrate who issued the warrant. These inconsis- tencies the brief taken at testimony the instant hearing demonstrate the very real burden review- ing courts would have face order to reliably probable assess a cause determination is sworn, unrecorded, based on yet statements. regard We significant as the fact these evidentiary hazards could be if easily averted re- viewing courts were limited to the permanent record of sworn evidence to a at the time that requested. warrant is If a magistrate determines that an affidavit is insuffi- cause, cient to establish probe free to the affiant concerning additional facts that might show that cause exists. We want to make clear that encourage we such conscientious and thorough investigations on the However, part magistrate. of a in order to ensure that a reviewing court will have a trustworthy basis to assess whether the additional facts estab- cause, lish we hold that additional any facts relied on to find probable cause must be incorporated otherwise, into an affidavit. Stated the additional facts must presented be under oath and must be recording recorded.8 The take may forms, notes, various including handwritten video- 8 printed An affidavit is defined as: "A written or declaration or facts, voluntarily, by statement affirmation of the made and confirmed the oath or it, party making person having taken a before authority to administer such oath or affirmation.” Black’s Law (6th ed), p Dictionary 58. 178 450 Mich 160 Opinion op the Court or or audiotapes, formal or informal transcripts of 9 testimony.8

What is critical is that the additional informa- tion be under oath and simultaneously permanent made a part of the record. When these taken, steps are reviewing «courts will have the ability to meaningfully assess the cause determination and without the needless risk of confused or faded coming memories into play. We further note that having permanent and sworn record of the submitted evidence will facilitate the magistrate’s preliminary inquiry regarding whether cause existed. Relying on such a record, magistrate could better "judge for him- self persuasiveness of the precise facts relied on to show United States v . . . .” Anderson, (CA 1971). 453 F2d

A requirement that additional information be incorporated into the affidavit would cause only minimal inconvenience for the and the affiant. While time may be of the essence many situations, warrant we believe that there would always enough be time to correct and enlarge an affidavit with needed additional facts. As men- tioned, handwritten notes made on the face of the affidavit and by attested the affiant would be a satisfactory method of incorporation. Because of the ease with which the incorporation could be accomplished, we conclude that the evidentiary sworn, hazards associated unrecorded, with yet statements are completely unnecessary and can be effectively avoided the search warrant context. In contrast to the inconvenience minimal associ- example, procedure For Naples this Court commends the used Maxwell, (SD Supp Ohio, 1967), 271 F grounds rev’d on other (CA 6, 1968), magistrate, F2d 615 tional testimony, appended eliciting in which the after addi necessary requesting information from officer oral transcript testimony regarding the affida vit before its execution on oath the officer. People v Sloan 179 Opinion of the Court

ated with an incorporation into the affidavit pro- cedure, a procedure under probable which sworn, determinations could be based on yet unre- corded, oral testimony greater would result hardships problems. and further example, For procedure put latter would significant strain on judicial resources: more than likely, every time an affidavit failed to set forth adequate facts and probable cause, circumstances to establish review- ing courts would have to hold supplemental hear- ings to determine whether any oral testimony relied on by was sufficient to show Moreover, sworn, cause. allowing yet un- recorded, oral testimony to rehabilitate a deficient affidavit would undermine Michigan’s firmly estab- lished affidavit requirement for warrants. That subversion in turn encourage would sloppy police work when it came to gathering facts and circum- stances to show cause to search. To avoid these types results, of undesirable we disavow procedures that would reviewing allow courts to sworn, rely unrecorded, on yet oral statements magistrate’s assess a probable cause determina- tion. position sworn,

Our regarding unrecorded, yet oral testimony allegedly showing probable cause support finds approach taken by federal courts asked to review the validity federal search warrants10 in light of the Fourth Amend- 41(c). ment and FR Crim P The Fourth Amend- ment is similar Michigan Constitution’s provision11 search and seizure insofar as both man- date that warrants issue on a only showing of warrants,” By "federal search we mean to refer to warrants request issued on the of a federal law enforcement officer or an 41(a). attorney government. for the See FR P Crim provision, Const art 11. For § the text of the see ante at 167. 450 Opinion op the Court cause based on oath or affirmation. pertinent part, the Fourth provides: Amendment issue, Warrants shall upon probable but [N]o cause, supported by affirmation, Oath or par- and

ticularly describing place searched, to be and persons things Const, or to be seized. Am [US IV.] 41(c) 1972, Before FR Crim P was similar to MCL 780.653; 28.1259(3),12 MSA required that both an affidavit showing the facts and circumstances support cause determination. Specifi- 41(c) cally, FR P provided: Crim only on affidavit sworn to A warrant shall issue judge before the or commissioner establishing and grounds issuing the warrant. If judge or commissioner is grounds satisfied that for the application exist or that there is cause to exist, they believe that he shall issue a warrant 41(c) .... (emphasis Crim P added).] [FR When federal courts assessed the validity of a search light warrant particular of these federal requirements, the majority consistently supported the view that "all data necessary to show cause for the issuance of a search warrant must be contained within the four corners of a written given under oath.” United States An- affidavit derson at 175. Accord Williams, United States v (CA 4, United States v Massey, 977 1992), F2d 866 (CA 10, 1982), United States v F2d 1348 Hatcher, (CA 6, 1973), United States v 473 F2d 321 Sterling, (CA 3, 1966), Rosencranz v 369 F2d 799 States, United (CA 1966), F2d 310 For the text of MCL 780.653; 28.1259(3) see ante at 167-168. v Sloan Opinion of the Court (CA Freeman, United States v 358 F2d 459 1966).13 sworn, unrecorded, approach

Our testi- yet mony connection with search warrants finds support further in the post-1972 amended version 41(c). of FR Crim P pre-1972 addition to the 41(c) requirement, affidavit rule now amended procedure mandates the following be adhered presented: when oral statements are ruling request on Before for a warrant [judicial may require appear the affiant to officer] personally may examine under oath the ., . provided proceeding affiant . that such shall reporter be taken equipment recording down a court or part and made of the affidavit. [FR 41(c)(1) P (emphasis added).][14] Crim We acknowledge that when federal courts have been asked to review the validity state search law, warrants15 under federal constitutional the has majority probable allowed cause determina sworn, tions unrecorded, to be based on yet oral testimony presented to the at the time See, i.e., that the warrant sought. was United (CA 1994), States v Clyburn, 4, 24 F3d 613 United (CA Shields, 6, 1992), States v 978 F2d 943 United (CA Gaugler States ex rel 477 F2d 516 Brierley, 3, 1973), (CA Roberts, 8, Frazier v 441 F2d 1224 (CA Hill, 5, 1974), Contra United States v 500 F2d 315 United (CA 10, Beasley, 1973), States v Marihart, 485 F2d 60 and United States v (CA 1972). 8, 472 F2d 809 See also anno: Federal court probable determination of cause for search warrant: of Consideration was, testimony affidavit, oral which to addition before officer who warrant, issued 24 ALR Fed 107. designed adequate The amended rule is "to insure an basis for for the issu determining ance of the search of sufficiency evidentiary grounds question if warrant that should later arise.” Notes Advisory Committee on 1972 Amendment to 41. Rule 15By "state search warrants” we mean to refer to warrants re quested by a nonfederal officer. 450 Opinion of the Court (CA Sherrick v 1971), 9, Eyman, 389 F2d 648 and 1968). cases, governing such the criteria legality of the state warrant was to the limited Fourth Amendment.16 The standard reason em ployed support these courts reliance on sworn, unrecorded, was yet oral statements that language literal of the Fourth Amendment require does not probable that for basis however, be in writing. established Significantly, when courts applied reasoning federal they ..that also consistently that pref indicated the far more procedure securing erable search warrants is to present See Clyburn written affidavits. at (CA 7, 1983), United v Lynch, States 699 F2d 839 Gaugler United States ex rel Frazier at at 1229, and Sherrick at 653. preferable procedure accomplished is easily

. in Michigan because of the well-settled of practice requiring cause be demonstrated 28.1259(1)(1) an 780.651(1); affidavit. See MCL MSA 28.1259(3). 780.653; and MCL This Court has recognized purpose Michigan’s of requirement affidavit provide is "to for review of the magistrate’s determination cause.” Knopka guarantee at 543. To meaningful most review possible Michigan’s particular under war- rant procedure, we persuaded reviewing are that a court’s magistrate’s probablé assessment cause determination should be limited to the facts and circumstances set forth the affidavit.

Having determined failed affidavit set forth justify facts circumstances a find- ing cause, having also decided that reviewing sworn, may yet courts not consider un- Amendment, law, governs The Fourth not federal rules or state officers, admissibility ultimately the used of evidence obtained state but 616, 945, proceeding. Clyburn in a federal at Shields at United 520, Gaugler 523, 1228, States ex rel at and Frazier at n 6. v Sloan op Opinion the Court to a

recorded, testimony presented oral cause probable assessing magistrate’s when cause determination, probable that we conclude warrant has the instant search issuance of for the 780.653; MSA under MCL established not been 28.1259(3).17 Sherbine, that evidence obtained we held 780.653; MSA MCL in violation

specifically 28.1259(3) Legislature ap- must be excluded. particular con- acquiesced this to have pears 28.1259(3). While 780.653; MSA of MCL struction MCL amended subsequently Legislature 28.1259(3) disagreed it with 780.653; MSA because analysis provided statutory our portions of Sherbine, Legislature that significant it not alter did instituting such amendments when in violation of obtained holding that evidence our the law change To must be excluded. the statute an easy have regard would been in that Neither Legislature. task for the convenient amendments, legislative nor in the language provide to the amendments history pertinent probable un Having not established cause was determined 28.1259(3), 780.653; whether the we need not decide MSA der MCL magistrate’s probable tive under Const constitutionally defec determination was 1, art 11.§ that, suggestion part contrary implicit point to the also out We Michigan’s dissenting opinion, statutes do search warrant h(a) imposed requirements Legislature for some has demonstrate search warrant constitutionally applications beyond are those that finding "magistrate’s requirement required—in particular, a that a upon the facts related based all or cause shall be reasonable within the 780.653; MCL him or her.” affidavit made before 1, 11, 28.1259(3). Amend- the Fourth art § Neither Const nor ment, require in an affidavit. cause be established Nonetheless, requirement represents a well-established the affidavit permit magistrates Michigan practice To under law. and beneficial make unrecorded, requirement sworn, yet on the basis cause determinations essentially testimony render the affidavit oral would above, allowing Moreover, meaningless. indicated and as very practice engage it difficult magistrates would make in such a magistrate’s probable cause determi- reviewing to assess a courts that is reliable. in a manner nation 184 450 Mich 160 Dissenting by Opinion J. for concluding

basis that a sanction other than exclusion appropriate is for the violation of MCL 28.1259(3). 780.653; MSA Clearly, Legislature shares our view that no remedy other than exclu sion is likely as to assure the full enforcement of 780.653; all the requirements under MCL MSA 28.1259(3)—a statute specifically designed Legislature implement the constitutional man for probable 1963, 1, date cause under Const art 11.18 §

Because the procured pursuant blood test result to the instant search warrant19 constitutes evi- 780.653; dence obtained in violation of MCL MSA that, 28.1259(3), we conclude it be must excluded. affirmed, decision of the Appeals Court of is and the case remanded for proceedings in accor- dance with opinion. this

Brickley, C.J., Mallett, JJ., and Levin and Cavanagh, concurred with Boyle, IJ. respectfully from dissent the majori- ty’s decision to bar introduction highly proba- tive evidence of the defendant’s at intoxication1 18Hence, the exclusion sanction a does valid and "serve[] useful (" purpose.” penalize police error, 'Before we ... we must consider ” purpose.’ whether sanction serves a valid and useful at Post 200.) Moreover, excluding evidence obtained in of a violation statute phenomenon Michigan is not a new under law. See McNitt v Citco Co, Drilling 393; (1976), Dixon, People 397 Mich 245 18 NW2d v 691; (1974), Weaver, People 392 Mich 222 NW2d 749 74 Mich (1977). App 53; 253 359 NW2d suggests may The record us before there have been two defendant, showing blood tests conducted on the test first a blood 0.30, second, showing alcohol content of and a later test a blood only alcohol content of 0.19. If either test was conducted "for medical treatment," may provided the result from test be admissible all requirements 257.625a(6)(e); 9.2325(1)(6)(e) other under MCL MSA can be satisfied. notes, majority J.), As the (Cavanagh, at n ante suggests record percent that defendant had a blood-alcohol content of 0.30 accident, shortly after the and continued to have a blood- v Sloan Dissenting Opinion Boyle, J. with a motor manslaughter charges

trial on 28.553, 750.321; a vehicle, operating MCL of intoxi- the influence while under motor vehicle death, 257.625(4); MSA causing MCL cating liquor 752.191; 9.2325(4), driving, MCL and felonious holding is flawed be- majority’s MSA 28.661. The misapprehension it results from a cause determination proper focus of Fur- search warrant. evaluating validity ther, deals with war- case law that by applying supplied by information unnamed rants based on sources, the erroneously obscures majority the federal law and state principle contained both police and is a statute. If the source is named Thus, officer, presumptively the source is reliable. allega- need contain affirmative only the affidavit magistrate the to conclude that permit tions that knowledge of the facts personal the source had the rele- alleged. As Professor LaFave describes ingredients—time, vant it includes four inquiry, crime, place—and requires a sufficient objects, and thing to be activity, nexus between criminal LaFave, seized, place and the to be searched. (2d ed), 4.5(a), 214. p Search & Seizure § defen- cause issue is not whether drunk, it is reasonable to dant was but whether drunk, would assume if defendant was his blood Affidavits, for exam- of that fact. contain evidence that ple, conclusory offer the statement typically drug dealing and the appellant suspected is of probable cause that question is whether there is of such place yield to be searched will evidence LaFave, 4.1(d), pp 127-139. supra, See 2 activity. § justify to requiring law enforcement officers By percent approximately hours four and one-half alcohol content of 0.19 demonstrate a blood-alcohol after Both test results accident. level, gives significantly rise to a the 0.10 which content presumption above of intoxicat- under the influence the defendant was 9.2325(1). 257.625a; ing liquor. MCL 450 Mich Dissenting Opinion persons appear their icated, observations to be intox- questions the majority veracity both the experience police gives of officers and a cramped construction of their to ability evaluate person appears whether a to be intoxicated. Under an appropriate analysis, pre- affidavit sented magistrate provided to the sup- a basis to port a finding to justify issuance of the search warrant authorizing withdrawal blood for testing. defendant’s The statements in the affidavit the defendant had oper- been ating vehicle that was involved in a fatal acci- shortly dent before the affidavit was and that the defendant appeared provided be intoxicated adequate justification to conclude that evidence of intoxi- cation would then sample be found in a of defen- dant’s blood. That is all that necessary sup- port finding Although my cause. view the affidavit was I satisfactory, would also find that the Fourth permits Amendment supple- sworn, mentation of a deficient affidavit unre- corded, oral testimony. I find Finally, support no for the Legislature conclusion that intends exclusion evidence this situation.

i A The affidavit in this case was not deficient. MCL 28.1259(1)(1) 780.651(1); MSA directs an authorized magistrate to issue a warrant sanctioning a search requested through oath, an affidavit made on if the is satisfied that there is or reasonable supporting grounds stated to justify 28.1259(3) 780.653; the search.2 MCL MSA

2 When an affidavit made on oath authorized People v Sloan 187 Dissenting Opinion explains further magistrate’s finding of "[t]he or probable reasonable upon cause shall be based all the facts related within the affidavit made him before or her.” These statutes do no more put than into action state constitutional edicts protecting against unreasonable searches and sei 3 Michigan Constitution, turn, zures. The pro protection vides the same as the Fourth Amend ment of Constitution, the United States absent "compelling See, e.g., Smith, People v reason[s].” 1, 20; 420 (1984); Mich 360 841 NW2d People v Nash, 196, (1983) 214; 418 Mich 341 NW2d 439 J.). The taking of blood after an arrest (Brickley, warrant, without even without a defendant’s consent, does not offend process, due Breithaupt v Abram, 432; 408; 352 US 77 S Ct 1 L 448 Ed 2d (1957), Amendment, nor the Fourth v Schmerber California, 757; 1826; US 86 S Ct 16 L Ed 2d (1966).

We have held that the removal of blood for testing presents no compelling reason to afford greater protection under the Michigan Constitu- tion than under the Fourth Amendment.

Perlos, 305, 313, 7; n 462 NW2d 310 (1990). We have also held language cases,

to issue warrants in criminal and the affidavit establishes grounds act, issuing pursuant magis a warrant to this trate, if he or she is satisfied that there is cause for search, house, building, shall issue a warrant to search the place property thing or other location or where the or to be 780.651(1); searched for and seized is situated. [MCL 28.1259(1)(1).] pertinent part, Const art 11 states: § person, houses, papers possessions every person shall be secure from unreasonable searches and seizures. No any place any person things warrant to search or to seize or them, describing shall issue without nor without cause, supported by oath or affirmation. 188 450 Mich Dissenting by Opinion 1, 11, antiexclusionary clause of art of the Michi- § gan Constitution "clearly indicates people that of Michigan had no intention of imposing more stringent restrictions upon law enforcement than is mandated Fourth Amendment.” People v Collins, 8, (1991). 32-33; Mich 475 NW2d 684 Legislature repudiated has attempts by this 28.1259(3) Court to interpret 780.653; MCL impose requirements additional supplementing constitutional search and seizure protections. Col- lins, 13, supra at n 7 (noting v Sher- bine, 421 502; Mich 364 NW2d [1984], had been superseded statute); see also People v Powell, 516, App 524-527; 506 NW2d 894 (1993) P.J.). It should follow (Corrigan, if seizure does not offend the Fourth Amendment or state, constitution of this this Court should implement people will of the in aid of enforce- ment of the law. Given that expression of the people’s will, it presumed should be Legis- lature does not intend to forbid what the Fourth Amendment permit. would There no constitu- tional impediment taking the blood of an intoxi- person cated arrested on cause without a warrant, even over objection. Schmerber, supra. Moreover, repeated legislative amendments drunk driving laws persuasive are evidence of the legislative commitment to the use of blood-alcohol evidence in enforcement of these laws. The Legis- lature’s reaction to this Court’s restrictive inter- pretation of statutes that would preclude the loca- tion and use of such evidence could not be more clear. See People v Pittinger, 105 Mich App 1; (1981). n 307 NW2d 715 Nevertheless, although it is anomalous to look to authority defining quantum cause required by the Fourth Amendment for search warrants when Fourth Amendment permit would People v Sloan Dissenting by Opinion Boyle, J. seizure of blood without a warrant incident to an pre- cause,4 arrest on sented is framed as the because the issue

sufficiency affidavit, precedent we look to in that area. agreed

We have that the Fourth Amendment requires magistrate no more of a than a substan- tial basis that a search would uncover evidence of wrongdoing, magistrate’s and that the determina- great tion is Russo, entitled to deference. (1992). 439 long 604-607; 487 NW2d 698 "[S]o magistrate as the had a 'substantial basis concluding]’ . . . that a search would uncover wrongdoing, evidence of requires the Fourth Amendment Gates, no more.” Illinois v 462 US (1983)(citations 236; 103 2317; S Ct 76 L Ed 2d 527 omitted). supra Russo, See also at 603-604. In reviewing requesting an warrant, affidavit a search a stances if determines the facts and circum- likely demonstrate that it is (1) the affiant will find seizable evidence of crimi- (2) place conduct, nal in the to be searched. In the present question case, the for the was police by whether the facts attested to officer (1) made it evidence relevant operation defendant’s criminal of a vehicle in- (2) accident, volved in a fatal could be found sought blood to be withdrawn. Our role as a re- viewing simply court is to determine if there was a magistrate’s substantial basis for the conclusion. supra Russo, at 604.

B majority errs it because fails to consider whether the facts and circumstances stated in the provide magis- affidavit a substantial basis for the present providing 4 I would hold that the evidence in the case provide probable cause to search would also be sufficient cause to arrest the defendant. 450 Mich 160 Dissenting Opinion trate’s conclusion that sought evidence was likely to be place found searched. The majority instead focuses on whether affidavit provides independent an basis for assessing the reliability the facts stated, and circumstances requiring specific notation of observations made by affiant, or persons upon whose information the affiant relying. This additional level of proof is not required by the constitutional protections against warrants, searches without where the facts supporting a search are the result of police direct observation.

I agree that "a mere conclusory statement gives magistrate the virtually no basis at all for making judgment a regarding cause,” Gates, supra at is insufficient a constitute basis for issuance of a valid search warrant. The statement at issue in present case, however, the was not an unilluminating assertion po- that lice officer "has cause suspect and does believe” that there was evidence of defendant’s criminal operation of a motor vehicle to be found in defen- dant’s blood. States, Nathanson v United 290 US 41, 44; 11; 54 S Ct 78 L Ed 159 (1933); see also People v Effelberg, 220 530; 190 NW 727 (1922) (probable cause was not shown where an affidavit that stated the affiant "believes and has good cause to believe” that a violation of the prohibition law was taking place in place to be. searched); People v Rosborough, 183; 387 Mich (1972) (the NW2d 255 affiant noted seemingly inno- cent conduct of carrying bags in and out of an establishment, and then concluded that per- those sons conspired had to violate the state gambling laws). Nor did the officer assert that the basis of the request was "reliable information from a credi- person, ble and . . . that the defendant believe[d]” was criminally responsible for a death and v Sloan Dissenting Opinion

evidence of that criminal responsibility could be Texas, Aguilar found defendant’s blood. 108, 109; (1964). 1509; US 84 S Ct 12 L Ed 2d 723 instead, on the basis of direct observation of inves- tigating officers transmitted to the affiant officer in case, (1) present the affidavit stated that defendant had operating been speci- vehicle (2) fied location on or about 11:40 that a p.m.,5 (3) occurred, collision had ap- defendant peared under the influence of intoxicating liquor, (4) the defendant had been involved in an accident involving death. majority appears to believe that the affida-

vit provided should have underlying details of why the defendant appeared to be intoxicated. Thus, facts, the majority states it such "[w]ithout would be impossible for the to have independently concluded that there was J.). to search.” Ante at 171 This (Cavanagh, approach simple question: misfocuses a very Could believe that the defendant’s blood would contain evidence of alcohol? The answer officer, a police evident—because a presumptively source, reliable trained to make such observa- tions,6 swore that defendant had been in an auto- accident, mobile shortly before the time that sought affidavit appeared was to be intoxi- dissipation time, As a result of the of blood-alcohol content over it important magistrate’s probable was the accident to the cause determination that question only recently had occurred. Because the inquiry "place yield critical sizeable able for the alcohol was whether the to be searched” would evidence, notation of the time accident made it reason magistrate to conclude that evidence of the defendant’s ingestion LaFave, would be found in the blood withdrawn. See 3.7, supra, pp 74-88. § 6 fact, this observation is so well within the common understand ing layperson See, e.g., Cicotte, that a could attest to it. Beaubien v 12 459, (1864); People 336, Borgetto, 340-341; Mich NW 328 501-503 v 99 Mich 58 (1894) (laypersons competent testify regarding are a person’s insanity, opinion and the observations on which such an based). 192 450 Mich 160 Dissenting Opinion by Boyle, cated. This information a did not state conclusion activity, i.e., of criminal defendant violated the provided Rather, statute. the affidavit the basis for place to determine that to be defendant) (the probably searched contained evi- statutory very dence of a violation because he had recently causing been involved an accident fatality appeared and to be intoxicated.

c 1 police When seek search on warrant the basis provided by of information either named or un provide informants, named the affiant must a basis on which the can evaluate the reliabil ity supplied. supra. Gates, the material See suspected informants, however, Unlike whose un reliability warrants the need for information vali dating provided, the information law enforcement presumed inherently reliable, officers are to be consequently require special showing no of reliabil ity. "Observations of fellow officers the Govern engaged investigation ment in a common are plainly applied a reliable basis for a warrant by one of their number.” United States v Ven tresca, 102, 111; 741; 380 US 85 S Ct 13 L Ed 2d (1965). People Mackey, See also 121 Mich App 748; 329 NW2d (1982).7 present expressly The affiant in the case did not state in his relying affidavit that he was on information received from fellow Kirk, Mackey, supra; officers. See (CA United States v 781 F2d 1986). requirement that an affiant state in his affidavit relying provided met, that he is however, on information other officers is whole, reading "if it is clear from as a affidavit that it is part upon based information obtained from other law enforcement reading whole, officers.” Id. I interpreting it from find clear as a affidavit sense, manner, hypertechnical it in a common and not a Ventresca, 108-109, supra at the affidavit was based on informa tion received from other law enforcement officers. The affidavit makes 193 v Sloan by Dissenting Opinion Boyle, J. Dixon, 691, 696-699; 392 People 222 (1974), police

NW2d 749 we held is officer authorized to make a misdemeanor arrest without a warrant offense for an committed the officer’s presence, presence requirement the where is ful- through information from filled obtained other police officers: "police qualification presence team” [A]

requirement, permitting who working officers are together perceptions satisfies the case that on a their combine collective composite if so the otherwise

presence requirement require- ment is officer does not himself witness although arresting deemed satisfied the the

all elements of at offense. [Id. 698.] The principle presented in Ventresca and Dixon applicable is present to the The case. affiant police officer presented inherently reliable information to the magistrate, representing the collective direct knowledge and observations of the investigating police team at the accident. This inherent reliabil- ity renders the need for proof further supporting statements present officer case unnecessary.8 _ informants, relying no claim that and it would be affiant on information from known that officers would be investigating the of a scene fatal accident. It would further be clear to from the time of the accident noted the affidavit impossible go that it would have been the affiant to to the scene of accident, personal present investigation,

the magistrate’s make a and then travel support home to the affidavit in of the search warrant. requirements statutory The affidavit did not violate the of MCL 28.1259(3) 780.653; by failing persons to describe those from whom the affiant officer had obtained the information contained in J.). provisions by (Cavanagh, the affidavit. Ante the n 5 at The cited majority repudiate were added amendment in 1988 to this Sherbine, supra, Court’s decision in it and make clear that the statute required support provided by no more to information an informant constitutionally required. language than was 166-168. See ante at 450 Mich Dissenting Opinion The issue in this case is not whether the infor- mation was It reliable. is whether the had a substantial believing basis for place that the sought searched, to be blood, the defendant’s was to likely contain alcohol within of hours a fatal accident. It is well established in making that this determination, weight given is to be to the experi- ence expertise and of the police officers. "This is as be, it should for there 'would be little merit able, securing trained men guard to the public peace’ if their actions were to be by 'measured might whát be cause to an untrained ” LaFave, (2d civilian.’ 1 ed), Search & Seizure (citations omitted). 3.2(c), p 571 § Babbell, In State v 987, (Utah, P2d 1989), the Utah Supreme Court rejected a defen- dant’s claim that a warrant issued to search the defendant’s truck supported was not by cause, where the affidavit merely stated that the truck "matched description” of the truck used to transport alleged victim of an aggravated sexual given assault to police by the victim and several witnesses. The affidavit included a detailed description of the truck used to transport victim place to the where occurred, the assault but in requesting a warrant particular search the truck, defendant’s the affiant police officer stated only that defendant’s truck "matched the descrip- of only require the amendment is intended further authentication provided informants, by of the information constitutionally as is necessary, by not unnecessarily evidence which a would reliability test reliable of inherently information communicated one police represents knowledge officer that the collective of the investigating entire team If accident. source the informa- officer, police presumptively tion is a the source is reliable under both Constitution, the Ct Maroney, 42; United States Chambers v 399 US 90 S 1975; (1970), law, Michigan 26 L Ed 2d v Goecker- man, 517, (1983). App 522; 126 Mich 337 NW2d 557 People v Sloan Dissenting Opinion Boyle, J. described,

tion” of the truck based on police direct observation. Despite expressing some disappoint- ment in the quality drafting affidavit, id. 3,9 at n acknowledging question that one, was a close the court found it to be sufficient to support a finding Noting cause. officer, the affiant awas trained the court con- cluded that "it was within magistrate’s discre- tion to construe statement [the affiant’s] [the truck 'matched the description’ defendant’s] mean that the truck matched with respect to those characteristics expressly described in the affida- vit.” Id. at 992. (CA Fannin, United States v 817 F2d 1379

1987), Drug Enforcement Agency and Internal Revenue agents Service had direct knowledge of the defendant’s involvement in drug trafficking, as a result of investigations undercover placed agents the in contact with the defendant at loca- away tions from the Although defendant’s home. the agents federal had not been to the defendant’s residence, they sought a warrant to authorize a search of the location where the agents believed books and records of illegal transactions could be found. The supporting the request affidavit for a warrant was based on direct observation by the officers of the during defendant investigation, the affidavit, which was described in an as well as the affiant’s agents’ and other experience stated expertise in federal narcotics and financial investi- gations. The Fannin rejected court the defendant’s contention that the search warrant issued was not supported by probable cause to search his resi- present 9 I do not doubt that the affidavit in the case could have artfully clearly preferable been more drafted. It would have if been provided. here, primarily more detail had been We are not concerned however, providing preferable with instruction to affiants on the affidavits, legal sufficiency content of but with the of the affidavit before us. 450 Dissenting Opinion dence, noting weighing that "in sup- evidence warrant, porting request magis- for a search may rely experienced trate on the conclusions law regarding enforcement officers where evidence to be found.” Id. at 1382. of a likely crime is case, In present I find it to reasonable allow to from construe the statement the affidavit that . . . un- "appears defendant der intoxicating liquor” the influence of to mean the defendant exhibited those characteristics typical of person. an intoxicated with any Police significant experience, especially the area of traffic investigation, significant expe- accident have persons rience in observation are who intox- training icated and in blood-alcohol levels and dissipation I hard-pressed rates. am find the magistrate’s on experienced reliance these of police observations officers conclude that evidence of intoxication be would found defen- dant’s danger blood advances the of unwarranted against protections intrusions which the Fourth guard. Amendment are meant to stand

D case, present police investigating officers the scene a fatal automobile accident observed behavior suspect defendant led them to that he had been his driving car while under influence of alcohol.10 The officers sought obtain a sample of the defendant’s blood to tested be blood-alcohol content as as quickly possible,11 while 10The record indicates that at the officers scene of the accident who transported interacted with hospital defendant he before was to the or, up” for treatment believed that the defendant "f’d was specifically, "filthy more drunk.” 11 provisions implied While are made consent statutes of our upon police Motor Vehicle for Code blood tests to be taken a officer’s grounds” determination that he has "reasonable that a believe People 197 v Sloan by Dissenting Opinion adhering preferential procedure

still to the obtaining court authorization for the search.12 The it likely found that was that evidence of crime was be found the blood of an person quires is MCL officer’s court order before 9.2325(4). application independently consent statute.” Manko v crimes, has committed certain enumerated the statute re person suspected, person the officerto if advise the at least competent consent, grant statutory rights. or refuse of certain 9.2325(1)(6). 257.625a(6); person MSA If the then refuses the request taken, that a blood test be the officer must obtain proceeding 257.625d; often with the test. MCL MSA route, therefore, may The more efficient direct be procedure for a search warrant. "The warrant exists testing procedure implied of the set forth in the Root, 702, 704; App 190 Mich 476 NW2d (1991).See, also, Cords, e.g., People App 421; 776 NW2d 911 v 75 Mich 254 (1977). alternative, if, accident, sample In the after an of the blood of a treatment, driver involved in the accident is withdrawn for medical analysis sample "the results of a chemical of that are admissible in any proceeding” civil or criminal to show the driver’s blood-alcohol 9.2325(1)(6)(e). 257.625a(6)(e); content. exigency pre MCL rapid dissipation sented of a driver’s blood-alcohol level over time, however, may against investigating waiting counsel officers for the withdrawal of blood for medical treatment. may delays Police officers be further concerned over in blood stating withdrawal as a result of several decisions lower courts that before the results of tests for intoxication can be admitted into evidence, requirement proof a foundational the test was performed within People a reasonable time after arrest must be met. Schwab, 101; (1988)(affirmed App v suppres- 433 NW2d 824 Breathalyzer performed sion of tests hours after the 2!4 defendant. stopped by police), Kozar, was first App v 54 Mich 509, 2; (1974)(holding n expert NW2d 170 that there need not be testimony interpreting results of chemical tests conducted to detect relating blood-alcohol level or the results back to the time of the offense, alleged outlining prerequisites but four foundational evidence, including proof introduction of the results as that the tests arrest). performed were person’s a reasonable time after Because a time, dissipates danger rights blood-alcohollevel over to the of the being protected by readily defendant that are .such a rule is not apparent. Factual situations similar to those in the instant case justify have been found to withdrawal of blood without a warrant to arrest, test alcohol content incident to a lawful even over a defen objection, exigency dissipation dant’s because of the of blood- shortly Schmerber, consumption alcohol levels after alcohol ceases. supra. police place Given that the had cause to the defen seized, dant under arrest before the blood was it is immaterial that Rawlings Kentucky, the formal arrest came after the seizure. (1980). 98, 110-111; 2556; US 100 S a L65 Ed 2d 633 450 Mich by Dissenting Opinion J. individual who was in involved an accident shortly before a operating vehicle and who appeared be intoxicated. Neither constitutional protections against searches, unreasonable nor the statutory provisions implement were enacted to those protections require constitutional more. commands, Fourth Amendment’s like all [T]he requirements, practical constitutional are and not If teachings abstract. States [United Supreme] Court’s cases are to be and followed served, policy constitutional affidavits search for warrants, here, such as the one involved must be interpreted by magistrates tested and courts in They a commonsense and realistic fashion. are midst normally by nonlawyers drafted a in the investigation. haste of criminal Technical re- quirements of specificity elaborate once exacted pleadings under common law proper place have no A grudging negative this area. or attitude reviewing courts toward warrants will tend to police discourage evidence to submitting officers from their judicial officer acting. before [Ven- tresca, supra at 108.]

II arguendo Assuming the written affidavit present defective, case is I disagree with the majority’s conclusion affidavit cannot be supplemented sworn, unrecorded, oral state- ments by the affiant. I further disagree with the decision to utilize the exclusionary rule to sup- press probative highly evidence.

A By holding that all the facts and circumstances supporting finding of probable cause must be People v Sloan Dissenting Opinion by Boyle, contained within the four corners of an affidavit support of a request for a search warrant, majority engrafts a requirement search warrant applications those that beyond are constitutionally required. Contrary to such a con- clusion, I find the Legislature’s past disagreement with this Court’s attempt impose requirements for search warrant applications those that beyond are ante at required, constitutionally and this explicit holding Court’s that no compelling reasons exist in the context of the removal of blood for testing to find that the Michigan Constitition affords greater protections than provided those Amendment, ante at by 188-189, the Fourth provide a clear indication Legislature that meant the search warrant to implement statutes protections with, commensurate not but more than, stringent the Fourth Amendment.

As acknowledged by majority, numerous federal courts have that application held warrant procedures that include by magis- consideration sworn, unrecorded, trate of but testimony pro- oral vided at the application, time of satisfy the Fourth See, United States v Clyburn, i.e., Amendment. (CA 4, Shields, United States v 1994), F3d 613 (CA 6, 1992), 978 F2d 943 and other cases cited J.). Ante at 181-182 by majority. (Cavanagh, Supreme The United States Court has not ruled on of supplementation issue oral of deficient affi- davits, but has held that only appellate review of a determination cause for issuance of a search warrant must be based on the infor- solely brought mation magistrate. the attention of the Texas, Aguilar supra at n 1. principle This is not by supplementation offended of a deficient by magistrate. affidavit oral statements to a Nor supplementation express pro- does such offend the Amendment, tection in the Fourth embodied by Dissenting Opinion requires which only finding that "supported for issuance of a warrant be Oath or affirmation.” Const, Am (emphasis IV US added). supplementation Because sworn oral of a deficient affidavit does not violate require- Amendment, ments of the Fourth is all required is our statutes and state constitu- tion, I allow supplementation would in the manner supra utilized in case. See Clyburn, present at 617, Shields, supra Powell, at 946 and see also P.J.). supra at 525-526 (Corrigan, B Application the exclusionary any rule to tech- nical of our violation search warrant statute that may have present occurred case unwar- ranted. Particularly where the magistrate is a sitting judge, as are virtually magistrates all state, this I cannot conclude that the risk of rely- ing on after-the-fact allegations are so substantial suppress we must evidence. The exclusionary rule is intended to purpose, serve a deterrent and loses any applied useful force and effect when technical errors not that do rise to the level of negligent conduct, or wilful serving then only to deprive trier of probative the fact of relevant and explained evidence. As the United States by Su- in Michigan Tucker, preme Court 417 US (1974): 446-447; 94 Ct 2357; S 41 L Ed 2d 182 require Just as the law not does that a defen- trial, perfect one, dant a only receive a fair it realistically require cannot policemen investi- gating serious crimes make no errors whatsoever. pressures vagaries The of law enforcement and the of expectation human nature would make such an error, penalize police Before unrealistic. we there- fore, we must consider whether the sanction serves purpose. a valid useful v Sloan by Dissenting Opinion

[*] ^{[*] [*]} purpose exclusionary of the rule The deterrent police engaged necessarily in which has the have assumes willful, negligent, very the least conduct or at deprived right. of some the defendant refusing gained By such to admit evidence as result of conduct, in hope to instill those courts officers, particular investigating in their future or counterparts, greater degree of care toward rights of an accused. Where the official action was faith, however, pursued complete good in the de- terrence rationale loses much of its force. case, pursued present police officers seeking a

constitutionally preferable course of mag- from a neutral search warrant and detached presentation istrate by way of a handwritten affidavit rushed to the home of a presented morning to him in the hours. early Working against the time constraint dissipation of the alcohol level defendant’s time, blood over I cannot find in failure any draftsmanship justifying an "error” correction through the unwarranted remedy visited majority. The deterrence rationale has no force whatso- setting. investigator did ever this not en- deterring

gage in worth in a rational misconduct society. cedure was technical. slight police pro- The "error” attributable to the unwilling equate am I imperfection draftsmanship human de- picted here in the "midst and haste of a criminal investigation” drastic the deterrent warranting with misbehavior suppression. advancing remedy Far from rule, purposes exclusionary promotes public this disre- exclusion of evidence legal process. [Powell, supra at 529 spect for the (Corrigan, P.J.).] Hill, 500 (CA In United States v F2d by Dissenting Opinion 1974), the United States Court of Appeals the expressed Fifth Circuit similar disdain over the possibility of exclusion relevant of evidence seized through presenta- a search warrant obtained by tion of supplemented by a deficient affidavit oral regarding statements certain informers’ reliability: apply situation furnishes no occasion to [T]his exclusionary the criminality bar of rule to evidence Hill’s executing in was obtained Phillips going warrant. magistrate Sear acted mation properly acted in to the seeking Magistrate a warrant. calling properly for additional infor- Thus, credibility. only to demonstrate procedure error a deterrent they attributable followed is one way technical that would no serve the purposes of rule. present present facts case an even more compelling argument against utilization the exclusionary rule objective to bar evidence defendant’s blood-alcohol content. Unlike the affi- Hill, ant in who relied on provided information by informants, inherently unreliable affiant present relied inherently case on reliable informa- tion provided police officers who obtained their information direct' only observation. The "er- ror,” all, if at was in including not in the affidavit supporting needless explaining details the trained observation appeared defendant to be intoxicated. Where the exclusionary rule is used in such a situation probative bar relevant evidence, the rule does violence to the truth- seeking function that the Fourth Amendment does not require and that not should be countenanced.

The majority’s legislative acquies- assertion of Sherbine, supra, cence in the decision in to use of People v Sloan Dissenting J. Opinion the exclusionary suppress rule to evidence ob- tained in alleged violation of the statute before us Sherbine, is wholly mistaken. this Court’s ma- jority interpreted the former version the statute imposed as if it a more restrictive standard than the Fourth Amendment suppressed and evidence on the basis of that consideration. The swift reac- tion the Legislature was to amend 780.653; MCL 28.1259(3), MSA to make it clear that the Court was in incorrect concluding that what had oc- curred was a statutory Legislature violation. The had no need to say what should excluded; not be it relied on the Court’s word that were it clear that Legislature had warrant, authorized sup- pression would not be ordered.

Acting on our representation, legis- the amended lation tracked the Fourth Amendment. Because "our holding that evidence obtained violation of the statute ante at 183 excluded,” must be (Cav- J.), was wholly derived from our narrow anagh, reading 780.653; MCL 28.1259(3), legis- lative amendment of the statute is not an acquies- in, cence of, but a repudiation rather view excluded, Sherbine the evidence should be hi For above, the reasons stated I dissent from the majority’s decision the present I case. would reverse the decision of the Appeals Court of reinstate the trial court’s decision to deny defendant’s motion to suppress the results of tests conducted detect the defendant’s blood-alcohol content.

Riley Weaver, JJ., Boyle, concurred with

Case Details

Case Name: People v. Sloan

Court Name: Michigan Supreme Court

Date Published: Aug 22, 1995

Citation: 538 N.W.2d 380

Docket Number: 100580, (Calendar No. 17)

Court Abbreviation: Mich.