Opinion
Docket Nos. 87948, 87949.
Decided August 5, 1986. Leave to appeal denied, 426 Mich. 876.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Wesley J. Nykamp, Prosecuting Attorney, and Gregory J. Babbitt, Assistant Prosecuting Attorney, for the people.
Catchick Dodge (by David A. Dodge), for defendant on appeal.
Following a bench trial, Allen Tanis was convicted of possession with intent to deliver PCP, MCL 333.7401(1) and (2)(b); MSA 14.15(7401)(1) and (2)(b), possession of less than fifty grams of cocaine, MCL 333.7403(1) and (2)(a)(iv); MSA 14.15(7403)(1) and (2)(a)(iv), and possession of LSD, MCL 333.7403(1) and (2)(b); MSA 14.15(7403)(1) and (2)(b). He subsequently pled guilty to a charge of being an habitual offender, second felony offense, MCL 769.10; MSA 28.1082, and was sentenced to a prison term of from four to fourteen years.
Clarinda Tanis tendered a conditional plea of guilty to a charge of attempting to possess less than fifty grams of cocaine, MCL 750.92; MSA 28.287, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv), and was sentenced to two years probation with the first ninety days to be spent in the county jail.
In these consolidated appeals as of right, defendants ask this Court to review the denial of Allen Tanis' motion to suppress evidence of drugs and drug paraphernalia seized during the search of their home. A trial court's decision on a motion to suppress will be reversed only if the trial court abused its discretion or if its decision was clearly erroneous. People v Potter, 115 Mich. App. 125, 134; 320 N.W.2d 313 (1982).
On January 16, 1985, a search warrant was issued authorizing the search of defendants' home for drugs, drug paraphernalia and drug-related items such as records of drug transactions. The affidavit upon which the warrant was issued was based on information supplied by an informant. In this motion to suppress, defendant Allen Tanis argued that the affidavit failed to meet the requirements of MCL 780.653; MSA 28.1259(3), as set forth in People v Sherbine, 421 Mich. 502; 364 N.W.2d 658 (1984). In Sherbine, supra, pp 509-510, the Supreme Court held that, pursuant to the statute, an affidavit based on informant hearsay must meet three requirements: (1) the affidavit must contain affirmative allegations that the informant spoke with personal knowledge; (2) the affidavit must set forth facts from which one may conclude that the informant is credible; and (3) the information must be shown to be reliable.
The statute provides:
The magistrate's finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him. The affidavit may be based upon reliable information supplied to the complainant from a credible person, named or unnamed, so long as the affidavit contains affirmative allegations that the person spoke with personal knowledge of the matters contained therein.
The trial court acknowledged that the affidavit in the instant case failed to satisfy the three-pronged test of Sherbine, but held that Sherbine was not controlling because it was released two weeks after the issuance of the search warrant. The court then determined that under the Michigan Constitution, the affidavit supported a determination of probable cause by the magistrate under the two-pronged " Aguilar - Spinelli test" as well as the totality of the circumstances test of Illinois v Gates.
Sherbine was decided on December 28, 1984, but was not released until February 1, 1985. The search warrant in this case was issued on January 16, 1985.
Const 1963, art 1, § 11.
Aguilar v Texas, 378 U.S. 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964).
Spinelli v United States, 393 U.S. 410; 89 S Ct 584; 21 L Ed 2d 637 (1969). Under the Spinelli test, which refined the Aguilar test, an affidavit based on informant hearsay must state: (1) why the informant is reliable; and (2) the underlying circumstances from which the informant drew his conclusions.
Illinois v Gates, 462 U.S. 213; 103 S Ct 2317; 76 L Ed 2d 527 (1983). In Gates, the United States Supreme Court overruled Spinelli and held that a probable cause decision under the Fourth Amendment requires a common-sense determination whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of the crime will be found in a particular place.
On appeal, defendants argue that Sherbine should be given retroactive application. The prosecution argues that should this Court determine that Sherbine is controlling, it should adopt the good-faith exception to the exclusionary rule, as did the United States Supreme Court in United States v Leon, 468 U.S. 897; 104 S Ct 3405; 82 L Ed 2d 677 (1984), and affirm the trial court's denial of the motion to suppress.
The trial court concluded that "the Michigan Supreme Court is likely to adopt the good-faith exception to the exclusionary rule as a principle of Michigan constitutional law." The trial court then determined that the good-faith exception to the exclusionary rule applied to the facts of this case. We note, however, that such a determination was not necessary to the case as the court had previously held that the affidavit was sufficient under both the Aguilar-Spinelli and Gates tests. If an affidavit is sufficient, and the search warrant is otherwise valid, then neither the exclusionary rule nor the good-faith exception to that rule apply.
We disagree with the trial court's conclusion that the three-pronged test for the sufficiency of an affidavit based on informant hearsay, as set forth in Sherbine, is inapplicable. As a general rule, decisions of Michigan appellate courts are to be given full retroactivity unless limited retroactivity is justified. Moorehouse v Ambassador Ins Co, 147 Mich. App. 412, 420-421; 383 N.W.2d 219 (1985). Decisions involving a change in settled law usually have limited retroactivity. Tebo v Havlik, 418 Mich. 350, 360-361; 343 N.W.2d 181 (1984), reh den 419 Mich. 1201 (1984), citing Parker v Port Huron Hospital, 361 Mich. 1; 105 N.W.2d 1 (1960) (doctrine of charitable immunity overruled); Bricker v Green, 313 Mich. 218; 21 N.W.2d 105 (1946) (doctrine of imputed negligence overruled). Where statutory construction has been involved, the retroactivity of a decision is limited when justice so requires. Tebo, supra, p 361, citing Gusler v Fairview Tubular Products, 412 Mich. 270; 315 N.W.2d 388 (1981); Franges v General Motors Corp, 404 Mich. 590; 274 N.W.2d 392 (1979).
Although Sherbine involved the construction of a statute, we do not believe it involved a change in settled law. MCL 780.653; MSA 28.1259(3) was enacted after the Aguilar decision was rendered. The Legislature, in enacting the statute, codified the two-pronged test of Aguilar and added a third requirement. Sherbine, supra, p 509. In People v Rodriguez, 65 Mich. App. 723, 727; 238 N.W.2d 385 (1975), lv den 396 Mich. 852 (1976), this Court, without citation to either Aguilar or Spinelli, applied a three-pronged analysis of MCL 780.653:
We read the statute as covering two types of affidavits, namely: one in which the affiant states facts, and one in which the affiant states only informant information. The latter type may be sufficient if the information is reliable, from a credible person and if the affidavit contains affirmative allegations that the informant spoke with personal knowledge of the information. [Emphasis added.]
We conclude that Sherbine should have retroactive effect on all cases arising after the Sherbine decision wherein the issue is raised.
The affidavit in the instant case contained the following statement of facts establishing probable cause or the grounds for the search:
On 9-30-83 an informant under surveillance by the West Michigan Enforcement Team purchased suspected methamphetamine from Allen Gene Tanis. On 10-10-83 the same informant purchased, under W.E.M.E.T. surveillance, suspected marijuana. On 10-4-83 the same informant purchased, under W.E.M.E.T. surveillance, suspected marijuana and suspected methamphetamine. On 11-1-83 the same informant purchased, under W.E.M.E.T. surveillance, suspected PCP, and suspected marijuana. All of the surveillance of the above purchase was conducted by W.E.M.E.T. officers under my command as the D/LT in charge of the W.E.M.E.T.
In March, 1984, one subject was arrested by W.E.M.E.T. officers and charged with delivery of cocaine, delivery of LSD. This subject informed officers that he had purchased LSD from Allen Gene Tanis.
In late summer of 1984 a suspect who had sold cocaine to W.E.M.E.T. officers was followed immediately prior to the sale, to the above described residence.
At 6:00 P.M. on 1-16-85 this affiant was advised by an informant who had been in the above described resident repeatedly in the last two weeks, and as recently [as] January 14, 1985, that he had observed marijuana, suspected cocaine, suspected methamphetamine. Informant stated also that a triple beam scale, a cocaine grinder, and packaging material was observed. The suspected cocaine was in rock and powder form and was represented by Allen Gene Tanis to be cocaine.
The trial court concluded that the affidavit did not meet the statutory requirements set forth in Sherbine because it did not set forth facts from which one may conclude that the informant was credible. We agree with the trial court and conclude that the affidavit is deficient under the statute. Accordingly, the warrant is invalid and the evidence should have been suppressed. Sherbine, supra, pp 509-510; People v Mitchell, 142 Mich. App. 518, 520; 370 N.W.2d 392 (1985).
The trial court also stated:
While the 1983 incidents referred to in the affidavit were too remote and too speculative to be considered, the information received on January 16, 1985, was specific and timely. Facts stated as to the 1984 incidents constituted corroboration of the reliability of the January 16, 1985 information.
Although independent surveillance was done by the police, the facts setting forth the police officers' surveillance of defendants' home in the summer of 1984 do not give rise to probable cause to believe that the evidence to be seized would be found in defendants' home.
The prosecution urges us to adopt a good-faith exception to the exclusionary rule. In United States v Leon, supra, the United States Supreme Court held that evidence seized by officers in reasonable reliance on a warrant issued by a detached and neutral magistrate should be admissible in the prosecution's case in chief.
Michigan courts have not adopted a similar exception to the exclusionary rule of the Michigan Constitution and we decline to do so herein. Prior to the Leon decision, this Court, in an opinion written by Judge (now Justice) CAVANAGH, refused to adopt a good-faith exception to the exclusionary rule. People v David, 119 Mich. App. 289, 297-298; 326 N.W.2d 485 (1982), lv den 417 Mich. 858 (1983). Our Supreme Court also had an opportunity to adopt the good-faith exception prior to Leon but declined to do so. People v Bloyd, 416 Mich. 538, 556; 331 N.W.2d 447 (1982). Sherbine was decided six months after the United States Supreme Court decided Leon, but is silent on the issue. Until we are directed otherwise, we will not adopt a rule that, where the police act in good faith and reasonable reliance on a search warrant which is issued in violation of a statute, the exclusionary rule will not be applied.
Const 1963, art 1, § 11.
Accordingly, the trial court's decision to admit the evidence seized in the search of defendants' home is reversed. Allen Tanis' convictions are reversed. Clarinda Tanis is entitled to withdraw her plea of guilty. People v Reid, 420 Mich. 326, 337; 362 N.W.2d 655 (1984).
Reversed and remanded.