Opinion
Docket No. 45905.
Decided August 15, 1980. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.
Robert W. Plumpe, for defendant on appeal.
On February 23, 1979, Detroit police officers executed a search at a two-family residence, dwelling numbers 5337 and 5339 Hurlbut, in the City of Detroit. They were armed with a search warrant ordering them to search a dwelling known as 5335 Hurlbut located in the City of Detroit. The warrant contained the additional description of a two-story, two-family, frame dwelling with asbestos siding. At the time of the search, there was no residential dwelling at 5335 Hurlbut, that address corresponding to a vacant lot.
As a result of the search, a quantity of cocaine was seized and the defendant was charged with unlawful possession of cocaine. A motion to suppress was filed and granted, the case being dismissed. The people appeal.
Defendant cites the case of People v Musk, 221 Mich. 578; 192 N.W. 485 (1922), as authority for the proposition that the search of premises with a street number different from that set forth in the warrant is a trespass and in violation of the constitutional rights of the occupant. In People v Flemming, 221 Mich. 609; 192 N.W. 625 (1923), the Court refused to follow Musk where the erroneous house number was coupled with sufficient descriptive language to properly identify the place to be searched. See also People v Lienartowicz, 225 Mich. 303; 196 N.W. 326 (1923), and People v Urban, 228 Mich. 30; 199 N.W. 701 (1924).
We are satisfied that the description of the premises contained in the affidavit and warrant brings this case within the rule set forth in Flemming, supra, 615, and followed in Lienartowicz, supra, 305, that "a description pointing out a definitely ascertainable place in terms of reasonable certainty is sufficient".
The order suppressing the evidence is reversed and the case remanded for further proceedings.