People v. Sherwood

Beasley, J.

On April 9, 1986, defendants, Sandra Lee Sherwood and William Clyde Sherwood, pled guilty to attempted possession with intent to deliver marijuana, in violation of MCL 750.92; MSA 28. 287, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c). Defendant Sandra Lee Sherwood was sentenced to eighteen months probation. Defendant William Clyde Sherwood was sentenced to twelve months probation, with the first nine months to be spent in the county jail. Defendants appeal as of right.

On appeal, defendants claim the trial court erred when it denied their motion to suppress evidence obtained in a search under a warrant. Defendants pled guilty conditioned upon preserving the issue for appeal.1 Defendants argue that the affidavit in support of the search warrant was insufficient to support probable cause due to infirmities under People v Sherbine.2 In Sherbine, the Supreme Court held that, under MCL 780.653; MSA 28.1259(3), an affidavit based on informant-supplied information must: (1) contain affirmative allegations that the informant spoke with personal knowledge; (2) set forth facts from which one may *105conclude that the informant is credible; and (3) show the information to be reliable.3

The affidavit of Larry Beld provided:

Your affiant is a police officer with the Ottawa County Sheriffs Department currently assigned to the West Michigan Enforcement Team (wemet) which is a narcotics unit under the direction of the Michigan State Police. In mid-September of 1985, the Governor’s Office contacted the Michigan State Police in Lansing concerning suspected marijuana trafficking at 12080 Verlin Drive, Spencer Township, Kent County, Michigan. This information was then passed to wemet.
After receipt of this information, on September 30, 1985, Lt. Wes Haney of the Michigan State Police attached to wemet recovered the garbage which had been abandoned in front of the premises at 12080 Verlin Drive. Inspection of the garbage and laboratory testing revealed marijuana residue in a grocery bag, a marijuana roach in a garbage bag and an empty Dow Zip-Lock Freezer Bag container for one gallon size, which is commonly used for sealing and packaging of marijuana for sale to others.
On October 14, 1985, Lt. Wes Haney again recovered abandoned garbage from in front of the above described premises. Inspection of the garbage revealed a piece of paper containing the following writing "Sandy, here’s that other four ounces I owed you on that pound.” On the other side of the paper it contains figures along with the name "Joe”. There was also an empty packet of Zip-Zag Gummed Cigarette Papers, commonly used in the smoking of marijuana. In addition, there was an envelope containing various figures including the word "rock.” "Rock” is a word commonly used to refer to cocaine.
On October 21, 1985, Lt. Wes Haney again recovered the garbage from in front of the above described premises. A search of this garbage re*106vealed two plastic straws cut into pieces, commonly called "tooters” and used in the use of cocaine. Michigan State Police chemist Allen Kamppainen determined the presence of cocaine on the "tooters.” There was also marijuana residue and seeds and four partial marijuana cigarettes.

Defendants argue that the affidavit does not supply probable cause because it does not provide any information that the magistrate could use to determine that the source in the Governor’s office was credible or spoke with personal knowledge. The tip from the Governor’s office, however, merely provided a starting point from which the police could begin an independent investigation. A magistrate may issue a warrant based on probable cause if the police have conducted an independent investigation to confirm the accuracy and reliability of the information regardless of the knowledge and reliability of the source.4 The affidavit’s final three paragraphs contain no hearsay information from the Governor’s office.

The Governor’s office, however, is not the only source of hearsay. The affidavit’s fourth paragraph states: "Michigan State Police chemist Allen Kamppainen determined the presence of cocaine on the 'tooters.’ There was also marijuana residue and seeds and four partial marijuana cigarettes.” Nowhere does the affiant provide facts from which a magistrate could determine that Kamppainen is a credible person, nor does it state reasons for finding the information reliable. While the law assumes police officers to be credible sources, a police officer affiant still must show the information received from a fellow officer to be reliable.5 Here, the affiant does not state how the chemist *107determined the presence of cocaine—it might not have been from personal knowledge—nor does he specify who confirmed the presence of marijuana or how it was confirmed. Absent this information, a magistrate could not make the finding of reliability required by Sherbine.

In paragraph two, the affidavit states, "Inspection of the garbage and laboratory testing revealed marijuana residue in a grocery bag, a marijuana roach in a garbage bag . ...” It does not state who performed the test. Absent that information, the magistrate could not make the finding of reliability, credibility, or personal knowledge required by Sherbine.

Every statement connecting marijuana or cocaine to the house at 12080 Verlin Drive fails the three-prong test of Sherbine. The affidavit did not satisfy the requirements of MCL 780.653; MSA 28.1259(3). The warrant was invalid, and the trial court erred when it refused to suppress the evidence obtained in the search.

Reversed.

Wahls, P.J., concurred.

See People v Reid, 420 Mich 326; 362 NW2d 655 (1984).

421 Mich 502; 364 NW2d 658 (1984).

Sherbine, supra, pp 509-510.

People v Sellars, 153 Mich App 22, 27; 394 NW2d 133 (1986).

Sellars, supra, p 27.