PEOPLE v WARES
Docket No. 69061
Court of Appeals of Michigan
Submitted June 7, 1983. Decided September 27, 1983.
129 Mich. App. 136
1. The affidavit was sufficient. It described the criminal activity in an extensive and detailed manner, such that the magistrate could know that the unnamed informant was relying on something other than a rumor or the defendant‘s reputation.
2. The affidavit did not specifically state that the informant‘s reliability was supported by a series of controlled buys of narcotics, which were described in the affidavit. However, the controlled buys themselves established probable cause to believe that a continuing drug sale enterprise was being conducted, sufficient to support issuance of the search warrant.
Affirmed.
R. M. MAHER, J., concurred in holding thаt the affidavit was sufficient to support issuance of the search warrant and disavowed the reasoning of a prior decision in which he participated, People v David, 119 Mich App 289 (1982), which might require a different result.
OPINION OF THE COURT
1. SEARCHES AND SEIZURES — SEARCH WARRANTS — AFFIDAVITS.
An affidavit in support of a search warrant, when based on the hearsay declarations of a confidentiаl informer, must inform
REFERENCES FOR POINTS IN HEADNOTES
[1] 68 Am Jur 2d, Searches and Seizures § 65.
[2] 68 Am Jur 2d, Searches and Seizures §§ 67, 68.
[3] 68 Am Jur 2d, Searches and Seizures §§ 64, 68.
2. SEARCHES AND SEIZURES — SEARCH WARRANTS — PROBABLE CAUSE — CONTROLLED BUYS OF NARCOTICS.
A series of controlled buys of narcotics serves to establish the probable cause to believe that a continuing drug sale enterprise is being conducted, sufficient to support issuance of a search warrant in the absence of contrary circumstаnces.
CONCURRENCE BY R. M. MAHER, P.J.
3. SEARCHES AND SEIZURES — SEARCH WARRANTS — AFFIDAVITS — PROBABLE CAUSE.
An affidavit, in order to support issuance of a search warrant, need only establish probable cause to believe that the items sought are where they are alleged to be; thus, a description of a controlled buy of narcotics at a place sought to be searched is sufficient to establish the probable cause necessary to issue a search warrant for that place unless other circumstances indicate otherwise.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William T. Grimmer, Prosecuting Attorney, and Susan Lee Dobrich, Chief Assistant Prosecutor, for the people.
Harrison Law Offices, P.C. (by Philip B. Harrison), for defendant on appeal.
Before: R. M. MAHER, P.J., and GRIBBS and K. N. SANBORN,* JJ.
GRIBBS, J. The defendant, John Quincy Wares, brings this interlocutory appeal to challenge the denial of his motion to suppress the fruits of a search warrant. Wares has been charged with possession of marijuana with intent to deliver,
* Circuit judge, sitting on the Court of Appeals by assignment.
A policе officer‘s affidavit accompanied the request for a search warrant. The affidavit stated:
“Affiant states he is a Police Officer for the Cass County Sheriff Department. Affiant further states that he has been employed by the Cass County Sheriff Dep‘t for nine years and is currently a Det Sgt. Affiant states that he is in charge of the narcotics division and is a certified instructor for police recruits on vice investigation. Affiant states that he was in contact with an individual who stated that he has bought marijuana from John Wares at least 30 times. These transactions took place at the above location in the last year. Further, the informant told this affiant that when he purchased marijuana he had observed large quantities of marijuana at the above location, more specifically in the attic during this period. Further this informant told this affiant that he has observed the purchase of marijuana by various other individuals from John Wares over this period.
“Further this affiant states that this informant has made two buys from John Wares and that this affiant took part in those transactions, and that they were controlled buys.
“This affiant states that hе conducted a pat-down search of the informant before the buys were made. The buys were made at the above address.
“Further this affiant states after the buys were made the informant returned to a prearranged meeting place and turned over the substance bought. The material
turned over to this affiant was a brown leafy substance appearing to be marijuana.
“This affiant states that he personally observed marijuana on at least 1000 occasions, and that the material bought appeared to be marijuana. Further this affiant states that the informant told him that he has purchased marijuana from John Wares at the above location on various occasions and that this affiant participated in at least two of them one occurring within the last 48 hours.
“Based on the above facts, affiant stаtes that this has been a continuing enterprise at this residence.”
The defendant argues that the affidavit falls short of the standards for affidavits containing hearsay declarations of confidential informers announced in Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d 637 (1969), and People v David, 119 Mich App 289; 326 NW2d 485 (1982).
“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was ‘credible’ or his information ‘reliable.’ Otherwise, ‘the inferences from the facts which lead to the complaint’ will be drawn not ‘by a neutral and detached magistrate,’ as the Cоnstitution requires, but instead, by a police officer ‘engaged in the often competitive enterprise of ferreting out crime,’ or, as in this case, by an unidentified informant.” Aguilar v Texas, 378 US 114, 115 (citations and footnote omitted).
The United States Supreme Court recently abandoned the Aguilar-Spinelli two-pronged analysis
In our case, the affidavit easily passes the first prong of the test. That prong is satisfied if the tip describes the alleged criminal activity in sufficient detail so that the magistrate knows that the informant is relying on something other than а rumor or the accused‘s reputation. The informant told the affiant that he had bought marijuana from Wares at least 30 times, including the two purchases involved in the controlled buys; that he had made these purchases in the place to be searched; that he had observеd large amounts of marijuana at that place; and that he had seen other people purchase marijuana from Wares. Because the hearsay allegations are extensive and detailed, they are sufficient to satisfy the first prong.
The defendant assеrts that the second prong is unmet because the affidavit did not state that the informant was credible or his information reliable based on past tips. This argument finds support in People v David, 119 Mich App 289; 326 NW2d 485 (1982). In David the informant participated in a controlled buy in a house trailer. The affidavit contained no statemеnt “that the informant was credible or that his information had proven relia-
The officer‘s affidavit did not specifically state that the controlled buys supported the informant‘s reliability, and we concede that it is possible the magistrate did not therefore consider them as underlying circumstances showing the reliability of the information given. Nonetheless, the controlled buys support the search warrant even if the hearsay statements of the informant are entirely disregarded.3 It is on this point, too, that we
The trial court upheld the warrant, and we affirm the trial court. The case is remanded for continuation of trial.
K. N. SANBORN, J., concurred.
R. M. MAHER, P.J. (concurring). I agree with the majority that the trial court‘s denial of the defendant‘s motion to suppress evidence seized pursuant to a search warrant should be affirmed. On its way to affirmance, the majority rejects the holding of this Court in People v David, 119 Mich App 289; 326 NW2d 485 (1982). I was on the panel that decided David and the present case has caused me to reexamine its precepts. After rethinking that opinion, I now believe that David was incorrectly decided.
In David, the affidavit contained a hearsay statement received from an unnamed informant. The informant had told the affiant that his marijuana had been purchased from someone in a trailer. The affidavit then describеd a “controlled buy“:
“The informant was searched and found not to be in possession of drugs. While under constant police surveillance, the informant entered the trailer. When the informant returned to the police, he possessed drugs.” David, supra, p 294.
tial informants which led to the investigation (and controlled buys) are superfluous.
David, nevertheless, concluded that the hearsay in the affidavit failed to pass the Aguilar-Spinelli test. The Court then considered whether the other allegations in the affidavit—namely, those describing the controlled buy—were sufficient to establish probable cause. The Court concluded that they were not sufficient:
“We are not convinced that a controllеd buy alone is enough to establish probable cause for the issuance of a search warrant. There must be some indication of the reliability of the buyer-informant so that a conclusion that a purchase actually took place may be legitimately drawn.” David, supra, p 295.
The majority opinion in the present case criticizes
Insofar as David is inconsistent with the above remarks, I disavow it. My reflections on thаt case cause me to conclude that the affidavit involved in the case now before us is adequate. The hearsay was sufficiently detailed and extensive to pass the first prong of the Aguilar-Spinelli test. The second prong is also satisfied. The description of the controllеd buys reveals the underlying circumstances from which the affiant concluded that the informant‘s information was reliable. Moreover, the controlled buys alone establish probable cause to believe that the marijuana was located in the place to be searched.
I conclude, along with the majority, that the search warrant was not defective and that the trial court‘s denial of defendant‘s suppression motion should be affirmed.