People v. Hyman

J. H. Gillis, J.

Defendant was charged with possession of more than 225, but less than 650, grams of cocaine with intent to deliver. MCL 333.7401(1), (2)(a)(ii); MSA 14.15(7401X1), (2)(a)(ii). A motion to suppress the evidence was filed and an evidentiary hearing conducted thereon. During the course of that hearing, it was discovered that the affidavit offered to support the issuance of the search warrant had not been signed. As a result of this defect, the trial court granted the motion to suppress, relying upon People v Goff, 401 Mich 412; 258 NW2d 57 (1977). The prosecutor appeals from this ruling.

As noted by the prosecution, the issue presented here is identical to that considered by this Court in People v Verneida Mitchell, 142 Mich App 518; 370 NW2d 392 (1985), lv gtd 425 Mich 871 (1986). Mitchell contained the following observations of *506the Supreme Court case relied upon by the trial court in granting the motion to suppress:

In Goff, the Court articulated a technical, procedural requirement that the affidavit supporting a search warrant had to be signed by the affiant. But Goff was decided in 1977. We are inclined to believe that the purpose of the rule was primarily to impress upon police departments the necessity of careful, full compliance with the warrant requirements. In large part, that purpose has been served.
Now, in 1985, it is clear that, in balancing competing interests, the United States Supreme Court in Leon [United States v Leon, 468 US 897; 104 S Ct 3405; 82 L Ed 2d 677 (1984)], believes that bringing all admissible evidence before a jury or judge is paramount to "educating” police by throwing out evidence on what seems a hypertechnical basis. We do not believe the extremely prophylactic rule articulated by the Supreme Court in Goff was intended to be etched in stone for perpetuity.
On the contrary, we believe the time has come for reconsideration and abandonment of a rule whose purpose has been served. To that end, we decline to hold invalid a warrant the affidavit for which was unsigned. Rather, we remand this case to the trial court for an evidentiary hearing to determine whether, in fact, there was an adequate basis for issuance of the search warrant. If there was, consistent with this opinion, the affidavit supporting the search warrant may be signed and sworn to nunc pro tunc, and all orders suppressing evidence on the basis that the affidavit was unsigned shall be reversed. [142 Mich App 521-522.]

We agree with the observations of the Mitchell Court and believe the same approach should be taken here. Therefore, we remand this case to the trial court for purposes of conducting a hearing to determine whether an adequate basis existed for the issuance of the warrant, and, if so, the affidavit *507may be signed, as in Mitchell, and the suppression order reversed.

Reversed and remanded for proceedings not inconsistent with this opinion.

M. J. Kelly, P.J., concurred.