People v. Nunez

O’Connell, J.

(concurring). I concur in the majority opinion insofar as it affirms defendant’s sentence and concludes that there was sufficient evidence to support defendant’s conviction. I also concur in the result of the majority opinion in affirming the trial court’s denial of defendant’s motion to suppress. However, I do so on alternative reasoning. I conclude that the search warrant issued in this case was not founded on probable cause. I would nonetheless affirm the denial of defendant’s motion to suppress because the police relied, in good faith, on a facially valid search warrant. For the reasons I set forth in People v Hellis, 211 Mich App 634, 646-649; 536 NW2d 587 (1995), I again urge the adoption in Michigan of the good-faith exception to the exclusionary rule.

I. THE MAJORITY’S “DRUG DEALER” EXCEPTION TO THE PROBABLE CAUSE REQUIREMENT

Both the United States and Michigan Constitutions protect citizens against unreasonable searches and require that all search warrants be based on probable cause, supported by oath or affirmation. US Const, Am IV; Const 1963, art 1, § 11. Probable cause is not easily defined. See Ornelas v United States, 517 US 690, 695; 116 S Ct 1657; 134 L Ed 2d 911 (1996); People v Russo, 439 Mich 584, 608; 487 NW2d 698 (1992). It “is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v Gates, 462 US 213, 232; 103 S Ct *6202317; 76 L Ed 2d 527 (1983). Thus, the totality of the circumstances must be considered. Id. at 230-231; Russo, supra at 608.

Although it is difficult to articulate precisely what constitutes probable cause, it is clear that mere suspicion is insufficient. Wong Sun v United States, 371 US 471, 479; 83 S Ct 407; 9 L Ed 2d 441 (1963); People, ex rel Attorney General v Lansing Municipal Judge, 327 Mich 410, 425; 42 NW2d 120 (1950); People v Pitts, 40 Mich App 567, 579; 199 NW2d 271 (1972); United States v Smith, 182 F3d 473, 477 (CA 6, 1999). Probable cause to search has been described as existing where a reasonably prudent person, considering all the known facts and circumstances, would be justified in believing that contraband or evidence of a crime will be found. Ornelas, supra at 696. Additionally,. in order for probable cause to exist to search a particular place, a sufficient nexus must be shown between the place to be searched and the suspected evidence of criminal activity. United States v Swaggerty, 8 F Supp 2d 975, 977 (ED Mich, 1998). See also Russo, supra at 606-607 (“[P]robable 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.") (emphasis added); People v Dowdy, 211 Mich App 562, 568; 536 NW2d 794 (1995) (“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.”) (emphasis added).

An illustrative case is United States v Schultz, 14 F3d 1093, 1097-1098 (CA 6, 1994), where the court held that no probable cause existed to search safe-deposit boxes belonging to the defendant, even where *621the police had probable cause to search the defendant’s residence for evidence of narcotics trafficking and the police officers’ training and experience indicated to them that it was common for drug dealers to keep records of drug distribution in safe-deposit boxes. The court concluded that the police had nothing more than a guess that evidence of criminal activity would be found in the boxes. Id. The court specifically held that a search of property merely because it is “owned, rented, or otherwise used by a criminal suspect [is] just the type of broad warrant the Fourth Amendment was designed to foreclose.” Id. at 1098.

In the instant case, the only nexus between the defendant’s residence and the suspected criminal activity was simply that defendant lived there. This is insufficient. Simply establishing probable cause to believe that a person has engaged in criminal activity does not automatically provide the requisite nexus between that criminal activity and the person’s home. “[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed . . . .” United States v United States District Court, 407 US 297, 313; 92 S Ct 2125; 32 L Ed 2d 752 (1972). The fact that a homeowner is suspected of criminal activity, alone, is not enough justification to allow the drastic intrusion of a search of the home. “The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” Zurcher v Stanford Daily, 436 US 547, 556; 98 S Ct 1970; 56 L Ed 2d 525 (1978).

*622The majority emphasizes the fact that defendant lied to the police about where he lived, concluding that this bolstered the inference that evidence of drug trafficking would be found at his residence. However, the underlying inference is flawed, as discussed above. Simply because defendant lied about where he lived did not supply the requisite nexus between the suspected evidence and defendant’s residence. Although deliberately furtive behavior is one factor to consider in determining whether probable cause exists, Sibron v New York, 392 US 40, 66-67; 88 S Ct 1889; 20 L Ed 2d 917 (1968), such behavior does not, by itself, supply the requisite nexus in this case. The other circumstances listed in the affidavit did not set forth sufficient facts to create a link between the suspected criminal activity and defendant’s residence. Absent such other facts, the most that can be said about defendant’s lie is that it raises a suspicion concerning his residence. However, mere suspicion is not enough.

The majority relies on People v Darwich, 226 Mich App 635; 575 NW2d 44 (1997), in which this Court held that probable cause existed to search the defendant’s residence where the affidavit contained information that the defendant was involved in the distribution of marijuana from his place of business, that no significant quantity of marijuana was found there, and that the affiant’s experience in law enforcement led him to believe that drug dealers commonly store drugs at one location and distribute them from another. The majority acknowledges that, in Darwich, the affiant provided a specific connection between the defendant’s residence and evidence of drug trafficking, based on the affiant’s law enforcement expe*623rience that drag dealers store drags somewhere different from the point of distribution. There was no such statement by the affiant in the instant case. The majority dismisses this distinction, insisting that the magistrate was free to make the inference on his own. However, this ignores the fact that the nexus to another location in Darwich was based on the affiant’s law enforcement experience. This was one of the totality of the facts to be considered by the magistrate. The magistrate is not free to consider facts not contained in the affidavit. I find Darwich to be distinguishable from the instant case.

Although Darwich is not controlling here, I note my grave concerns about allowing police officers to obtain a warrant to search the residences of drag dealers simply by stating in the affidavit that their experience leads them to believe that drag dealers commonly keep drags at their residences.1 This comes close to carving out a “drag dealer” exception to the requirement that probable cause exist to connect suspected criminal activity with a particular place. Simply because a criminal lives at the location is not enough. Likewise, simply because contraband is found in a vehicle, as in the instant case, does not allow the police to search the vehicle owner’s residence. Before the police may search a home, they must demonstrate a sufficient nexus between that particular home and the suspected criminal activity.

*624In short, mere suspicion does not constitute probable cause. In this case, the officers had little more than mere suspicion. The fact that a suspected drug dealer lives at a particular location does not provide a sufficient nexus between that location and the suspected criminal activity to justify a search. Therefore, I conclude that the search warrant in this case was not supported by probable cause. Nonetheless, I would affirm the denial of defendant’s motion to suppress because the police were relying, in good faith, on a facially valid search warrant.

n. THE GOOD-FAITH EXCEPTION TO THE EXCLUSIONARY RULE

The exclusionary rule, because it prevents the consideration of probative evidence, “imposes significant costs: it undeniably detracts from the truthfinding process and allows many who would otherwise be incarcerated to escape the consequences of their actions.” Pennsylvania Bd of Probation & Parole v Scott, 524 US 357, 364; 118 S Ct 2014; 141 L Ed 2d 344 (1998). See also People v Stevens (After Remand), 460 Mich 626, 645; 597 NW2d 53 (1999) (Courts must sparingly exclude material evidence because to do so “would interfere with the function of a criminal trial, which [is] the determination of the truth or falsity of the charges.”). Therefore, the exclusionary rule should be applied only where it advances its purpose of deterring future unlawful police misconduct. Illinois v Krull, 480 US 340, 347; 107 S Ct 1160; 94 L Ed 2d 364 (1987).

The United States Supreme Court recognized, sixteen years ago, a good-faith exception to application of the exclusionary rule where the police rely, in good faith, on a search warrant later determined to *625be lacking in probable cause. United States v Leon, 468 US 897, 922; 104 S Ct 3405; 82 L Ed 2d 677 (1984).

The rationale for this exception is that applying the exclusionary rule remedy in such a situation does not further the objectives of the rule — namely, the deterrence of police misconduct. Id. at 916, 921; Hellis, supra at 648. Accordingly, it is undeniably clear that suppression of the evidence in this case is not mandated under the Fourth Amendment.

Moreover, the Michigan Constitution provides no greater protection than does the United States Constitution, absent compelling reasons. People v Levine, 461 Mich 172, 178; 600 NW2d 622 (1999); People v Collins, 438 Mich 8, 25; 475 NW2d 684 (1991). I reiterate my view that “[t]he language and history of Const 1963, art 1, § 11 provide no justification for rejecting application of the good-faith exception to the exclusionary rule where, as here, the police presented their information in support of a determination of probable cause, wholly untainted by any improper police conduct, to a neutral and detached magistrate, a member of the judicial branch.” Hellis, supra at 649.2

For these reasons, as well as those I set forth in Hellis, supra, I would apply the good-faith exception to the exclusionary rule in this case. Accordingly, I concur in affirming the trial court’s denial of defendant’s motion to suppress.

The federal courts are divided on this issue. Some courts have upheld search warrants based on the affiant’s experience that drug activity is commonly found at the residences of drug dealers. Other courts have held that allowing a search of a home on this basis is repugnant to the Fourth Amendment. See, e.g., Schultz, supra; United States v Feliz, 182 F3d 82, 88 (CA 1, 1999); United States v Rosario, 918 F Supp 524, 530-531 (D RI, 1996), and cases cited therein.

Only one case decided after November 1, 1990, has refused to recognize the good-faith exception to the exclusionary rule. MCR 7.215(H)(1). However, that case is distinguishable because it involved direct police misconduct — a warrant to search the defendant’s residence was based on evidence seized from an illegal search of the defendant’s person without a warrant. People v Hill, 192 Mich App 54, 56; 480 NW2d 594 (1991). See Hellis, supra at 647, distinguishing Hill, supra.