Opinion
No. 105430.
May 13, 1996.
Summary Dispositions May 13, 1996:
In lieu of granting leave to appeal, the judgment of the Court of Appeals is reversed. MCR 7.302(F)(1). The permissible scope of the search is determined by the search warrant. The search warrant authorized a search of a single family residence. That is precisely what happened in the instant case. Accordingly, the trial court did not err in denying defendant's motion to suppress. The matter is remanded to the Court of Appeals for resolution of the other issues raised previously by the defendant but unaddressed by the Court of Appeals in light of their disposition of the search and seizure issue. Jurisdiction is not retained.
I concur with the statement of Justice LEVIN.
I would deny leave to appeal, and dissent from the order of peremptory reversal of the Court of Appeals.
Defendant Elias Cortez was the lessee of premises known as 2110 Lake Lansing Road, Lansing Township, Michigan. He rented rooms in that house to two other individuals, one being Conrado Gonzalez, the individual named in an affidavit for a search warrant and the suspect respecting the search.
The affiant, a police officer, swore that a confidential informant told him that cocaine and marijuana were being sold out of the house, and that the informant had seen about six pounds of marijuana and about two ounces of cocaine at the house in the last twenty-four hours. The affidavit also states that the informant told affiant that Gonzalez was selling drugs at the house. The affidavit further states that on the same day the affidavit was prepared, the affiant observed the informant enter the house without drugs and leave twenty-five minutes later with cocaine and marijuana. The officer obtained a search warrant to search the "single family" residence at 2110 Lake Lansing Road.
Officers executed the search, and, as a result, Cortez and Gonzalez were charged with possession with intent to deliver various controlled substances found in their respective bedrooms.
The district judge denied a motion to suppress. The circuit judge affirmed.
The jury convicted Cortez of the lesser included offense of misdemeanor possession.
I
In an unpublished per curiam opinion, the Court of Appeals agreed with Cortez that the search of his private bedroom went beyond the scope of the warrant, and that the circuit judge erred in denying Cortez's motion to suppress.
The Court of Appeals said:
Defendant raises several issues involving the validity of the search warrant and subsequent search of his bedroom, one of which we find dispositive. We agree with defendant that the search of his private bedroom went beyond the scope of the warrant. Before searching defendant's bedroom, the police officers executing the warrant were made aware that the person named in the warrant rented a room in defendant's house. The officers had no reason to believe that the named person had access to defendant's bedroom. See People v Foster, 174 Mich. App. 505; 436 N.W.2d 397 (1988). See also Maryland v Garrison, 480 U.S. 79; 107 S Ct 1013; 94 L Ed 2d 72 (1987).
Unlike the situation in Garrison, here the police knew that the search warrant referred to drugs being sold by Gonzalez, and they had already found drugs in Gonzalez' bedroom before the continued search of the residence that resulted in finding drugs in Cortez's bedroom.
In Garrison, three justices, dissenting, thought that even if a reasonable error on the part of the police officer prevents a Fourth Amendment violation, the mistakes in that case, "both with respect to obtaining and executing the warrant, are not reasonable and could easily have been avoided." 480 U.S. 101. The majority of justices said that, "[p]lainly, if the officers had known, or even if they should have known, that there were two separate dwelling units on the third floor of 2036 Park Avenue, they would have been obligated to exclude respondent's apartment from the scope of the requested warrant." 480 U.S. 85.
The warrant authorized a search of the person of the suspect and also "`the premises known as 2036 Park Avenue third floor apartment. . . .'" When the police applied for the warrant and when they conducted the search, they believed that there was only one apartment on the third floor. The third floor was, however, in fact, divided into two apartments, one occupied by the suspect named in the warrant and one by another person. The police searched the wrong apartment and, before they became aware of their mistake, discovered and seized contraband.
The United States Supreme Court ruled that the warrant, insofar as it authorized a search that turned out to be ambiguous in scope was valid under the Fourth Amendment because the officer who obtained the warrant reasonably believed that the person whose apartment was intended to be searched was the only tenant on the third floor, and because the discovery that there were two separate apartments was made only after they had found the contraband.
Although a private bedroom can be distinguished from an apartment, the rationale of Garrison supports the Court of Appeals reversal in this case.
The determination of the Court of Appeals was not so devoid of reason as to justify peremptory reversal. The majority's decision to peremptorily reverse the decision of the Court of Appeals belittles its efforts in the disposition of this case, as reflected in its opinion, and deprives Cortez and his counsel of an opportunity to fully brief and orally argue in support of the decision of the Court of Appeals.
Today's peremptory order reflects an increasingly common method of deciding cases, a method that does not provide safeguards against hasty and ill-considered decisions, a method that is unsafe.
When this Court grants leave to appeal, there is an opportunity to educate the justices concerning the state of the record and the law through oral argument, as well as visually through briefs. A justice who may have missed a significant point of law or fact on perusal of the materials considered before voting for peremptory reversal might be enlightened and persuaded in the course of oral argument.
Also lost, when this Court acts without plenary consideration, is the opportunity for conference discussion after oral argument, and further conference discussion after an opinion has been prepared and circulated.
Peremptory disposition, without plenary consideration, full briefing, oral argument, and an opportunity for the profession to file briefs as amici curiae, should be reserved for cases in which the law is settled and factual assessment is not required. In the instant case, factual and legal assessment is required. Peremptory disposition is not appropriate.
People v Wright, 439 Mich. 914, 914-915 (1992) (LEVIN, J., dissenting); Roek v Chippewa Valley Bd of Ed, 430 Mich. 314, 322 (1988) (LEVIN, J., separate opinion); Grames v Amerisure Ins Co, 434 Mich. 867, 868-875 (1990) (LEVIN, J., dissenting); People v Little, 434 Mich. 752, 769-770 (1990) (LEVIN, J., dissenting); People v Wrenn, 434 Mich. 885, 885-886 (1990) (LEVIN, J., dissenting); Harkins v Northwest Activity Center, Inc, 434 Mich. 896, 899 (1990) (LEVIN, J., dissenting); Dep't of Social Services v American Commercial Liability Ins Co, 435 Mich. 508, 515 (1990) (LEVIN, J., separate opinion); Yahr v Garcia, 436 Mich. 872, 872-873 (1990) (LEVIN, J., dissenting); Universal Underwriters Ins Co v Vallejo, 436 Mich. 873, 873-874 (1990) (LEVIN, J., dissenting); People v Stephens, 437 Mich. 903, 903-910 (1991) (LEVIN J., dissenting); People v Berkey, 437 Mich. 40, 54 (1991) (LEVIN, J., dissenting); Turner v Washtenaw Co Rd Comm, 437 Mich. 35, 38-39 (1991) (LEVIN, J., separate opinion); Lepior v Venice Twp, 437 Mich. 955, 956-966 (1991) (LEVIN, J., dissenting); Rochester Hills v Southeastern Oakland Co Resource Recovery Authority, 440 Mich. 852, 852-856 (1992) (LEVIN, J., dissenting); In re Reinstatement of Eston (Grievance Administrator v Eston), 440 Mich. 1205, 1205-1207 (1992) (LEVIN, J., dissenting); In re Reinstatement of Callanan, 440 Mich. 1207, 1207-1209 (1992) (LEVIN, J., dissenting); McFadden v Monroe Civil Service Comm, 440 Mich. 890, 890-891 (1992) (LEVIN, J., dissenting); Holly Twp v Dep't of Natural Resources (Holly Twp v Holly Disposal, Inc), 440 Mich. 891, 891-893 (1992) (LEVIN, J., dissenting); Marzonie v ACIA, 441 Mich. 522, 535-539 (1992) (LEVIN, J., dissenting); People v Waleed, 441 Mich. 902, 902-903 (1992) (LEVIN, J., dissenting); People v Hardison, 441 Mich. 913, 914-916 (1993) (LEVIN, J., dissenting); People v Justice, 441 Mich. 916, 917-919 (1993) (LEVIN, J., dissenting); People v LaClear, 442 Mich. 867, 867-871 (1993) (LEVIN, J., dissenting); Auto-Owners Ins Co v City of Clare, 446 Mich. 1, 16-18 (1994) (LEVIN, J., dissenting); Weisgerber v Ann Arbor Center for the Family, 447 Mich. 863, 863-869 (1994) (LEVIN, J., dissenting); Howard v White, 447 Mich. 395, 405-410 (1994) (LEVIN, J., dissenting).
See Schweiker v Hansen, 450 U.S. 785, 791 (1981) (Marshall, J., dissenting) ("A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error"); Leis v Flynt, 439 U.S. 438, 457-458 (1979) (Stevens, J., dissenting) ("Summary reversal 'should be reserved for palpably clear cases of . . . error.' Eaton v Tulsa, 415 U.S. 697, 707 [1974] [Rehnquist, J., dissenting]").