*1 v WARD PEOPLE 5, 1981, Lansing. March Docket No. 49763. Submitted Decided 4, appeal applied Leave to for. June 1981. conspiracy charged with to deliver cocaine. Michael C. Ward was information, trial, quash moved to Prior to defendant warrants, suppress quash Fol- and to certain evidence. search Court, Giddings, hearing, Ingham lowing James R. Circuit J., suppress granted motion to the evidence and appeals. charges prosecution Held: dismissed. The ordered stop by police investigatory of defendant’s automobile 1. The case, and thus under the circumstances of the was reasonable acquired was admissible. The evidence as a result suppressing trial erred in the evidence. expectation privacy of in the 2. Defendant had no reasonable person, driveway the use of a tele- of another and therefore photo by police lens to enhance the officer’s observation [6] [5] [11, [7] [8, [13] [1-3] [3] [4,10,14] Investigations Disputing Nature Modern status of rule 68 Am Jur Right Observation Validity, under Federal 62 Am Jur 9, 10, 62 Am Jur 68 Am Jur 68 Am Jur 25 Am Jur search. ALR2d 1178. by unlawful search and seizure. 50 ALR2d 531. affecting standing 12] mobile. 46 58 Am Jur right 29 Am Jur 14] 29 Am privacy. matters 68 Am Jur 2d, 2d, Privacy 2d, 2d, 2d, privacy. L Ed interest 2d, References through 2d, Searches and Seizures Jur Privacy Searches Searches and Seizures 42. 2d, Drugs, 14 ALR2d 750. § Searches and Seizures 2d stated surveillance, shadowing 2d, to attack Evidence 13 ALR3d 1025. 209. 2d, in, Evidence governing admissibility binoculars as Narcotics, 26.§ §§ Constitution, Searches and Seizures and or connection for Points in Headnotes 4, supporting 26. Seizures 25. legality §§ §§ 418-424. and Poisons 415, §§ of search. 78 ALR2d 246. of warrantless search of auto- § § affidavit. 5 ALR2d 394. 416. 2, constituting with, premises 58. 4. of evidence obtained §§ trailing, §§ 17. 66-68. unreasonable as violation as v Ward a search without warrant. did not constitute discounting obtained a result of erred in evidence as trial court the observation. *2 apply proper failing the in to stan- trial court erred 3. The probable determining to search cause existed in whether dard automobile. police conspirator’s by home in a 4. The evidence discovered The trial search defendant’s car. the fruit of the of
was not holding. in so court erred holding had stand- in that defendant The trial court erred 5. challenge conspirator’s ing of a house. Defendant to the search privacy expectation in the or the of house no reasonable had objects seized. properly the that the search of trial held 6. The court right illegal, conspirator’s no to but defendant had house was vicariously may protected not assert from the search and be right. the proscribe provisions Code the Public Health which 7. The of penalties provide do therefor controlled substances use of Michigan title-object clause of the Constitution. the not violate and remanded. Reversed P.J., would that even Cavanagh, dissented. He hold M. F. challenge though have to the search defendant did not house, conspirator’s had the of a the trial court and seizure power duty the obtained as a result of to exclude evidence police shocking by to the con- means which were search process grounds. he would hold on due In addition science investigatory stop unreason- defendant’s automobile was of trial for further the case to the able. He would remand obtaining hearings the search of on conduct determining proba- light proper for standard to issue the warrant. ble cause op Opinion the Court n — Investigatory Stops — 1. and Seizures Automobiles Searches — Police. subsequent by police must stop of a motor vehicle A search and circumstances as from the facts be reasonable determined necessary support case; a foundation facts are of each fewer moving finding are involved where vehicles reasonableness home, of a or a and where than where search is house may upon stop investigatory purposes fewer it be based is for finding necessary support a of reason- than would facts be stop and a is conducted. where both a ableness Stops. Investigatory — — 2. Searches and Seizures Automobiles unusual, although person’s illegal, activity may provide A subsequent by police stop basis for a of his motor reasonable vehicle; necessary is not have sufficient evidence to believe a crime has been committed. Stops Investigatory — — — 3. Law Probable Criminal Cause Arrest. officers, appropriate appropri- Police circumstances and in an manner, may approach person purpose investi- ate possible gating proba- criminal behavior even where there is no ble cause to make an arrest. Investigatory Stops — —
4. Law Criminal Evidence. acquired reasonable, investigatory Information as result of a person may during of a introduced trial of as evidence person. — — 5. Searches and Seizures Law Constitutional Invasion Privacy. person’s expectation pri- A search must invade a reasonable vacy protections guaranteed by to violate the Fourth Amend- *3 ment. — Telephoto — 6. Searches and Seizures Constitutional Law Privacy. — Lenses Invasion of telephoto of a The use lens to enhance a officer’s observa- person’s tion aof activities outside a residence does not consti- protections. tute a violation of Fourth Amendment Expectations Privacy. — 7. and Searches Seizures Reasonable of person may expectation A privacy have a reasonable of se- home, cluded areas four outside the walls of his but where he neighbors passersby conducts activities within the view of and expectation no such exists. — — Supporting 8. and Searches Seizures Search Warrants — Affidavits Probable Cause. supports presumed An affidavit which a search warrant is to be valid, challenge allege and a of the affidavit must deliberate disregard truth, by falsehood or accompanied reckless for the proof; allegations substantially an offer of where such are necessary finding shown to be probable true and are to a of cause, hearing a challenger’s request, be must held at the allegations where the subsequently by prepon- are established a and, derance the evidence with the affiant’s false material aside, remaining set the affidavit’s content insufficient Ward cause, probable must be voided the search warrant establish pursuant to the fruits of a search made and the excluded. Supporting — — Search Warrants Seizures
9. Searches and — Probable Cause. Affidavits supporting negligent affidavit a mistake in an An innocent or setting justify the aside of the insufficient to search warrant is determining probable cause to issue erroneous information the warrant. — — Evidence. Search Warrants
10. Searches and Seizures pro- by constitutional methods which violate Evidence obtained prosecutions scriptions use in criminal must be excluded from obtained, along tainted so where the fruits evidence with portion very minor constitutes more than information warrant, supporting a search information an affidavit warrant is invalid. Standing. — Searches and Seizures 11. seizure person, to contest a search and to have A premises time of the search and searched at the must be on the seizure, possessory allege proprietary in the or interest must seized, charged objects premises with an must or the possession seized evidence at the includes offense which element of the seizure as an essential time of the search and offense. Conspirators. Standing — —
12. Searches and Seizures right subjected searches and to unreasonable to be vicariously right personal asserted and cannot be seizures is possess including conspirator, party, does not who a third privacy premises expectation searched. in the a reasonable — — — Criminal Law Controlled 13. Health Public Health Code — — Statutes. Constitutional Law Substances provide proscriptions which of the Public Health Code Sections violate penalties substances do not for the use of controlled (Const Michigan title-object Constitution clause of the seq.). seq.; et 4, 24, MSA 14.15[7101] art MCL et 333.1101 § *4 by Cavanagh, P.J. M. F. Dissent — Standing — — Evi- Due Process Searches and Seizures 14. Policy. —dence Public by power duty obtained to exclude evidence have the and Courts process grounds, and the conscience on due means which shock Opinion Court challenge where a defendant lacks to a search and seizure but establish can obtained search by offering containing affidavit a deliberate falsehood and disregard purposeful acted in with the law building against the deliberate intention of a case him trial illegal any product as court should exclude of such action public policy matter of and as a deterrence to future police. action Frank J. A. General, Robert Kelley, Attorney Houk, Derengoski, Solicitor Peter D. General, Sibert, Prosecuting Attorney, and Charles M. Chief Appellate Attorney, people. for the Flanagan,
Terence R. Appellate Assistant State Defender, for appeal. defendant on Cavanagh, P.J.,
Before: M. F. and J. H.’ Gillis Allen, JJ. Per Curiam. The prosecution appeals from a 30, 1980, January order of the Circuit Court Ingham dismissing a County charge of conspiracy cocaine, 28.354(1) to deliver 750.157(a); MCL MSA 14.15(7401). 333.7401(1); and MCL MSA The order when, was entered following a three-day hearing, the circuit granted mo- pretrial quash tions to the information, quash warrants, suppress evidence.
Testimony revealed that on the afternoon 20, 1979, March Miklos Szilagyi, Lansing police assigned officer to the Metro Narcotics Squad investigator Ingham for the County Citizens Grand Jury, drove to the house of Randall Lee Seaver Lansing Lake Road. There he observed defen- dant Pontiac, drive a white which was later deter- mined to be vehicle, a rented into Seaver’s drive- way. car, Defendant left house, entered the returned, then opened a suitcase in the trunk of *5 Ward something car, the from suitcase. and removed something jacket, placed his closed Defendant trunk, suitcase, returned to then the a few moments left the house house. Defendant away. later and drove Squad of the Metro followed
A team surveillance There, an on Pine Tree Road. defendant to address porch while, for on the front defendant talked minutes, house, about entered the remained for gas he made to a station where and then drove telephone phone He re- from a then call booth. house, Tree Road remained turned to the Pine minutes, an- then drove to another 20 inside for phone phone pay booth, and made another other track of the defen- team lost call. The surveillance again later at Seaver’s dant’s car but located house. day, he followed as that defendant was
Later approximately miles. drove southeastward M- Milford, not far from the intersection Near spoke US-23, team 59 and the surveillance indicating trooper, they wanted defen- state identity. stopped A his to ascertain dant’s car trooper pulled him the car over. Defendant showed that his name a driver’s license which indicated Plantation, The Kenneth Watson of Florida. agency said that he worked for a travel defendant and was on his airport plane. way catch a to the released, traffic citation was Defendant was no squad trooper narcotics The later told a issued. defendant was made because officer turn. had made defen- team continued to follow surveillance they day ended after dant but surveillance for reading sitting parked car, observed map. a road team, Officer of the surveillance member
One op Opinion the Court Unit, Boyd Metro Tri-County Narcotics agency checked with rental and determined the car had Kenneth been leased Watson Plantation, morning, Florida. The next Officer Boyd ran a LEIN check and learned that Watson had pound been arrested after one of cocaine was him, seized from case had but been dismissed. *6 Police also learned that a man who in was killed drug-related homicide had apparently placed a his shortly call before death to the Pine Tree Road residence that defendant visited on March 20.
On the of following day, afternoon March again spotted surveillance team defendant’s parked in driveway car at Seaver’s home. and car Observation the house was made by vantage point Officer from the of a Szilagyi neigh- yard, location, bor’s some 125 feet From away. this pictures using took Szilagyi two different camera lenses, mm a 300 and 200 mm lens. His observa- tions were in turn relayed by radio to Boyd Officer sitting who in his was car a 7-11 parking lot a short distance from Seaver’s house. Boyd received message a radio from Szilagyi that defendant had emerged from just the Seaver residence carrying glassine clear baggie the size of several dogs hot containing white powder and that defendant had climbed into the car trunk and hiding was baggie in the trunk Eight liner. photographs were taken and introduced into evidence at suppres- hearing. sion They climbing showed defendant into the car trunk but did glassine not show package. radio,
Via Boyd then asked Szilagyi whether he "felt certain about what he had seen”. Szilagyi replied that he did and added that defendant was driving just away. Boyd followed. When defendant into gas turned station at the intersection Lansing Roads, Lake and Abbott pulled Boyd his Ward defendant’s, from his car exited car front defendant out of and ordered gun with his drawn car, his got out of defendant’s car. When that he was him told him searched Boyd sub- violation of the controlled arrest for under was p.m. No cocaine act. This was about stances then The car was possession. found station, and the Lansing police to the East towed after a warrant trunk and searched opened 6:28 at about the car was secured for search of were paper white note Some p.m. Quaaludes trunk, no but upper portion found in the discovered. Mean- packet was glassine cocaine or while, for a warrant was obtained and before house, entered the Seaver plain- made they at about 3:30 There p.m. house de- of items in the house and view observations girlfriend approximately and his tained Seaver hours while waited for a search warrant. they five found cocaine waiting, While officers In in one bedroom. paraphernalia and related *7 out, drawer, pulled dresser which said was they 25 small they bag containing observed a bank footlocker, holding pills. open vials In an glass two, containing they gallon-sized baggies saw clear During waiting period, mushrooms. the psilocybin photo- the officers field tested the cocaine and took arrived, police graphs. After the Seaver house within completed the search of minutes. 52-page opinion
In a delivered from verbally bench on trial November the evi- granted suppress defendant’s motion to (1) on the made following grounds: dence March improper pretext on stop of defendant 20, near the intersection M-59 near of US-23 and (2) Milford; through of defendant observations a 300 mm neighbor’s lens from a were inade- yard quate cause for support finding probable (3) arrest; sup- because the affidavit port of the warrants to search defendant’s car and the Seaver residence relied on Szilagyi’s Officer positive bag assertion that defendant hid a powder white in his car and a exten- subsequent sive search failed to uncover the bag, warrants (4) invalid; to search were the evidence seized at Seaver’s residence pursuant to the search war- poisonous rants was the fruit of the tree. As articulated the trial judge: really talking "What we’re about is a search here to, least, intimately that is ful automobile, prior related at two unlaw- person intrusions into the defendant’s and into his and that was those intrusions that —as a fact, alleged possession matter of it’s the of the cocaine glassine packet and the caused the powder with the white prosecuting attorney, apparently, suggest house, they secure the upon on the basis which they entered the house and observations made of the alleged and items which were to be in his possession. They separated. cannot be So I think that the intrusion into the light the house must be viewed prior ongoing transactions. suggest "What I really got that we here is a fruit of poison standing, tree. So the although I’m satisfied that under all the standing, circumstances there is I’m required sure that it’s even because of the source of the information which lead to the seizure of the house. particular case, "In this without the unlawful Milford, Michigan, the identity of this defendant could known, not have been only and the way it was stop coupled with the gas arrest at the station at Abbott Road and Lansing Lake Road.” *8 The propriety of each of grounds the trial court’s People v Ward Opinion the Court suppression in the is discussed
for of evidence opinion. of this balance stop. alleged pretext
I. The Boyd hearing, suppression testi- Officer At the Squad officers asked Metro Narcotics fied that trooper pull in order car over defendant’s to state identity. that He also stated to learn defendant’s stopped trooper for he claimed that the failing testimony signal was This a turn. to laughter greeted by No evidence the courtroom. presented for an a citation was issued was largely Relying any improper turn or for violation. issued, the trial was that no citation on the fact pretext stop. stop that the was court found argues appeal prosecution Though on trooper stop observed made because was judge illegal the trial turn, cannot fault we an concluding thus turn made and no stop. pretext stop However, fact that was a stop not render does no violation occurred identity obtained as to defendant’s the information stop may as a be validated invalid. The therefrom investigatory stop. type Terry-1 Whalen In v 672, 682; 213 Whalen, Mich NW2d four-pronged Supreme test Court set forth our investigatory reasonableness of determine the stop: applied for that is to be is the test "1. Reasonableness moving motor of, the search of
both the vehicles. from the determined
"2. will be Said reasonableness circumstances case. facts and of each support necessary "3. facts are Fewer foundation Ohio, Terry 20 L Ed 2d S Ct 392 US *9 App 107 Mich 48 38 Opinion op the Court moving are vehicles finding of reasonableness when involved, home were involved. than if a hoúse or a investigatory pur- stop
"4. vehicle for A of a motor poses facts than those neces- may upon based fewer be finding where both support of reasonableness sary to police.” stop by the and a search is conducted the time the defendant was
We find that at had stopped purposes for investigatory making stop. They such a adequate grounds for house of a had the defendant observed dealer. had wit- suspected large-scale They cocaine something into that carrying nessed the defendant house, he had observed the defendant as they It pay phones. made calls from various telephone was the officers have sufficient unnecessary evidence to believe that a crime had been commit- Olson, 98 Mich People App ted. As was stated v (1980), 207, 211; 218 unu- 296 NW2d defendant’s though provided a reason- activity sual subsequent stop able basis for a of defendant’s though vehicle "even the officers did not have sufficient evidence to believe a crime had been committed”. 264, 267;
In People App v 96 Mich 292 Bloyd, (1980), NW2d 546 this Court upheld investiga- stop where the tory ground stopping sole for was leaving automobile was seen the parking place lot of a in the early business morning hours. The Court said: challenges
"Defendant
legality
first
stop.
officer’s
may
appropriate
Police officers
'in
circum-
appropriate
approach
stances and in an
person
manner
purposes
investigating possible
criminal
though
probable
behavior even
there is no
cause to
Ohio,
1, 22;
Terry
make an arrest’.
v
392
88
US
S Ct
(1968).
1868; 20 L
Stops may
Ed 2d 889
made to
Williams,
person’s identity,
determine a
Adams v
People
Ward
Í981]
v
(1972),
143, 146;
We observe a defendant reason- expectation privacy able secluded areas out- side the four walls of his home. Where a defendant conducts activities are within the view of neighbors, that no passersby we find reason- able exists. In expectation privacy the instant case, parked car was in the driveway of Seaver’s home where could be seen and Thus, photographed neighbor’s from a house. neighbor could have made the same observations. we find that no Accordingly, expecta- reasonable tion of privacy existed and that the use of the telephoto viewing lens to enhance officer’s observations was not violative of defendant’s rights. We gives also note that a 200 mm lens magnification of approximately power, four thus *11 equating the observation to an observation made magnification without from a distance of 31 or 32 feet. Alleged of the search
III. invalidity warrants. A. Search of car.
The key issue at both the examina- preliminary tion and the suppression hearing concerned Officer Szilagyi’s statement that he had observed defen- carrying glassine baggie dant the size of several v Ward had seen powder and containing white dogs hot the trunk of his in concealing package him car. trial court observed: The of the that the observations clear in this case "It was powder size of sev- the white glassine packet with dogs not exist. eral hot did concerned, erroneous informa- I’m this was "So far as it, he’s
tion, although magistrate did not know it, it the warrant and without not entitled to consider must fall. on its face there is no prepared say today to "I am not question get to into a today the court necessity for deliberate falsehood reck- there was indeed
whether I to do that disregard the truth. don’t need less that’s a standard be I don’t think because is, then appellate court decides that applied. If an there was point at that consider whether this court will in this disregard or deliberate falsehood reckless such of the court not But I decline to do because case. needing to, being policy, generally issues where there is no will not address those courts necessity to do so. give right to have "That affidavit is insufficient and the warrant must be to the automobile access thereof as the result quashed and the evidence seized received into evidence.” may the offi- did not determine whether The court disregard in reckless given cer’s information was misrepresenta- truth an intentional or was tion. errone- determining whether
The standards war- for a search information an affidavit ous determining whether should be excluded rant existed to issue the search cause probable Delaware, 438 US Franks set out were 2674; 57 L Ed 2d 155-156; 98 S Ct Franks stated: *12 App 38 op Opinion the Court that, makes a sub- the defendant where hold "[W]e statement showing that a false preliminary stantial disregard reckless intentionally, or with knowingly and truth, in the war- by included the affiant
for rant necessary is affidavit, allegedly false statement if the cause, the Fourth finding probable of hearing be held requires that a Amendment defendant’s hearing request. In the event that at disregard is estab- or reckless allegation perjury of preponderance of by the defendant lished evidence, and, material set to the affidavit’s false with side, remaining is insufficient content one to establish voided and the fruits the affidavit’s cause, must be probable the search warrant the same of the search excluded to lacking on the face of probable if cause was extent as the affidavit.” explained:
The court
later
is,
course,
presumption
validity
of
with
"There
of
supporting the search warrant.
respect
to the affidavit
challenger’s
evidentiary hearing,
To mandate an
conclusory
must be
attack must be more than
supported by more than a mere desire to cross-examine.
allegations falsehood or of
There must be
deliberate
truth,
disregard
allegations
and those
reckless
for the
accompanied by
proof. They
should
must be
offer
point
specifically
portion
of the warrant affida-
out
false;
they
vit
is claimd to be
should be
accompanied by
supporting
a statement
reasons.
Affidavits or sworn or otherwise reliable statements of
furnished,
witnesses should be
or their absence satisfac-
torily explained. Allegations
negligence
innocent
falsity
mistake are insufficient. The
or reck-
deliberate
disregard
impeachment
permitted today
less
only
is
whose
affiant,
any nongovernmental
that of the
not of
Id.,
(Emphasis supplied.)
informant.”
171.
Supreme
suggested
Our
Court has
that Franks
in Michigan.
now controls
It remanded
the case in
Price,
People
Mich
IV. Fruit of the poisonous tree.
rule,
Under
the exclusionary
evidence obtained
by methods violating
proscriptions
constitutional
is
excluded from
in
use
Mapp
prosecutions.
criminal
Ohio,
643;
367
1684;
US
81 S Ct
The trial court that de testimony against home and Seaver’s Seaver’s were ba examination4 preliminary fendant the of unlawful intrusions the two sically product on stop the March pretext privacy: defendant’s for the time learned first from which the name, address, from age of defendant the to run a the were able information which had ascertain LEIN check and Florida, of cocaine in possession arrested for been the lens through telescopic and the observation glassine packet concealed a that defendant had in the trunk of his car. containing powder white First, as we have disagree for four reasons. We I opinion, of this part stated in already a justifiable Terry-Whalen car was defendant’s Second, part determined stop. as investigatory through made this observations opinion, II of into not unlawful intrusions telescopic lens were Third, defendant’s car was privacy. had the police until two hours after searched home,5 error to claim and thus entered car precipitated the search of defendant’s Fourth, house. items seized the home taken before the search were people Randall as their first witness at called Seaver pursuant testifying preliminary He he was examination. stated that bargain charges conspiracy plea cocaine and to deliver to a *15 his possession dropped as to if he testified cocaine would dealings occasions He then that on several with defendant. stated Lansing brought at 830 Lake had cocaine the house defendant 21, 1979, brought had one-half and that Road on March paid plastic bags pound that he then to the in two and house defendant for the cocaine. 5 p.m., approximately the car was at 3 Defendant was arrested police garage pending for the of a search warrant towed to the search of the trunk. issuance 3:30. entered at about Seaver home was 6:28, the search The warrant for of the car issued at was about 8:30. of Seaver’s home was conducted App 38 107 Mich
56 Addi hours later. issued several for the house was no cocaine was noted that it should be tionally, Thus, car. the search in the trunk found search, illegal prior product any was not the search was claim and defendant’s fall. tree” must product poisonous "of the search showing In the absence of any the fruit of a warrant was the home without defendant, defen- against conduct prior challenge standing dant must demonstrate defined our Court as Standing search. has been follows: determining standing "The test for summarized States, 223, 229; 1565; 93
Brown v United
US
S Ct
(1973),
"A defendant need
under one of the
People Ray
three sections to contest a search.
v
Jack-
son,
487, 489;
(1976),
App
71 Mich
NW2d
Clark,
674,
People Morgan
App
692;
v
68 Mich
(1976) (Noble, J.,
Yet,
Brown,
dissenting).
NW2d
as
indicates,
supra,
normally
defendant must
demonstrate
legitimate
premises
some
interest
searched or
seized,
Hunt,
objects
United States v
505 F2d
(CA 5, 1974),
939-940
cert den
US
95 S Ct
In V.
summation.
At
our
point
helpful
this
it will be
to summarize
findings and to
or not the trial court
state whether
to
dismissing
charge
conspiracy
erred in
the
opinion,
deliver cocaine.
In our
the trial
(1)
illegal
erred in
the
made an
finding:
that
(2)
20, 1979;
pretext
stop of defendant on March
through
that
the enhanced
a camera
lens
view
finding
probable
could not be
support
used
(3)
arrest;
cause for defendant’s
that
it
unnec-
essary for the court
to follow the standard
set
Franks,
supra,
in
forth
and to determine whether
in
disregard
the
acted
reckless
of the truth
making
the
in support
affidavits
of the warrant
(4)
car;
to search defendant’s
that
the evidence
seized at
the Seaver house was the fruit of the
(5)
poisonous tree; and
that defendant had stand-
ing on
grounds
Fourth Amendment
to contest
the
search and seizure at the Seaver home. The trial
court did not err
when
found that
the search
without
a warrant
of the Seaver home was an
However,
act.
pro-
because the
right
tected from such
personal
unlawful
searches
is a
right which
may
be asserted
vicariously by
third party
possess
who does not
a reasonable
Rakas,
supra,
expectation
of privacy,
the evidence
seized should not have
suppressed
been
instant case. Accordingly, we reverse
remand
the case to the trial court for trial on
merits.
People
Ward
v
M.F.
P.J.
Cavanagh,
Dissent
Code of
Public Health
of the
Constitutionality
VI.
1978.
in the event
contends
defendant
appeal,
On
in quash
erred
trial court
finds that
this Court
evidence,
suppressing
warrants
ing the search
dropped
should be
charge against
Code, 1978 PA
Public Health
because
14.15(7101)
seq.,
et
et
seq.;
MSA
333.1101
MCL
Michigan
clause
title-object
violates
Constitution,
art
24. Defendant’s
Const
§
Court
before this
been
recently
has
argument
416, 420; 296
Trupiano,
(1980). In
lv den
Reversed and opinion. this accordance with (dissenting). Cavanagh, respectfully I P.J. M. F. to re- decision majority’s from the would dissent evidence suppression the trial court’s verse in this case. challenge lacks
Although Amend- on Fourth of Seaver’s house the search have the I that courts grounds, recognize ment grounds process on due duty to exclude power shocking to are means which by obtained evidence California, 342 US Rochin v the conscience. (1952). When 205; 96 L Ed 2d 172; 72 S Ct 107 Mich by Cavanagh, M. F. P.J. Dissent police upon purposeful illegality embark obtaining evidence, results relevant courts admitting by should not sanction that conduct Thus, such evidence at trial. if a defendant can illegal establish that an search is more than an negligent innocent or mistake and that the purposeful disregard acted in of the law with the building against deliberate intention a case prod- any defendant, the trial court should exclude illegal public uct of such action as a matter of policy, and as a deterrence to future action police.
In the instant case it cannot be determined from
the record whether such misconduct occurred in
the search of defendant’s car and the search of the
Szilagyi
Seaver house. Did Officer
"invent” the
glassine
story
package containing
that he
saw
powder
justify
white
in order to
issuance of a
honestly
search,
or did he
but errone-
ously believe that he saw what he described? This
question
only
by determining
can
be answered
credibility of the witnesses involved. The trial
court alone should make this determination after
testimony.
it has the benefit of
Accordingly, I would remand this cause to the
remand,
trial court. On
the trial court should
apply the standard set forth in
Delaware,
Franks v
438 US
98 S Ct
Likewise, if defendant establishes illegality, of the Seaver fruits of the search para- including and narcotic home, the cocaine testimony phernalia therein, Seaver’s and seized suppressed. immunity grant should be under stop of the defen- that I am concerned also trooper by was the state automobile dant’s simply stop pretext to obtain defendant’s used any information. other available and identification presented no evidence which with This court was police officer’s state- the state would substantiate illegal turn. made an No the defendant ment that stop was to the defendant. issued citation was observing the had who been after authorities made activities and the defendant’s Seaver home they state radioed the movements I do not believe identified. the defendant wanted investigatory Terry-Whalen reasonable identification was of defendant’s seizure by police known circumstances the facts and under stop. Defendant’s automobile the time of the they sought police, identity used a specious information. to discover traffic expanded Terry should and Whalen police activity. permit such hearing in accor- Franks I would remand for a opinion. dance with this