If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 18, 2021
Plaintiff-Appellant,
v No. 345243
Wayne Circuit Court
DEANDRE TAIWAN HAYWOOD, LC No. 18-003452-01-FH
Defendant-Appellee.
ON REMAND
Before: O’BRIEN, P.J., and BECKERING and LETICA, JJ.
PER CURIAM.
This criminal proceeding is before us on remand for a determination of the merits of the
prosecution’s claim on appeal. We vacated our earlier determination of the matter because
defendant, Deandre Haywood, was unrepresented on appeal and deprived of his right to appointed
appellate counsel. With defendant now having the benefit of appellate representation, we review
whether the trial court erred in finding a search warrant defective on its face and dismissing all
charges against defendant. Because we conclude that the scrivener’s error at issue did not render
the warrant defective on its face, we reverse and remand for further proceedings.
I. APPELLATE PROCEDURAL HISTORY
By way of brief procedural history, in March 2018, a warrant was issued to search a home
on Wayburn Street in Detroit. As a result of the search, police arrested defendant, and the
prosecution charged him with possession with intent to deliver less than five kilograms of
marijuana, in violation of MCL 333.7401(2)(d)(iii). Defendant’s retained counsel moved to
suppress the evidence obtained in the search. After a hearing, the trial court found the search
warrant “defective on its face,” suppressed the evidence, and dismissed all charges.
The prosecution filed a claim of appeal. This Court notified defendant’s retained trial
counsel of the appeal, but counsel advised the Court that he did not intend to represent defendant
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in the appeal. This Court then sent a letter to defendant at his last known address,1 notifying him
of the appeal, informing him that his retained counsel did not intend to represent him, and
instructing him regarding how to obtain appointed counsel to represent him in this appeal, should
he qualify and wish to do so. Notices of all proceedings in this Court were sent to defendant, but
he did not seek to obtain appointed counsel, nor did he file anything with this Court. The matter
was assigned to a panel and oral argument was held. At oral argument, the prosecutor rested on
her brief, but made herself available for questions, of which there were none. Subsequently, this
Court issued an unpublished opinion reversing the trial court’s ruling and remanding for further
proceedings.2
The Michigan Appellate Assigned Counsel System (MAACS), through its administrator
and deputy administrator, moved for reconsideration on defendant’s behalf. MAACS had not yet
located or conferred with defendant, but, noting that he was unrepresented on appeal, requested
that we vacate our opinion and remand to the trial court for the appointment of appellate counsel,
assuming defendant could demonstrate his indigency. We denied the motion for reconsideration.3
Defendant, through MAACS, filed a timely application for leave to appeal to the Michigan
Supreme Court, seeking reversal of our prior decision, appointment of appellate counsel for
defendant, and remand for a new appeal. Having contacted defendant, MAACS attached to its
application a statement from him indicating that he did not receive any paperwork from this Court
regarding the prosecution’s appeal, did not know he had a right to the appointment of appellate
counsel, and could not afford counsel for an appeal. The Supreme Court vacated this Court’s
November 8, 2019 order denying defendant’s motion for reconsideration, and remanded for
plenary consideration of defendant’s arguments, “including the contention that in other cases, the
Court of Appeals has remanded to the trial court for a determination whether to appoint appellate
counsel for the defendant-appellee.”4
After plenary consideration of the arguments advanced by the parties on reconsideration,
this Court concluded that our failure to remand this matter to the trial court for a determination of
whether to appoint appellate counsel “deprived defendant of his right to counsel in a preconviction
appeal. See e.g., People v Murphy, 481 Mich 919 (2008).”5 As a remedy, we vacated our prior
opinion, reinstated the prosecutor’s first-tier appeal, remanded the case to the trial court for the
appointment of appellate counsel for defendant, and provided a briefing schedule. Defendant now
1
The letter was sent to the same address where the search that is at issue in this case occurred.
2
People v Haywood, unpublished per curiam opinion of the Court of Appeals, issued September
26, 2019 (Docket No. 345243).
3
People v Haywood, order of the Court of Appeals, issued November 8, 2019 (Docket
No. 345243).
4
People v Haywood, order of the Supreme Court, issued May 20, 2020 (Docket No. 160753).
5
People v Haywood, order of the Court of Appeals, issued October 5, 2020 (Docket No. 345243).
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having the benefit of appellate counsel who has ably briefed the issues, we analyze anew the
prosecution’s claim on appeal.6
II. PERTINENT FACTS AND TRIAL COURT PROCEEDINGS
On March 15, 2018, and March 16, 2018, Detroit Police Officers Michael Bailey and
Youssef Manna conducted surveillance at defendant’s residence, where they observed multiple
suspected narcotic transactions. Officer Bailey obtained information from the license plate of a
vehicle parked in front of the residence and learned that the vehicle’s registered owner was Derrick
Haywood. The officers obtained a photograph of Derrick and concluded that he resembled the
person Officer Bailey observed participating in the suspected narcotic transactions.
On March 17, 2018, Officer Bailey drafted an affidavit and search warrant for the
residence. The search warrant named Derrick as the seller to be searched, but also noted that
narcotics sellers often change, and a different seller might be present during execution of the
warrant. However, the date in the footer at the bottom of the search warrant and affidavit was
“January 17, 2017,” which was more than a year before the dates of the surveillance activity and
the date that the warrant was actually drafted and signed. Officer Bailey testified at the hearing on
defendant’s motion to quash that the January date was a typographical error. He explained, “I
have a formatted page that has a footer at the bottom and during each search warrant I will edit
that footer.” He further explained that he forgot to edit the date in the footer of the documents at
issue. After drafting the documents, Officer Bailey faxed a copy of them to the magistrate, who
promptly signed and returned them to Officer Bailey. Stamped across the top of the returned copy
was March 17, 2018, the date that Bailey drafted, and the magistrate signed, the warrant. The
magistrate did not write the date next to her signature.
On March 17, 2018, the Detroit Police Department executed the search warrant at
defendant’s residence. Detroit Police Officer Ryan Jones recovered three large plastic bags and a
blue box containing marijuana from the back room of the house. Inside two of the bags and the
box were smaller plastic bags containing marijuana, which Officer Jones testified was consistent
with the intent to sell and deliver marijuana. In the same room, Officer Mana also recovered proof
that defendant resided in the home. Officers arrested defendant and took him into custody, and
the prosecution charged him as indicated.
On July 2, 2018, defendant filed a motion to quash the search warrant and suppress the
evidence seized pursuant to execution of the warrant. He argued that the affidavit and search
warrant were defective because of the incorrect date in the footer of each document. Defendant
further argued that, because the affidavit and search warrant identified Derrick Haywood as the
seller to be searched, and Derrick was in federal prison at the time, Officer Bailey provided
information in reckless disregard of the truth. After an evidentiary hearing, the trial court found
6
Although both parties requested oral argument, we have unanimously concluded that the briefs
and record adequately present the facts and legal arguments, and this Court’s deliberation would
not be significantly aided by oral argument. Thus, we have decided the matter without oral
argument. MCR 7.214(E).
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that the search warrant was defective on its face because of the incorrect date in the footer. The
court reasoned:
The affidavit supports activity in March of 2018, the search warrant is dated
January 17, 2017. And I was looking to see if maybe January 17, 2018, might have
been the activity that’s reported in the affidavit but that wasn’t the case either. It
didn’t happen, the activity didn’t happen until about three months later.
We don’t really know what happened but we do know that the search
warrant is defective and I’ll grant the defense’s motion.
Accordingly, the court issued the order now appealed from, granting defendant’s motion to quash
the search warrant and suppress the evidence, and dismissing the case.
III. ANALYSIS
The prosecution argues that the trial court erred by granting defendant’s motion to quash
the search warrant and suppress the evidence, and by dismissing the case. Defendant maintains
that the prosecution has failed to establish that the trial court clearly erred in finding that the
warrant’s several deficiencies render it invalid. Viewing the nature of the errors using a realistic
and commonsense approach and in light of the other information contained in the warrant, we
agree with the prosecution.
“This Court reviews a trial court’s findings at a suppression hearing for clear error[,]” and
its ultimate ruling on the motion to suppress de novo. People v Williams, 472 Mich 308, 313; 696
NW2d 636 (2005). “Clear error exists if the reviewing court is left with a definite and firm
conviction that the trial court made a mistake.” People v Armstrong, 490 Mich 281, 289; 806
NW2d 676 (2011). This Court also reviews de novo the application of the exclusionary rule to a
Fourth Amendment violation. People v Jenkins, 472 Mich 26, 31; 691 NW2d 759 (2005).
The Fourth Amendment of the United States Constitution provides, in relevant part, that
“no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.” People v
Slaughter, 489 Mich 302, 310-311; 803 NW2d 171 (2011), quoting US Const, Am IV. The
Michigan Constitution provides the same protection as the Fourth Amendment of the United States
Constitution. Id. at 310-311 (citation omitted). In reviewing a magistrate’s decision, this Court
must determine that the magistrate had a substantial basis for finding probable cause and must
evaluate the search warrant and underlying affidavit using a realistic and commonsense approach.
People v Darwich, 226 Mich App 635, 636-637; 575 NW2d 44 (1997). “Probable cause to issue
a search warrant exists where this is a substantial basis for inferring a fair probability that
contraband or evidence of a crime will be found in a particular place.” People v Kazmierczak, 461
Mich 411, 417-418; 605 NW2d 667 (2000).
The exclusionary rule generally bars the admission of evidence obtained by the execution
of an unconstitutional search. See People v Hawkins, 468 Mich 488, 498-499; 668 NW2d 602
(2003). The primary purpose of the exclusionary rule is to deter “ ‘official misconduct by
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removing incentives to engage in unreasonable searches and seizures.’ ” People v Hellstrom, 264
Mich App 187, 194; 690 NW2d 293 (2004), quoting People v Goldston, 470 Mich 523, 529; 682
NW2d 479 (2004). Michigan, however, recognizes a good-faith exception to the exclusionary
rule, which allows the admission of evidence obtained through a defective search warrant when
the executing officer relied upon the validity of the warrant in objective good faith. Goldston, 470
Mich at 525-526, 540-541. Relying on federal precedent, Michigan’s Supreme Court has
reasoned, “ ‘suppressing evidence obtained in objectively reasonable reliance on a subsequently
invalidated warrant’ ” produces “ ‘ marginal or nonexistent benefits’ ” and “ ‘cannot justify the
substantial costs of exclusion.’ ” Goldston, 470 Mich at 530, quoting United States v Leon, 468
US 897, 922; 104 S Ct 3405, 3420; 82 L Ed 2d 677 (1984). Nevertheless, the United States
Supreme Court has recognized that if a warrant is so facially deficient—“i.e., in failing to
particularize the place to be searched or the things to be seized”—that the executing officer could
not reasonably presume it to be valid, the good-faith exception does not apply. Id. at 923; 104 S
Ct at 3421.
The prosecution argues that the incorrect date on the search warrant and affidavit did not
render the search warrant invalid. We agree. The prosecution relies, in part, on People v Hampton,
237 Mich App 143; 603 NW2d 270 (1999), in which the defendant challenged the validity of a
search warrant on the basis of a typographical error that resulted in a different description of the
target premises than that provided by the affidavit. Hampton, 237 Mich App at 148-149. This
Court upheld the validity of the search warrant because the supporting affidavit correctly described
the target premises and the relevant information known by the executing officers eliminated the
possibility that the officers would mistakenly search another premises. Id. at 151-154.
Similarly, the Second Circuit Court of Appeals has held that dating errors in an officer’s
affidavit and in the search warrant did not invalidate the warrant. United States v Waker, 534 F3d
168, 171-172 (CA 2, 2008).7 In Waker, an affidavit correctly dated April 25, 2005, indicated that
the surveillance described in the affidavit took place on “April 26, 2005.” Id. at 170. In addition,
“the magistrate judge specified [in the search warrant] an execution deadline of April 30, 2004, a
date that had passed a year earlier.” Id. Based in part on the typographical errors in these
documents, the defendant moved to suppress the evidence seized on grounds that the search
warrant was invalid. Id. at 169. The federal district court denied the defendant’s motion, and the
federal appeals court affirmed, holding that “[t]he types of errors presented by the search warrant
and supporting affidavit in this case do not invalidate the warrant[,]” and that “ ‘affidavits for
search warrants . . . must be tested and interpreted by magistrates and courts in a commonsense
and realistic fashion.’ ” Id., quoting United States v Ventresca, 380 US 102, 108; 85 S Ct 741,
745; 13 L Ed2d 684 (1965). The Second Circuit affirmed its prior explanation that “when
information within a search warrant permits the establishment of intended—but imperfectly
scribed—dates, the document is not rendered deficient.” Id., citing Velardi v Walsh, 40 F3d 569,
576 (CA 2, 1994).
7
Although decisions of the federal courts of appeals are not binding, we may nevertheless find
them persuasive. Abela v General Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).
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Likewise, in United States v White, 356 F3d 865, 869 (CA 8, 2004), the Eighth Circuit
Court of Appeals affirmed the denial of a motion to suppress evidence obtained by a search warrant
that had an incorrect date that resulted from the affiant’s use of a preprinted application form.
According to the Appeals Court, “[t]he warrant described the premises and items to be seized with
particularity[,]” and the officer-affiant “testified that it was common practice for him to re-use
application forms when applying for a search warrant.” White, 356 F3d 869. The Eight Circuit
concluded that the inconsistency between the date on the warrant application form and the date on
the search warrant does not eliminate probable cause[,]” noted that the federal district court found
the officer-affiant’s testimony credible, and concluded that execution of the search warrant was
lawful. Id.
Applying these principles to the case at bar leaves us definitely and firmly convinced that
the trial court clearly erred in determining that the incorrect date in the footer of the search warrant
and supporting affidavit invalidated the search warrant. Williams, 472 Mich at 313. Using this
finding as the basis for its ultimate decision, the court then erred in granting defendant’s motion to
quash the warrant and to suppress the evidence obtained from execution of the warrant. Id. We
agree with the Second Circuit Court of Appeals that courts must “not test the validity of search
warrants and their supporting affidavits in a vacuum[,]” but should interpret such documents in a
commonsense manner. See Waker, 534 F3d at 171.
The search warrant and affidavit in the present case contained information from which one
could easily establish the correct date that the warrant was signed. See id. The affidavit stated
that Officer Bailey conducted surveillance at defendant’s residence on March 15, 2018, and March
16, 2018, and detailed the suspected narcotic transactions observed. The affidavit and the search
warrant bear time and date stamps indicating that Officer Bailey faxed the documents to the
magistrate judge for her signature on March 17, 2018 at approximately 11:49 a.m. The search
warrant bears an additional date stamp of March 17, 2018, again indicating when the magistrate
signed the warrant. This objective evidence eliminated the possibility that the magistrate judge
had signed the warrant more than a year before Officer Bailey conducted surveillance and received
the necessary approvals for the warrant, and supported the officer’s testimony that the incorrect
date was merely a typographical error. See id. Because typographical errors do not generally
invalidate search warrants and the correct date was ascertainable from the information within the
documents, the trial court erred by finding that the warrant was invalid.8 Id.
8
Defendant also contends that the police acted with reckless disregard for the truth by naming his
brother, Derrick, in the search warrant. This assertion is without merit. Given that a car registered
to Derrick was parked in front of the house under surveillance, and that Derrick and defendant bear
a similar resemblance, it was not unreasonable for the investigating officer to assume that the
person he saw was Derrick. Although the officer could have investigated further, nothing
suggested at the time that further investigation was warranted. Viewing these circumstances from
the perspective of the investigating officer rather than with the perfect clarity of hindsight, we
cannot say that the officer acted with reckless disregard for the truth by naming Derrick in the
search warrant.
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Because we conclude that the trial court erred by finding the search warrant invalid, we
need not address the prosecution’s good faith argument on appeal.
Reversed and remanded to the trial court for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Colleen A. O’Brien
/s/ Jane M. Beckering
/s/ Anica Letica
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