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People v. Russo

Supreme Court of Michigan
Jun 2, 1992
439 Mich. 584 (Mich. 1992)

Summary

holding that a six-and-one-half-year-old allegation of child pornography possession was not stale because it was supported by credible testimony alleging that the defendant committed sexual assault against a child

Summary of this case from Kinder v. State

Opinion

Docket No. 90088.

Argued November 6, 1991 (Calendar No. 6).

Decided June 2, 1992.

Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Helen V. Brinkman, Assistant Prosecuting Attorney, for the people.

Harold U. Smiley, Jr., for the defendant.



We granted leave in this case to determine whether the amended statute of limitations set forth in MCL 767.24(2); MSA 28.964(2) applies to the prosecution of a charge of criminal sexual assault involving a minor where the alleged acts were committed prior to, yet were not time-barred on, the effective date of the amendment. The prosecution's cross appeal was granted to answer the question whether the warrant authorizing the search of the defendant's home was supported by an affidavit establishing probable cause if the amended statute governs prosecution.

We find that the extended limitation period for criminal sexual conduct involving a minor was intended by the Legislature to apply to formal charges of offenses not time-barred on the effective date of the act filed after its effective date. This application is not a violation of the Ex Post Facto Clauses of the United States and Michigan Constitutions.

Michigan has adopted a dual system of charging by indictment or information. MCL 767.1; MSA 28.941. We treat the term indictment here as also referring to charges made by the filing of an information.

US Const, art I, § 10, cl 1; Const 1963, art 1, § 10.

In response to the second question, we hold that the supporting affidavit provided the magistrate a substantial basis to conclude that there was probable cause to believe that the evidence to be seized would be found in the place to be searched.

We affirm the decision of the Court of Appeals on the statute of limitations issue and reverse its decision on the search and seizure issue.

I

FACTS AND PROCEEDINGS

The defendant was charged with three counts of criminal sexual conduct in the first degree, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), and three counts of criminal sexual conduct in the second degree, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a). The counts involved one child victim under the age of thirteen.

On April 25, 1989, the Grand Rapids Police Department received information from the victim, then age sixteen, that over a four-year span between the time she was five and ten years old, she had been sexually assaulted by the defendant every other weekend. The assaults allegedly occurred between the fall of 1978 and August, 1982. On April 27, 1989, a warrant was issued for a search of the defendant's residence on the basis of an affidavit, the details of which are set forth below. An abundance of homemade and commercial child pornography tapes, sexually explicit photographs, pornographic magazines, sexual paraphernalia, video, television and camera equipment, letters, drawings, and a list of 192 children's names were seized during the execution of the search warrant. The evidence seized included sexually explicit videotapes and photographs of the victim. As a result of the seizure, the defendant was arrested on April 28, 1989, and charged with criminal sexual assaults of the child.

A review of the seized videotapes enabled police officers to identify a second victim. The prosecutor conceded, however, that the last sexual assault on this child occurred in 1978 and that the limitation period had expired before the Legislature amended the statute of limitations. Accordingly, the charges against the defendant relating to the sexual assault of the second victim were dismissed.

The statute of limitations in effect at the time of the alleged acts was six years. It is undisputed that, under the previous limitation period, the charges made would have been barred as of August, 1988. However, before the running of the then-applicable six-year period of limitation, the Legislature amended the statute. 1927 PA 175, as amended by 1987 PA 255, MCL 767.24(2); MSA 28.964(2), provides in part:

Notwithstanding subsection (1), if an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense under section 145c or 520b to 520g of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.145c and 750.520b to 750.520g of the Michigan Compiled Laws, may be found and filed within 6 years after the commission of the offense or by the alleged victim's twenty-first birthday, whichever is later.

The amendment became effective on March 30, 1988, five months before the previous statute of limitations would have expired.

The defendant filed a motion to suppress the evidence and to dismiss the charges, claiming that the action was barred by the statute of limitations and that the warrant was defective. The trial court granted both motions, agreeing that the amended statute could not be applied to crimes committed before its effective date and that the information supporting probable cause to search was "stale." The trial court ordered that the charges against the defendant be dismissed. The people appealed of right the trial court's rulings on the statute of limitations and the search and seizure issues, and the Court of Appeals reversed in part and affirmed in part. The Court held that the Legislature intended the amendment to apply to offenses not time-barred on the effective date of the act.

In People v Chesebro, 185 Mich. App. 412; 463 N.W.2d 134 (1990), a different panel of the Court of Appeals also held that MCL 767.24(2); MSA 28.964(2) applied to crimes committed before the amendment not time-barred on the effective date. The defendant in Chesebro appealed, and this Court held that case in abeyance pending our decision in the instant case.

Regarding the search and seizure issue, the Court of Appeals agreed that probable cause did not exist and affirmed the lower court's ruling that the search warrant was defective and the resulting seizure was illegal.

We granted the defendant's application for leave to appeal the statute of limitations issue, and the cross-application for leave to appeal the search and seizure issue. 437 Mich. 925 (1991).

II

STATUTE OF LIMITATIONS

The Legislature amended the Code of Criminal Procedure to provide:

[I]f an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense . . . may be found and filed within 6 years after the commission of the offense or by the alleged victim's twenty-first birthday, whichever is later. [ 1987 PA 255, MCL 767.24(2); MSA 28.964(2).]

The prosecution asserts that the extended limitation period applies to those offenses that were committed before the amendment, but were not yet time-barred under the previous statute of limitations. The defendant contends that because the amendment does not specifically state that it applies to offenses arising before its effective date, the amendment is not applicable. The defendant also submits that the rules of statutory construction and the prohibition against ex post facto laws proscribe its application to this case. Dealing with the claims in inverse order, we hold that neither ex post facto analysis nor application of the general statute of limitations requires dismissal.

The people do not contend that the extended statute of limitations may revive offenses that were barred at the time the amended statute became effective.

US Const, art I, § 10, cl 1 provides that "No State shall . . . pass any Bill of Attainder, ex post facto Law. . . ."
Const 1963, art 1, § 10 provides that "No bill of attainder, ex post facto law . . . shall be enacted."

The United States Supreme Court has consistently held that the Ex Post Facto Clause, US Const, art I, § 10, cl 1, was intended to secure substantial personal rights against arbitrary and oppressive legislation, and not to limit legislative control of remedies and procedure that do not affect matters of substance. In Dobbert v Florida, 432 U.S. 282, 292-293; 97 S Ct 2290; 53 L Ed 2d 344 (1977), the Court stated:

See Collins v Youngblood, 497 U.S. 37; 110 S Ct 2715; 111 L Ed 2d 30 (1990); 16A Am Jur 2d, Constitutional Law, § 646, pp 607-609; 16A CJS, Constitutional Law, §§ 420-421, pp 372-374.

"It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto."

* * *

Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto. For example, in Hopt v Utah, 110 U.S. 574 [ 4 S Ct 202; 28 L Ed 262] (1884), as of the date of the alleged homicide a convicted felon could not have been called as a witness. Subsequent to that date, but prior to the trial of the case, this law was changed; a convicted felon was called to the stand and testified, implicating Hopt in the crime charged against him. Even though this change in the law obviously had a detrimental impact upon the defendant, the Court found that the law was not ex post facto because it neither made criminal a theretofore innocent act, nor aggravated a crime previously committed, nor provided greater punishment, nor changed the proof necessary to convict. Id. at 589.

An enactment will not escape a court's scrutiny under the Ex Post Facto Clause merely because a legislature has given it a procedural label. However, legislation will not be found violative of the clause simply because it works to the disadvantage of the defendant.

Collins, n 8 supra at 45.

Well-settled principles require the conclusion that applying the extended statute of limitations to the then-not-yet-time-barred alleged sexual assaults is not ex post facto. The sexual assaults were not innocent when committed, the quantum of punishment is unchanged, and the defendant has not been deprived of any defense available to him at the time the acts were committed. The statute of limitations defense was not available to the defendant at the time the assaults were committed or at the time the amendment became effective. The Legislature amended the statute of limitations five months before the defendant had any substantive right to invoke its protection. The statute of limitations defense remained available to the defendant after the amendment, just as it did immediately before the amendment went into effect.

Therefore, finding no violation of the Ex Post Facto Clause, we turn to the issue of legislative intent.

The general rule of statutory construction in Michigan is that a new or amended statute applies prospectively unless the Legislature has expressly or impliedly indicated its intention to give it retrospective effect. This rule applies equally to criminal statutes. However, an exception to the general rule is recognized where a statute is remedial or procedural in nature. Statutes that operate in furtherance of a remedy already existing and that neither create new rights nor destroy rights already existing are held to operate retrospectively unless a different intention is clear.

Selk v Detroit Plastic Products, 419 Mich. 1, 9; 345 N.W.2d 184 (1984).

People v Osteen, 46 Mich. App. 409, 413; 208 N.W.2d 198 (1973), lv den 390 Mich. 760 (1973).

Hansen-Snyder Co v General Motors Corp, 371 Mich. 480, 485; 124 N.W.2d 286 (1963).

Historically, there was no limitation period on the prosecution of common-law crimes. Statutes of limitation develop out of public policy and are acts of legislative will. There is no vested right in the running of a statute of limitation except when it has completely run and the action is barred. In re Straight Estate, 329 Mich. 319, 325; 45 N.W.2d 300 (1951). A statute of limitation "shelter has never been regarded as what now is called a `fundamental' right . . . [h]e may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control."

Chase Securities Corp v Donaldson, 325 U.S. 304, 314; 65 S Ct 1137; 89 L Ed 1628 (1945). See also 21 Am Jur 2d, Criminal Law, § 224, pp 410-411; 22 CJS, Criminal Law, § 197, pp 242-243.

In Michigan, statutes of limitations are generally regarded as procedural and not substantive in nature. Lothian v Detroit, 414 Mich. 160, 166; 324 N.W.2d 9 (1982); Forest v Parmalee, 402 Mich. 348, 359; 262 N.W.2d 653 (1978). This concept also has been applied to changes in criminal procedure. People v Foster, 261 Mich. 247, 255; 246 N.W. 60 (1933). Extending the length of time allowed to bring a criminal prosecution that is not time-barred is a procedural change and fails to alter either the rights of a defendant or any substantive elements of the crime charged.

The general rule may not apply when a new statute abolishes an existing cause of action. In re Certified Questions, 416 Mich. 558; 331 N.W.2d 456 (1982).

Although one principle of Foster not on point here was later overruled, People v Grimmett, 388 Mich. 590; 202 N.W.2d 278 (1972), we have not retreated from the proposition that changes in criminal procedure may be retroactively applicable.

Ultimately, however, we rely not on the specific rules of statutory construction, which are merely aids to interpretation, but, rather, as Chief Justice RILEY observed in In re Forfeiture of $5,264, 432 Mich. 242, 248; 439 N.W.2d 246 (1989), we look to "the object of the statute, the harm which it is designed to remedy, and apply a reasonable construction which best accomplishes the statute's purpose." We are persuaded that the charge made here is not time-barred by what we perceive as the clear protective purpose and a reasonable construction of the language of this amendment.

Amendments of an existing statute may expand or restrict its regulation but must be read with consistency of purpose. 2A Sands, Sutherland Statutory Construction (5th ed), § 45.10, pp 46-48. 1987 PA 255 expressly amended the statute of limitations governing § 145c and §§ 520b to 520g of the Penal Code, 1931 PA 328. Thus, the amending act became part of the criminal sexual conduct statute. The amended statute of limitations, then, must be read consistently with the purpose of the criminal sexual conduct statute.

The legislative goal in enacting the criminal sexual conduct statute, MCL 750.520a et seq.; MSA 28.788(1) et seq., was to clarify definitions relating to criminal sexual conduct to delineate precisely the conduct proscribed and to remove major obstacles in the reporting and prosecution of sexual assaults. People v Johnson, 406 Mich. 320, 327, 330; 279 N.W.2d 534 (1979). Similarly, the obvious purpose for lengthening the statute of limitations in sexual crimes involving minors was to provide added protection to such victims. The Senate Bill Analysis observed that frequently the six-year limitation has run by the time the child speaks out, thereby making prosecution impossible. Thus, the legislative purpose in enacting both the original criminal sexual conduct statute and the extended limitations amendment for children was to facilitate the prosecution of such offenses.

Senate Bill Analysis, SB 430, November 4, 1987.

The apparent purpose of the amendment is to extend protection to a class of presently existing victims, a purpose confirmed by a comparison of the language in the general statute of limitations with that in the subsection extending the limitation period. The statute of limitations in MCL 767.24(1); MSA 28.964(1), expressly states that "[e]xcept as otherwise provided in subsection (2), all other indictments shall be found and filed within 6 years after the commission of the offense." Subsection (2) provides:

Notwithstanding subsection (1), if an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense . . . may be found and filed within 6 years after the commission of the offense or by the alleged victim's twenty-first birthday, whichever is later. [Emphasis added.]

Thus, while the general perspective of the statute of limitations looks forward from the time the offense is committed, the amendment looks backward, and requires inquiry whether the victim was under eighteen years at the time the offense "was" committed. The purpose as well as the words of the statute indicate that the amendment applies to victims who were under eighteen years at the time of the offense.

In sum, no reason has been advanced persuading us that the Legislature's purpose to remedy what it saw to be a serious problem was to be reserved to crimes not yet committed. As this Court long ago observed in another context, to give the amended statute of limitations solely prospective effect, would render "this section . . . useless and the effective date of the act would be postponed 30 years. We do not think that such a result was the intention of the legislature. . . ." Austin v Anderson, 279 Mich. 424, 428; 272 N.W. 730 (1937).

Judge Learned Hand, while on the United States Court of Appeals for the Second Circuit, aptly summarized in Falter v United States, 23 F.2d 420, 425-426 (CA 2, 1928), cert den 277 U.S. 590 (1928), our conclusion when he stated:

Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it.

We affirm the decision of the Court of Appeals.

In so ruling, we align ourself with the majority of state and federal jurisdictions which have confronted the applicability of extended criminal statute of limitation periods and have resolved the issue in favor of affecting cases not already time-barred without violation of the Ex Post Facto Clause. Falter v United States, n 18 supra; United States ex rel Massarella v Elrod, 682 F.2d 688 (CA 7, 1982), cert den 460 U.S. 1037 (1983); Clements v United States, 266 F.2d 397 (CA 9, 1959), cert den 359 U.S. 985 (1959); State v Creekpaum, 753 P.2d 1139 (Alas, 1988); People v Sample, 161 Cal.App.3d 1053; 208 Cal.Rptr. 318 (1984); Holland v Douglas Co Dist Ct, 831 F.2d 940 (CA 10, 1987), cert den 485 U.S. 977 (1988); Marks v State, 581 So.2d 1182 (Ala Crim App, 1990); Scharfschwerdt v Kanarek, 553 So.2d 218 (Fla App, 1989), lv den 563 So.2d 633 (1990); State v Nunn, 244 Kan. 207; 768 P.2d 268 (1989); Commonwealth v Bargeron, 402 Mass. 589; 524 N.E.2d 829 (1988); State v Casaretto, 818 S.W.2d 313 (Mo App, 1991); State v Nagle, 226 N.J. Super. 513; 545 A.2d 182 (1988); State v O'Neill, 118 Idaho 244; 796 P.2d 121 (1990); Commonwealth v Johnson, 520 Pa. 165; 553 A.2d 897 (1989); State v Petrucelli, 592 A.2d 365 (Vt, 1991); State v Hodgson, 108 Wn.2d 662; 740 P.2d 848 (1987), cert den 485 U.S. 938 (1988).

III

SEARCH AND SEIZURE

The warrant was supported by an affidavit stating that the victim reported that, while between the ages of five and ten years old, she had been sexually abused by the defendant at his home every other weekend over a four-year period, beginning in the fall of 1978 and ending in August, 1982; the victim described being photographed by the defendant "naked or in various stages of undress" and having been videotaped alone or with the defendant involved in sexual activity; and she reported being shown the photographs and videotapes numerous times by the defendant during her visits to his home, and that she was familiar with the different locations within the home where the defendant stored the material and his method of securing the piles of photographic material with "string or rubber bands."

The Court of Appeals upheld the trial court's finding that the search warrant was defective and that the evidence seized must be suppressed in essence because the passage of time negated an inference of probable cause. For the reasons that follow, we reverse the decision of the Court of Appeals.

The prosecution raises for the first time the good-faith exception to uphold an invalid search warrant which was enunciated in United States v Leon, 468 U.S. 897; 104 S Ct 3405; 82 L Ed 2d 677 (1984). The issue was not raised in the lower courts or in the prosecution's application for leave to appeal. Therefore, pursuant to MCR 7.302(F)(4)(a), the issue is not properly before this Court.

A

Attendant to the emergence of sexual exploitation of children as a crime of previously unknown proportion, inquiry regarding the life cycle of child pornography has been addressed by extensive investigation of the subject. In 1984, a study by a subcommittee of the United States Senate, evaluated thousands of documents, the results of numerous personal interviews, and testimony at public hearings and concluded that pornography plays a central role in child molestation. The documents examined were arrest reports, victim statements, pedophile correspondence, newsletters, child pornography catalogs, films, videotapes and magazines. More than two hundred people were interviewed, including convicted child molesters, pornographers, pro-pedophilia activists, molestation victims, investigators, judges, prosecutors, psychiatrists, and child protection workers. The subcommittee determined in relevant part that the collection and retention of such items is a recurring pattern for some persons whose sexual gratification is obtained through and with children.

The Department of State Police reported that in Michigan in 1990, there were 2,743 known victims of sexual contact or penetration between the ages of zero and nine, and 3,938 known victims of sexual contact or penetration between ten and nineteen years of age. Michigan Department of State Police Victimization Report — 1990. However, researchers indicate that the incidence of child sexual exploitation may be five to ten times greater than reported. Burgess, Child Pornography and Sex Rings (Lexington, Mass: DC Heath Co, 1984), p 1.

The Permanent Subcommittee on Investigations of the Committee on Governmental Affairs, United States Senate, reported that the extraordinary rise in child sexual abuse statistics reflect increased efforts to discover and investigate such crimes, rather than a sudden increase in the molestation of children. S Rep No 99-537, 99th Cong (2nd Sess), Child pornography and pedophilia, p 2 (hereinafter Report).

Report, n 22 supra at 4.

The term pedophile is defined as a preferential child molester whose major characteristics include "1) [a] long-term and persistent pattern of behavior, 2) children as preferred sexual objects, 3) well-developed techniques in obtaining victims, and 4) sexual fantasies focusing on children." Lanning, Child Molesters: A Behavioral Analysis (Quantico, Va: National Center for Missing Exploited Children, 1987), p 11.

Pornography functions for this offender as a method of justification that the behavior is not abnormal, serving not only as a means of contact with others of like interest but as reinforcement for the belief that, because so many others engage in the same activity, it must not be as wrong as society believes. These offenders are frequently victims of child sexual abuse themselves and combat negative feelings of their own victimization by regarding their sexual offenses as an expression of caring for children, rather than the using of their victims to meet personal unsatisfied needs.

Groth, Hobson Gary, The Child Molester: Clinical Observations, Social Work and Child Abuse (Haworth Press, Inc., 1982), pp 138-139.

The committee evaluated the phenomena of exhibiting child pornography that we have observed in record review of cases in our own jurisprudence, see, e.g., People v Engelman, 434 Mich. 204; 453 N.W.2d 656 (1990); People v Sundling, 153 Mich. App. 277; 395 N.W.2d 308 (1986), lv den 428 Mich. 887 (1987); People v Osborn, 122 Mich. App. 63; 329 N.W.2d 533 (1982), concluding that pornography is used in connection with child molestation, for arousal and fantasy and as a means of lowering the intended victim's inhibitions through peer pressure effects. The committee's findings suggest that a reluctant child can sometimes be convinced to engage in sexual activity by viewing other children having "fun" in the activity, and that for offenders whose sexual preference is children, photographs guarantee that there will always be an image of the child at the age of sexual preference because the photograph preserves the child's youth forever. The retention of the photographs may also serve to ensure that the child keeps the secret, thereby permitting the offender to continue molesting children, and as a medium of exchange with other pedophiles in order to gain access to other child victims. Finally, on a smaller scale, child pornography is used for sale and profit.

Report, n 22 supra at 10. See also Osborne v Ohio, 495 U.S. 103, 111, n 7; 110 S Ct 1691; 109 L Ed 2d 98 (1990) (citing 1 Attorney General's Commission on Pornography, Final Report [1986], p 649; Campagna Poffenberger, Sexual Trafficking in Children [1988], p 118; O'Brien, Child Pornography [1983], p 89), and Tyler Stone, Child pornography: Perpetuating the sexual victimization of children, 9 Child Abuse Neglect 313, 316-317 (1985).

Report, n 22 supra at 11.

Id.

The subcommittee's findings document the basis for the common-sense inference that the life cycle of child pornography may be extensive. The sub-committee concluded that the single most persuasive characteristic of pedophilia is the obsession for, and the collection of, child pornography. As one of the leading experts on child molestation testified:

Id. at 9.

"They (pedophiles) typically collect books, magazines, articles, newspapers, photographs, negatives, slides, movies, albums, drawings, audio tapes, videotapes, personal letters, diaries, sexual aids, souvenirs, toys, games, lists, paintings, ledgers, etc., all relating to children in either a sexual, scientific or social way. Not all pedophiles collect all these items. Their collections vary in size and scope. However, the maintenance and growth of their collections becomes one of the most important things in their life. . . . They may hide their collections, move them, or even give them to another pedophile, but they almost never destroy them." [Emphasis added.]

Id. at 9-10, quoting Lanning's testimony in front of the Subcommittee on Juvenile Justice, United States Senate. See also Campagna Poffenberger, n 26 supra at 30-31.

B

We review the magistrate's decision under the standard adopted in People v Landt, 439 Mich. 870 (1991). The Court of Appeals in Landt noted that there was a split of authority concerning the applicable standard of review for the issuance of a search warrant. 188 Mich. App. 234, 240; 469 N.W.2d 37 (1991). Some panels of the Court of Appeals followed the "abuse of discretion" standard, according deference to the magistrate's decision. Other panels followed the "substantial basis" standard articulated in People v Gleason, 122 Mich. App. 482, 489; 333 N.W.2d 85 (1983), which, while recognizing that "a magistrate's finding that an affidavit establishes probable cause is entitled to deference in marginal cases," essentially embraced de novo review of a magistrate's decision.

See People v White, 167 Mich. App. 461; 423 N.W.2d 225 (1988); People v Goins, 164 Mich. App. 559; 417 N.W.2d 499 (1987); People v Queenan, 158 Mich. App. 38; 404 N.W.2d 693 (1987), cert den 484 U.S. 1076 (1988); People v Sundling, supra; People v Reed, 121 Mich. App. 286; 329 N.W.2d 23 (1982); People v Dinsmore, 103 Mich. App. 660; 303 N.W.2d 857 (1981); People v Heiler, 97 Mich. App. 636; 296 N.W.2d 10 (1980); People v Atkins, 96 Mich. App. 672; 293 N.W.2d 671 (1980); People v Price (On Remand), 91 Mich. App. 328; 283 N.W.2d 736 (1979); People v Thomas, 86 Mich. App. 752; 273 N.W.2d 548 (1978).

See People v Jackson (On Remand), 180 Mich. App. 339; 446 N.W.2d 891 (1989); People v Kort (On Remand), 162 Mich. App. 680; 413 N.W.2d 83 (1987); People v Williams, 139 Mich. App. 104; 360 N.W.2d 585 (1984); People v Gentry, 138 Mich. App. 225; 360 N.W.2d 863 (1984); In re Search Warrant on 5000 Northwind Dr, 128 Mich. App. 564; 341 N.W.2d 141 (1983).

Using the standard of review set forth in Gleason, the Court of Appeals held in Landt that the facts in the affidavit were sufficient to establish probable cause to search for the delivered contraband, but were not sufficient to establish probable cause to search for other evidence of drug trafficking. This Court unanimously reversed, adopting the standard of review set forth in Illinois v Gates, 462 U.S. 213; 103 S Ct 2317; 76 L Ed 2d 527 (1983). We stated:

Landt, 188 Mich. App. 241. The affidavit stated that the affiant police officer had experience and specialized training in the recognition of controlled substances and the paraphernalia associated with the controlled substances, as well as such transactions. On the basis of his experience and training as a narcotics enforcement team investigator, the affiant believed that additional evidence of drug trafficking would be found in the home along with the delivered contraband.

Landt, 439 Mich. 870.

Search warrants and the underlying affidavits are to be read in a common-sense and realistic manner. . . . Inasmuch as the affidavit underlying the search warrant in this case established probable cause as to the contraband that was delivered to the defendant at the address where the search warrant was executed, the magistrate did not err in finding probable cause as to other items incident to drug trafficking.

Thus, appellate scrutiny of a magistrate's decision involves neither de novo review nor application of an abuse of discretion standard. Rather, the preference for warrants set forth in Gates, supra, United States v Ventresca, 380 U.S. 102; 85 S Ct 741; 13 L Ed 2d 684 (1965), and Brinegar v United States, 338 U.S. 160; 69 S Ct 1302; 93 L Ed 1879 (1949), requires the reviewing court to ask only whether a reasonably cautious person could have concluded that there was a "substantial basis" for the finding of probable cause. In Gates at 236-237, the Court held:

[W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." "A grudging or negative attitude by reviewing courts toward warrants," is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner."

. . .

[T]he traditional standard for review of an issuing magistrate's probable-cause determination has been that so long as the magistrate had a "substantial basis for . . . conclud[ing]" that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. We think reaffirmation of this standard better serves the purpose of encouraging recourse to the warrant procedure and is more consistent with our traditional deference to the probable-cause determinations of magistrates than is the "two-pronged test." [Citations omitted.]

In sum, a search warrant and the underlying affidavit are to be read in a common-sense and realistic manner. Affording deference to the magistrate's decision simply requires that reviewing courts ensure that there is a substantial basis for the magistrate's conclusion that there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Gates at 238.

C

We turn then to the crux of the inquiry in this case, the difficult question of the degree of certainty that "probable cause" requires. Specifically, we must determine whether a reasonable magistrate could have found a substantial basis to infer that the evidence sought was still in the defendant's home six and one-half years after it was last seen. The answer to the question turns on whether "it [is] necessary that the particular matter under consideration (i.e., that a crime has been committed, that a particular person has committed it, that evidence of crime is to be found in a particular place, or that a particular object is evidence of crime) be more probable than not, or [that] something short of this [will] suffice." 1 LaFave, Search and Seizure (2d ed), § 3.2(e), p 587.

The threshold inquiry looks at the life cycle of the evidence sought, given a totality of circumstances, that includes the criminal, the thing seized, the place to be searched, and, most significantly, the character of the criminal activities under investigation. 2 LaFave, Search and Seizure (2d ed), § 3.7(a), pp 75-87.

Probable cause to search is concerned with whether certain identifiable objects "are probably to be found at the present time in a certain identifiable place." 2 LaFave, supra, § 3.7, p 75. Once established, probable cause to arrest, which is concerned with historical facts, is likely to continue indefinitely, absent the discovery of contrary facts. By contrast, it cannot be assumed that evidence of a crime will remain indefinitely in a given place. Thus, "staleness" is not a separate doctrine in probable cause to search analysis. It is merely an aspect of the Fourth Amendment inquiry.

Time as a factor in the determination of probable cause to search is weighed and balanced in light of other variables in the equation, such as whether the crime is a single instance or an ongoing pattern of protracted violations, whether the inherent nature of a scheme suggests that it is probably continuing, and the nature of the property sought, that is, whether it is likely to be promptly disposed of or retained by the person committing the offense. People v Sundling, supra at 286. See also 2 LaFave, supra, § 3.7(a), pp 78-87. The matter must be determined by the circumstances of each case. People v Smyers, 47 Mich. App. 61, 73; 209 N.W.2d 281 (1973), aff'd 398 Mich. 635; 248 N.W.2d 156 (1976); Sgro v United States, 287 U.S. 206; 53 S Ct 138; 77 L Ed 260 (1932); 2 LaFave, § 3.7(a), p 77.

Accordingly, Professor LaFave quotes approvingly Andresen v Maryland:

The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed. [See 2 LaFave, supra, § 3.7(a), pp 77-78.]

Andresen v Maryland, 24 Md. App. 128, 172; 331 A.2d 78 (1975); 427 U.S. 463; 96 S Ct 2737; 49 L Ed 2d 627 (1976).

D

It is settled law that probable cause to search must exist at the time the search warrant is issued, Sgro v United States, supra at 210; People v Siemieniec, 368 Mich. 405, 407; 118 N.W.2d 430 (1962), and that probable cause exists when a person of reasonable caution would be justified in concluding that evidence of criminal conduct is in the stated place to be searched. People v Sundling, supra at 286; MCL 780.652; MSA 28.1259(2).

However, despite longstanding scholarly debate regarding the need for bright-line rules in Fourth Amendment analysis and an occasional endorsement of that approach, the United States Supreme Court has not adopted a unitary definition of probable cause as more probable than not. In Illinois v Gates, supra at 235, the Court rejected a definition of probable cause as more probable than not, stating that probable cause requires "`only the probability, and not a prima facie showing, of criminal activity. . . .'" More recently, the Court has reiterated that the degree of probability required for issuance of a search warrant is not subject to a numerical quantification and that "`[f]inely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision,'" New York v PJ Video, Inc, 475 U.S. 868, 876; 106 S Ct 1610; 89 L Ed 2d 871 (1986).

See, for example, Alschuler, Bright line fever and the Fourth Amendment, 45 U Pitt L R 227 (1984).

Dunaway v New York, 442 U.S. 200; 99 S Ct 2248; 60 L Ed 2d 824 (1979); Michigan v Summers, 452 U.S. 692; 101 S Ct 2587; 69 L Ed 2d 340 (1981); New York v Belton, 453 U.S. 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981).

To further focus the inquiry regarding the probability of "probable cause" that the evidence sought was still in the defendant's possession, we reiterate the core factual representations of the affidavit: (1) on April 25, 1989, the affiant interviewed the girl, and she reported that she was sexually abused by the defendant at his home every other weekend over a four-year period, beginning in the fall of 1978 and ending in August, 1982, while she was between the ages of five and ten years old; (2) the girl described having been photographed by the defendant "naked or in various stages of undress" and having been videotaped alone or with the suspect involved in sexual activity; and (3) she reported being shown the photographs and videotapes "numerous times" by the defendant during her visits to his home and that she was familiar with the different locations within the home where the defendant stored the material, and the fact that the photographs were "bound in piles held together by string or rubber bands."

The defendant challenged the first statement in the affidavit concerning the county protective services worker's statement that the victim had been sexually assaulted within the past two and one-half years. The prosecutor stipulated that no sexual assaults had in fact occurred during this period of time. The defendant claimed that the statement was submitted without regard to truth and that suppression was the appropriate remedy for false statements which mislead a magistrate in his determination of probable cause to issue a search warrant.
The defendant failed to preserve the falsity claim because he failed to request a Franks hearing. See Franks v Delaware, 438 U.S. 154, 155-156; 98 S Ct 2674; 57 L Ed 2d 667 (1978); People v Reid, 420 Mich. 326; 362 N.W.2d 655 (1984). However, in light of the prosecutor's concession, we examine only the remaining facts in the affidavit to determine whether there was basis for the magistrate to conclude that probable cause existed.

Illinois v Gates, supra at 238, holds that a judge is to examine the totality of circumstances to determine whether a "fair probability" exists that evidence of crime will be found. The issue in Gates was whether the affidavit sufficiently demonstrated "probable cause" that the defendants were involved in criminal activity. In rejecting the preponderance standard for probability, the Court relied on the arrest provisions of the Model Code of Pre-Arraignment Procedure which permits arrest "`without requiring that at the time of the arrest the guilt of the person to be arrested be more probable than not.'" 1 LaFave, supra, § 3.2(e), pp 590-591. The United States Supreme Court has not directly spoken to the standard of probability regarding presence of the evidence. However, Professor LaFave suggests that because the probable cause test is a compromise accommodating the "`often opposing interests' of privacy and law enforcement," variable views of how probable is probable, are appropriate depending on the nature of the crime, the interest intruded, the focus on the individual, the alternative investigative techniques available, and whether the place to be searched is that of a third person or that of the suspect. 1 LaFave, supra, § 3.2(e), p 596.

While LaFave would not always employ a more probable than not standard when the uncertainty involves the identity of the person who committed a known crime, he would require a more demanding standard of more probable than not where the question is whether a crime has been committed. However, when the issue is a probability determination with respect to certain specific items being in a particular place, LaFave does not disagree with the Gates majority that probable cause does not require a more probable than not definition of probable cause. LaFave observes that it is a fair statement of the law that the "more probable than not" standard has not been actually applied and that

[t]o the extent such rulings permit searches to be made upon something less than a 50% probability as to any one particular place, they do not appear objectionable. The fact remains that it is unlikely that the privacy of an innocent person will be disturbed under such circumstances. [1 LaFave, supra, § 3.2(e), pp 598-599.]

Other jurisdictions have recognized that the underlying facts of a child sexual assault, when viewed in light of the propensity to save the pornographic pictures of the victim, may establish probable cause. In People v Hernandez, 225 Cal.Rptr. 230 (withdrawn by order of the court, 1986), the California Supreme Court affirmed a lower court's ruling that the defendant's admission of criminal sexual conduct was valid. The confession resulted from the seizure of a collection of sexually explicit photographs pursuant to a warrant based on information three years old. The lower court refused to reach the staleness of probable cause issue, finding that the defendant had failed to sustain his burden of proof by relying only on the passage of time. Additionally, in State v Woodcock, 407 N.W.2d 603 (Iowa, 1987), the Iowa Supreme Court upheld the validity of a search of a pedophile's residence to confiscate homemade child pornography on the basis of information that was one and a half years old. And in State v Young, 37 Ohio St.3d 249, 257; 525 N.E.2d 1363 (1988), rev'd on other grounds, sub nom Osborne v Ohio, 495 U.S. 103; 110 S Ct 1691; 109 L Ed 2d 98 (1990), the Ohio Supreme Court, while not specifying the entire time lapse involved, upheld the seizure of photographs of nude boys pursuant to a warrant based in part on an affidavit reciting that "psychological profiles of pedophiles reveal that they do not destroy their child pornography, but rather relive their sexual experiences through photographs of previous partners."

Hernandez, supra, 225 Cal.Rptr. 234. The victim and the investigating police officer later testified at the Senate Subcommittee Hearings, n 22 supra, regarding this pedophile's method of producing and using pornography to molest children.

See also State v Kasold, 110 Ariz. 563; 521 P.2d 995 (1974), where the information supporting the warrant was five months old. The decision of the Arizona Supreme Court in Kasold was reversed by the United States District Court for the District of Arizona in Kasold v Cardwell, 393 F. Supp. 197 (D Ariz, 1975). The federal court based its decision on the fact that the defendant had moved his place of residence after the witness had observed the collection of pornography and before the warrant was issued. Professor LaFave questioned the federal court's conclusion as failing to give sufficient weight to the nature of the evidence seized. 2 LaFave, supra, § 3.7(a), p 87, n 48.

Moreover, the Model Code of Pre-Arraignment Procedure relied on in Gates, also specifically rejects the more probable than not standard for searches. Gates, supra at 235. Other than the authority cited, we have not been directed to, nor have we located, cases or commentary which provide clear guidance regarding the standard for "probability" that evidence of this type is still present years after it was initially created. Nevertheless, Professor LaFave's analysis is instructive and supports our conclusion that the magistrate had a substantial basis for issuance of the warrant.

The provision remained the same in the 1975 Proposed Official Draft. See Model Code of Pre-Arraignment Procedure, § 210.1(7) at 121 (Proposed Official Draft, Complete Text and Commentary 1975). The commentary to this section explicitly rejects a more probable than not standard. Id. at 499-500.

First, it is not and could not be disputed that the affidavit contained allegations setting forth more than a possibility that criminal activity had been engaged in by a particular individual. This case, therefore, does not involve the "slippery slope" of applying probability analysis to multiple arrests where the police suspect that ten persons are guilty of a crime but have no way of distinguishing between them. Nor is this a situation in which there is uncertainty about whether a crime has occurred in which more than a fifty percent probability might be required "because of the risk that the privacy of innocent persons will be intruded upon." 1 LaFave, supra, § 3.2(e), p 604.

We cannot agree with the dissent that the victim of these sexual assaults is subject to the same scrutiny of veracity, reliability, and basis of knowledge as an informant. Post, p 618, n 3. Neither the United States Supreme Court nor this Court has ever held that there is a constitutional requirement that a police officer verify specific allegations of criminal acts alleged by a named citizen outside the informant milieu. See, generally, 1 LaFave, supra, § 3.4, pp 712-749.

Grano, Probable cause and common sense: A reply to the critics of Illinois v Gates, 17 U Mich J L Ref 465, 498 (1984).

Second, it is not apparent that there were alternative investigative techniques available to update the probability that the evidence was presently in the defendant's possession. Thus, it cannot be concluded that "the magistrate acted outside the zone of reasonableness in concluding that further investigation was not warranted." Additionally, while the interest invaded was most significant, the type of material and the use to which it was put, made it highly unlikely that it would be kept anywhere but in the home.

Grano, n 43 supra at 478, n 74.

Third, since possession of the tapes and photographs was not in itself criminal, but, rather, mere evidence of defendant's activity, the passage of time without complaint would tend to negate the anxiety that would counteract the demonstrated propensity to retain the material. In this instance, the passage of time might be inversely proportional to the likelihood that the defendant still had the material.

Fourth, unlike the possession of contraband or the situation in which the criminal activity incidentally and sometimes unwittingly creates evidence of crime, where the reasonable inference is that a person will get rid of incriminating evidence, the case at bar involves a situation in which the individual intentionally created evidence of his criminal activity and displayed it over the course of years. Moreover, the evidence was not simply created and used, it was stored with a degree of care indicative of its continuing value to the defendant.

Finally, it is possible to infer that the items might have ceased to have value for the defendant when his molestation of the victim ceased. But just as the possibility that there was an innocent explanation for the behavior of the defendants in Gates did not negate the majority's finding that there was a fair probability that they were engaged in criminal activity, we think that the magistrate here could conclude that there was a "fair probability" of the presence of evidence which had sexual, historical, and perhaps even sentimental, significance for its possessor and creator. Although the particular stimulus may not be within our common experience, the allure of sexual fantasy made real is as familiar as daytime talk shows, soap operas, and rented movies.

Justice Stevens' dissent focused on possible innocent explanations in rejecting a finding of probable cause. Gates, supra at 291-292 (Stevens and Brennan, JJ., dissenting).

In balancing the interests involved, we conclude that the search was not constitutionally unreasonable. We have found no authority directly on point. However, we are left with the firm conviction that in the facts of this case there were only two possible courses of action, to secure a search warrant or to forgo the possibility of obtaining the evidence. While reasonable people could reasonably disagree with the assessment made by the magistrate, we have not found reason to conclude that in this situation the United States Constitution and common sense are at war. Mapp v Ohio, 367 U.S. 643, 657; 81 S Ct 1684; 6 L Ed 2d 1081 (1961).

This is not a situation in which the government claims that simply because a person has indicated interest in possessing pornographic material he is likely to be in present possession of it. United States v Weber, 915 F.2d 1282 (CA 9, 1990). Nor is this a situation in which the government seeks a search warrant on the basis of a single incident of photographing child victims. State v Woodcock, supra. Most importantly, this is not a situation in which the government claims the right to invade the sanctity of the home on the basis of a profile that suggests: once a collector of child pornography, always a possessor. Washington v Smith, 60 Wn. App. 592; 805 P.2d 256 (1991), lv den 116 Wn.2d 1031 (1991).

We hold only that where suspicion of criminal activity has focused on a specific individual by a standard more probable than not, and it is alleged that the evidence sought was created, retained, and employed in ongoing criminal activity over a four-year period, the magistrate could reasonably conclude that there was a "fair probability" that the evidence would be retained in the residence of the accused.

Affording deference to the magistrate's conclusion, we conclude that there was a substantial basis to infer a fair probability that the items still were present. Accordingly, we reverse the decision of the Court of Appeals.

IV

CONCLUSION

In sum, the Legislature intended that the extended statute of limitations set forth in MCL 767.24(2); MSA 28.964(2) was to apply to formal charges filed after the effective date of the amendment. Because no charge had been filed against the defendant, nor had the previous statute of limitations expired before the limitation period was amended, the extended statute of limitations applies. We find that such an application is not a violation of Ex Post Facto Clauses of the United States and Michigan Constitutions.

Affording deference to the magistrate's determination, a reviewing court simply must ensure that the magistrate had a substantial basis for concluding that probable cause existed at the time the search warrant was issued. In this case, the affidavit recounted the facts uncovered during the investigation that provided the magistrate a substantial basis to make an independent judgment that probable cause currently existed and to believe there was a fair probability that the items sought would still be present in the defendant's home.

Therefore, we affirm the decision of the Court of Appeals regarding the statute of limitations issue and reverse its decision with respect to the search and seizure issue. We remand this case to the trial court for proceedings consistent with this opinion.

RILEY, GRIFFIN, and MALLETT, JJ., concurred with BOYLE, J.


I agree with the majority that the amended statute of limitations was intended by the Legislature to apply to offenses not barred when the amendment took effect. I also agree that the application of the amended statute of limitations does not violate the Ex Post Facto Clauses of the United States and Michigan Constitutions.

MCL 767.24(2); MSA 28.964(2).

US Const, art I, § 10, cl 1; Const 1963, art 1, § 10.

With regard to the validity of the search warrant, I agree with the majority that the proper standard of review of a magistrate's decision to issue a search warrant is set forth in Illinois v Gates, 462 U.S. 213; 103 S Ct 2317; 76 L Ed 2d 527 (1983). See also People v Landt, 439 Mich. 870 (1991). I also agree that when a warrant contains misrepresentations, the misrepresentations must be excluded and the warrant reviewed to determine whether there was probable cause independent of the excluded material. See Franks v Delaware, 438 U.S. 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978); People v Reid, 420 Mich. 326; 362 N.W.2d 655 (1984).

I cannot agree, however, with the majority's conclusion that the affidavit, comprised of information minimally almost seven years old and potentially over ten years old, was sufficient to establish probable cause to search the defendant's home.

The affidavit provided the magistrate with the following facts:

Your affiant is a detective with the Grand Rapids Police Dep't. assigned to the Juvenile Division of that department. On April 4, 1989, your affiant received information from Clinton County Protective Services regarding . . . possible sexual assault[s] between Sam Russo as the suspect and [the complainant], age 16, said sexual assaults occurring at various locations within the City of Grand Rapids, Kent County, Michigan, for the past 2 1/2 years.

On April 25, 1989, your affiant interviewed the complainant . . . in her office at the Grand Rapids Police Dep't. [The complainant] stated that she would visit the home of Sam Russo every other week-end. She stated further that during those week-end visits she would be sexually assaulted by Sam Russo, said sexual assaults involving co-mutual touching and acts of sexual penetration between herself and Sam Russo. [She] indicated that on various times either before, during or after said sexual assaults Sam Russo would photograph her naked or in various stages of undress. On several occasions video tapes were made of the victim alone or with the suspect involved in sexual activity or naked poses.

[ She] stated further that said sexual assaults began sometime in the Fall of 1978, when [ she] was five years of age, and ended in August of 1982 when [ she] was 10 years of age. [She] further indicated to your affiant that both the photographs and video tapes were displayed to her by the suspect numerous times during her week-end visits. Additionally [she] indicated that the photographs were stored in different locations, within the home and bound in piles held together by string or rubber bands. Said videos and pictures were observed by [her] at the 526 Livingston address. Suspect Sam Russo is not related by either blood or affinity to alleged victim. . . . [Emphasis added.]

On the basis of the allegations in the affidavit, the magistrate issued a search warrant authorizing the search of the defendant's home for pictures and videotapes of the victim.

A careful review of the affidavit reveals that some of its allegations are inconsistent. For example, it initially alleges that the sexual assaults occurred over the last 2 1/2 years and then specifically states that the assaults occurred when the victim was between the ages of five and ten, ending in 1982. The prosecutor admitted at oral argument before this Court that the reference in the affidavit that sexual assaults had occurred for the past 2 1/2 years was a mistake. Thus, the misrepresented allegations must be excluded and the affidavit reevaluated to determine whether probable cause existed.

After excluding the misrepresented facts, what remains is an affidavit that states that sexual assaults occurred between the fall of 1978 and August of 1982. Further, that sometime during this period, the victim was photographed and videotaped and that sometime later the victim observed the photographs and videotapes with the defendant. Finally, that the defendant stored the photographs in different locations in his home, bound by string and rubber bands. I consider to be of particular importance what is not in the affidavit. Nowhere in the modified affidavit are there any allegations that the defendant's conduct continued after August of 1982. Nowhere in the modified affidavit is there any evidence to suggest that any police officer attempted to substantiate any of the claims of the victim, not even to the minimal extent of determining whether the defendant had the opportunity to commit the alleged offenses. Finally, and of most significance, nowhere in the modified affidavit is there any indication that the items to be searched for would be in the defendant's possession at the time the warrant was executed.

The Court in Gates rejected the strict application of the Aguilar-Spinelli test, but it did state that veracity, reliability, and basis of knowledge were "closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is `probable cause' to believe that contraband or evidence is located in a particular place." Gates, 230. In this case the victim's basis of knowledge is evident, but her veracity and reliability are unknown. See Aguilar v Texas, 378 U.S. 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), and Spinelli v United States, 393 U.S. 410; 89 S Ct 584; 21 L Ed 2d 637 (1969).

See Sgro v United States, 287 U.S. 206; 53 S Ct 138; 77 L Ed 260 (1932).

Because I believe the modified affidavit did not provide probable cause to search the defendant's home, specifically because the allegations were stale, I would quash the warrant. I recognize, however, that many lower federal courts have found probable cause despite substantial gaps between the observation of the evidence and the issuance of the warrant. See, e.g., United States v Greany, 929 F.2d 523 (CA 9, 1991) (two years); United States v Rowell, 903 F.2d 899, 903 (CA 2, 1990) (1 1/2 years); United States v Freeman, 685 F.2d 942 (CA 5, 1982) (seven months); United States v Minis, 666 F.2d 134 (CA 5, 1981) (three months); United States v Johnson, 461 F.2d 285 (CA 10, 1972) (three weeks); United States v LaMorte, 744 F. Supp. 573, 575-576 (SD NY, 1990) (3 1/2 years). Examining these cases, I reiterate the majority's finding that there has been no case that has upheld a probable cause determination based solely on allegations more than six years old.

Ante, p 613. Interestingly, the majority attempts to make the relevant appear irrelevant by stating on one hand that "[t]ime [is] a factor in the determination of probable cause to search," and, on the other hand, that "[i]n this instance, the passage of time might be inversely proportional to the likelihood that the defendant still had the material." Id., pp 605, 612.

Two reasons that usually justify such a search are that the evidence sought is of an ongoing criminal business, Greany, or the evidence is of a type that is not ordinarily moved from one place to another, Freeman. Neither of these situations is present in this case. Unlike Greany which involved marijuana cultivation ("an ongoing criminal business of a necessarily long-term nature . . . rather than . . . a completed act," Greany, p 525), the victim in this case admitted that the assaults ended in 1982. The affidavit does not allege, and it cannot be assumed, that the defendant continued to engage in this type of activity with other victims. As expressly stated in the warrant, the search was not for evidence of an ongoing criminal activity but evidence of prior criminal acts with the victim.

In Aguilar v Texas, n 3 supra, p 109, n 1, the Court stated: "It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate's attention." (Emphasis in original.)

The search warrant stated:

THEREFORE, IN THE NAME OF THE PEOPLE OF THE STATE OF MICHIGAN, I command that you search the following described place . . . and . . . seize, secure, tabulate and make return according to law the following property and things: Picture, Polaroid snap-shots and video tapes of [ the victim], dob 6-30-73, either naked or partially clad, and/or involved in any sexual acts or touchings by other persons or to other persons, cameras, which may have been used to take such picture[s], and undeveloped film which may contain such pictures. [Emphasis added.]

In addition, unlike the Freeman case that involved a search for bank records, generally kept in one locale, the objects of the search in this case were sexually explicit pictures and videos of the victim. A review of the profile offered by the majority suggests to me that this type of evidence is often moved from one place to another. Resorting to the pedophile profile, the majority emphasizes the fact that a pedophile almost never destroys the incriminating evidence. The question, of course, is not whether the objects of the search will be destroyed, but whether the objects of the search will be at the place to be searched at the time the search warrant is executed. According to the profile, a tendency of a pedophile with regard to child pornography is to sell, hide, move, or give the collection to another pedophile. Thus, because this is the type of evidence that is passed around, it is not the type of evidence that would likely remain at the same location seven years later.

Ante, p 601.

Id.

For the reasons stated above, I find no basis for this Court to transmogrify evidence, which the majority itself characterizes as historical and sentimental, into a present basis for probable cause. Therefore, I would affirm the judgment of the Court of Appeals.

Ante, p 613.

BRICKLEY, J., concurred with CAVANAGH, C.J.


I would hold as a matter of statutory construction, and thus have no need to reach the constitutional issue, that 1987 PA 255, amending the statute of limitations for prosecutions of criminal sexual conduct where the victim is under the age of eighteen, is prospective, and thus extends the time for the commencement of prosecution only where the offense is committed after the effective date of the amendment. See Harrison v Metz, 17 Mich. 377, 382 (1868), where this Court, speaking through Justice COOLEY, said that it had no doubt the Legislature intended that legislation shortening the statute of limitations affects "only the causes of action which should accrue subsequent to its taking effect as law. There is nothing in the act itself from which we can gather any different intent, and it is a sound rule of construction that legislation is to have a prospective operation only, except where the contrary intent is expressly declared or is necessarily to be [inferred] from the terms employed." (Emphasis added.)

Similarly, see McKisson v Davenport, 83 Mich. 211, 215; 47 N.W. 100 (1890); Angell v West Bay City, 117 Mich. 685, 688; 76 N.W. 128 (1898); cf. Hathaway v Washington Milling Co, 139 Mich. 708, 711; 103 N.W. 164 (1905); In re Davis Estate, 330 Mich. 647, 653; 48 N.W.2d 151 (1951); Tarnow v Railway Express Agency, 331 Mich. 558, 565; 50 N.W.2d 318 (1951). See also Ferris v Beecher, 85 Mich. App. 208, 214; 270 N.W.2d 658 (1978); Pryber v Marriott Corp, 98 Mich. App. 50, 55; 296 N.W.2d 597 (1980).

A legislative intent to make Act 255 retrospective is neither expressly declared nor necessarily to be inferred from the terms employed. Nor has there been adduced any other evidence of legislative intent.

The pertinent amendatory language reads as follows:

Notwithstanding subsection (1), if an alleged victim was under 18 years of age at the time of the commission of the offense, an indictment for an offense under section 145c or 520b to 520g of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.145c and 750.520b to 750.520g of the Michigan Compiled Laws, may be found and filed within 6 years after the commission of the offense or by the alleged victim's twenty-first birthday, whichever is later.

The clause, "if an alleged victim was under 18 years of age at the time of the commission of the offense," (see ante, p 597) is stylistically preferable to alternatives such as "if an alleged victim shall have been under 18 years of age at the time of the commission of the offense," and imparts nothing regarding the prospectivity/retroactivity question. See Selk v Detroit Plastic Products, 419 Mich. 1, 25-26; 345 N.W.2d 184 (1984) (LEVIN, J., dissenting), On Resubmission, 419 Mich. 32, 39-40; 348 N.W.2d 652 (1984) (LEVIN, J., dissenting).


Summaries of

People v. Russo

Supreme Court of Michigan
Jun 2, 1992
439 Mich. 584 (Mich. 1992)

holding that a six-and-one-half-year-old allegation of child pornography possession was not stale because it was supported by credible testimony alleging that the defendant committed sexual assault against a child

Summary of this case from Kinder v. State

finding there was probable cause for search warrant for child pornography six and a half years after child pornography was last seen at the defendant's home

Summary of this case from Commonwealth v. Conyngham

recognizing that charges not yet time-barred by an existing period of limitations are subject to a new period of limitations set forth in an amended statute

Summary of this case from People v. Kasben

recognizing that charges not yet time-barred by an existing period of limitations are subject to a new period of limitations set forth in an amended statute

Summary of this case from People v. Kasben

In Russo, the defendant committed multiple counts of CSC at a time when the statute of limitations for such acts was six years.

Summary of this case from People v. Harden

noting there is a "reasonable inference . . . that a person will get rid of incriminating evidence" when the offense involves "the possession of contraband"

Summary of this case from People v. Brown

noting that it was well-settled that " ‘ any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.’ "

Summary of this case from People v. Perkins

In Russo, supra, the Supreme Court addressed the question whether an amended statute of limitations could be applied retroactively.

Summary of this case from In re Fultz
Case details for

People v. Russo

Case Details

Full title:PEOPLE v RUSSO

Court:Supreme Court of Michigan

Date published: Jun 2, 1992

Citations

439 Mich. 584 (Mich. 1992)
487 N.W.2d 698

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