People v. Hellis

Jansen, J.

(concurring). I concur in parts i and hi of Judge O’Connell’s opinion. I concur in the result only in part n because I do not believe that any so-called "good-faith” exception to the exclusionary rule should be adopted in this state. However, I would affirm defendant’s conviction on the basis that the search warrant was supported sufficiently by probable cause.

i

A

With respect to Judge O’Connell’s attempt to adopt a good-faith exception to the exclusionary rule, I do not agree. It is well established that there is no good-faith exception to the exclusionary rule in Michigan, and I would adhere to that precedent.

In People v Bloyd, 416 Mich 538, 556; 331 NW2d 447 (1982), three of the six justices participating in that case declined to adopt the good-faith exception to the exclusionary rule. Three of the remaining justices concurred in the result, but for a different reason. Although Bloyd does not establish a rule of law by stare decisis because a majority of justices sitting in the case did not agree that the good-faith exception does not apply, People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973), Bloyd presents a starting point for this Court.

In People v David, 119 Mich App 289, 297-299; *652326 NW2d 485 (1982), this Court refused to recognize a good-faith exception to the exclusionary rule. Next, in People v Sellars, 153 Mich App 22, 28; 394 NW2d 133 (1986), this Court refused to adopt the good-faith exception to the exclusionary rule, noting that our Supreme Court did not do so in People v Sherbine, 421 Mich 502; 364 NW2d 658 (1984), which was decided after the United States Supreme Court had adopted a good-faith exception to the exclusionary rule in United States v Leon, 468 US 897; 104 S Ct 3405; 82 L Ed 2d 677 (1984).

Likewise, in People v Sundling, 153 Mich App 277, 289; 395 NW2d 308 (1986), this Court held that it was error for the trial court to apply a good-faith exception to the exclusionary rule. This Court set forth compelling reasons not to adopt a good-faith exception and specifically questioned the utility of the good-faith exception "in light of the dearth of evidence indicating that application of the exclusionary rule substantially hinders effective and efficient law enforcement.” Id., p 292. Next, in People v Tanis, 153 Mich App 806, 813; 396 NW2d 544 (1986), this Court held that it would "not adopt a rule that, where the police act in good faith and reasonable reliance on a search warrant which is issued in violation of a statute, the exclusionary rule will not be applied.”

In People v Jackson, 180 Mich App 339, 346; 446 NW2d 891 (1989), this Court held that Michigan courts have declined to adopt a good-faith exception to the exclusionary rule, finding greater protection afforded a defendant under the state constitution.. In People v Hill, 192 Mich App 54, 56; 480 NW2d 594 (1991), this Court again declined to recognize and adopt a good-faith exception to the search warrant requirement where the police acted pursuant to a search warrant they believed *653was valid. Finally, in People v Paladino, 204 Mich App 505, 507; 516 NW2d 113 (1994), this Court rejected the application of the good-faith rule where the police acted on a warrant that was later ruled to be invalid. Although the panel in Paladino stated that it was following Hill only because it was required to do so under Administrative Order No. 1990-6, there is no appellate court opinion in this state that has adopted a good-faith exception to the exclusionary rule.

Judge O’Connell’s attempt to distinguish Hill from the present case is a distinction without a difference and appears to be an attempt merely to diverge from the well-established precedent in this state that there is no good-faith exception to the exclusionary rule. In David, Sundling, Tanis, Jackson, and Paladino, the police relied on search warrants that were later found to be invalid. Yet, in all those cases, the Court of Appeals still held that it would not adopt a good-faith exception to the exclusionary rule despite the fact that there was no primary police illegality. Further, in Hill, the police first acted illegally because they did not have probable cause to arrest the defendant without a warrant. After arresting defendant and searching him, the police were able to obtain a search warrant for the defendant’s house. Because the initial arrest and search were illegal, the search warrant was invalid because probable cause to issue the warrant was based on the illegal arrest and search. However, this Court held that it would not recognize and apply a good-faith exception to the search warrant requirement where the police acted on a search warrant they believed was valid. Hill, supra, p 56.

Thus, the attempt to distinguish primary police illegality from secondary police illegality (acting upon what the police believe is a valid warrant) is *654simply a distinction without a difference in Michigan jurisprudence. This is so because this Court in cases decided in this state after the United States Supreme Court adopted a good-faith exception to the exclusionary rule continued not to adopt any good-faith exception to the exclusionary rule where the police acted on a warrant later found to be invalid. Tanis, supra, pp 812-813; Sundling, supra, pp 289-292; Jackson, supra, pp 345-346; Paladino, supra, p 507.

Further, recent Michigan Supreme Court decisions do not undercut the supporting rationale of those decisions decided before Hill. In Sitz v Dep’t of State Police, 443 Mich 744, 752; 506 NW2d 209 (1993), our Supreme Court made clear that Const 1963, art 1, § 11 is to be construed as providing the same protection as that secured by the Fourth Amendment unless there is a compelling reason to impose a different interpretation. Such compelling reasons were succinctly set forth in David, supra, pp 297-298, and they are repeated here:

Such a holding [that the exclusionary rule need not be applied where the police act unconstitutionally but in good faith] would, in effect, remove the probable cause requirement from the Fourth Amendment. A "good-faith” exception to the exclusionary rule would insulate the magistrate’s decision to grant a search warrant from appellate review. In every case where a constitutionally infirm search warrant was issued, the prosecution could reasonably claim that the police acted in good faith. In effect, the constitutional language that all warrants be issued only on a showing of probable cause would become a nullity.
Furthermore, adoption of a "good-faith” standard would remove the incentive for police officers to find out what sort of police conduct constitutes an unreasonable invasion of privacy. On a police force, efficiency in obtaining convictions is re*655warded so recognition of a good-faith exception to the warrant requirement would encourage police officers to remain ignorant of the law in order to garner more evidence and obtain more convictions. The end result, increased illegal police activity, is the very problem that the exclusionary rule is designed to avert.

Further, the exclusionary rule has a longer history in this state than the federal exclusionary rule. "Our commitment to the protection of liberty was further demonstrated when the Supreme Court of Michigan adopted an exclusionary rule in 1919, forty-two years before it was mandated by federal law. People v Marxhausen, 204 Mich 559; 171 NW 557 (1919).” Sitz, supra, pp 775-776. Moreover, beginning in 1982, this Court has consistently declined to adopt a good-faith exception to the exclusionary rule.

Accordingly, there is a compelling reason to impose a different interpretation under the Michigan Constitution and not adopt a good-faith exception to the exclusionary rule in this state. Therefore, I would find that the trial court clearly erred in applying a good-faith exception to the exclusionary rule, because I am left with a definite and firm conviction that a mistake has been made. People v Faucett, 442 Mich 153, 170; 499 NW2d 764 (1993); People v Lyons (On Remand), 203 Mich App 465, 468; 513 NW2d 170 (1994). There is no authority to adopt a good-faith exception to the exclusionary rule under Michigan jurisprudence, and the trial court erred in doing so:

B

Although the trial court clearly erred in applying a good-faith exception to the exclusionary rule, Judge Holbrook, Jr., and I would still affirm the *656trial court’s decision to deny the motion to suppress on other grounds. In re People v Jory, 443 Mich 403, 425; 505 NW2d 228 (1993). We would find that the search warrant was supported adequately by probable cause.

The search warrant and the underlying affidavit are to be read in a common-sense and realistic manner. The reviewing court must 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. People v Russo, 439 Mich 584, 604; 487 NW2d 698 (1992).

The affiant of the affidavit, Lieutenant LaFond of the South Lyon Police Department, stated that marijuana, hashish, cocaine, and psilocylin were located at 775 McMunn Street in the City of South Lyon. This was described as a two-story condominium unit. Probable cause to believe that the contraband was in the condominium unit was based on the following facts. On January 5, 1992, South Lyon police officer Baaki was in his patrol car when he observed a 1984 Ford traveling south on Pontiac Trail. The officer detected an excessively loud muffler and. pulled over defendant. Upon making contact with defendant, Baaki noticed a strong odor of burnt marijuana. Defendant admitted to the officer that he recently had been with friends who were smoking marijuana. Defendant then consented to Baaki searching the passenger compartment of the car. However, defendant specifically asked Baaki not to disturb the boxes that were in the car, because he was in the process of moving and the boxes contained his personal property. Another officer arrived and found a marijuana cigarette under the driver’s seat. Defendant was then arrested and found to be in possession of over $2,000 in cash. The car was impounded and *657searched, and 1489 grams of marijuana, 70.5 grams of hashish, three grams of cocaine, 7.5 grams of psilocylin, a triple beam scale, and sixteen bars of 1600-ounce silver were recovered.

After being advised of his Miranda rights, defendant gave a statement and told the officers that he was in the process of moving and that he was completing his last trip to the condominium when he was stopped. Defendant stated that some of bis property already had been moved to the condominium and that the condominium was his final destination. On January 6, Lt. LaFond went to the condominium located at 775 McMunn and saw moving boxes on the floor, a television that was turned on, ánd a porch light that was on.

Contrary to the trial court’s ruling, I find that the sworn affidavit sufficiently sets forth facts to establish probable cause to believe that contraband would be found in the condominium unit located at 775 McMunn. In this case, the nexus between defendant, his residence, and the contraband was established by the facts set forth in the affidavit. Here, there was a necessary connection because a great deal of contraband was found in defendant’s car, defendant admitted that he was in the process of moving, defendant further stated that the condominium unit was his final destination and that he already had moved some of his personal property there, and the police officer saw boxes in the condominium unit. Thus, there was probable cause to believe that contraband would be found in defendant’s residence. People v Landt, 439 Mich 870 (1991); People v Brake, 208 Mich App 233, 239-242; 527 NW2d 56 (1994).

Accordingly, the affidavit gave the magistrate reasonable grounds to believe that defendant was engaged in illegal drug activity and that a search of his residence probably would uncover contra*658band. Thus, probable cause to search defendant’s residence existed at the time that the warrant was issued. The trial court should have denied defendant’s motion to suppress on this basis below.

Because there is a majority agreeing to the result on all the issues presented, defendant’s convictions and sentences are affirmed.