People v. Keller

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 25, 2007

THE PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 131223

MICHAEL DAVID KELLER,

Defendant-Appellee.
_______________________________

THE PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 131224

MELINDA SUE KELLER,

Defendant-Appellee.
_______________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

We ordered oral argument on the prosecution’s applications for leave to

appeal to consider the sufficiency of an affidavit in support of a search warrant

under the Fourth Amendment and MCL 780.653, as well as the proper remedy for

violations of MCL 780.653. Because we find no constitutional or statutory
violation, these consolidated appeals do not present the opportunity to discuss

remedies for such violations. Therefore, we reverse the judgments of the lower

courts, which held that violations of the statute and the constitution had occurred,

and remand the cases to the Genesee Circuit Court for further proceedings

consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Crime Stoppers1 received an anonymous tip that defendants were operating

a marijuana growing and distribution operation out of their home in Flint. Crime

Stoppers passed the tip on to the Flint police, who conducted surveillance at

defendants’ home on three separate days, but did not observe any evidence of a

marijuana growing and distribution operation. The police then conducted a “trash

pull” at defendants’ home and discovered a partially burnt marijuana cigarette, a

green leafy substance on the side of a pizza box, and correspondence tying

defendants to the residence. Based on this information, the police applied for a

search warrant for defendants’ home.

The affidavit in support of the warrant application is particularly important

to this appeal. Paragraph seven stated:

1
The prosecutor describes Crime Stoppers as “a public service
announcement on television asking for information about particular crimes. The
individuals giving information are sometimes monetarily rewarded.” See MCL
600.2157b(4)(b) (“‘Crime stoppers organization’ means a private, nonprofit
organization that distributes rewards to persons who report to the organization
information concerning criminal activity and that forwards the information to the
appropriate law enforcement agency.”).

2

 That during the past several weeks, your affiant received an
anonymous tip stating that large quantities of marijuana was being
sold and manufactured out of 3828 Maryland, City of Flint, Genesee
County Michigan. The tipster also indicated that there is a hidden
room used for manufacturing Marijuana inside said residence.

In paragraph eight, the affidavit stated:

That on November 30, 2004, your affiant removed two (2)
trash bags, white in color with red ties that were located on the south
side of Maryland, east of the driveway, near the curb of 3828
Maryland. After removing the trash bags your affiant transported
the bags directly to the office of the City of Flint Police Department.
Your affiant and fellow officer Marcus Mahan examined the
contents of the trash bags. Found inside the trash bags were one (1)
suspected marijuana roach, and a green leafy substance on the side
of a pizza box, and several pieces of correspondence addressed to
Michael/Melinda Keller of 3828 Maryland.

Paragraph nine stated “[y]our affiant field test[ed] . . . the suspected marijuana

which tested positive for the presence of marijuana.” Based on the affidavit, the

magistrate issued a search warrant.

When the police executed the search warrant, they uncovered nearly six

ounces of marijuana, as well as firearms and marijuana smoking paraphernalia.

Both defendants were charged with maintaining a drug house2 and possession of

marijuana.3 The district court bound both defendants over to the circuit court for

trial on those charges.

2
MCL 333.7405(1)(d) and MCL 333.7406.
3
Mr. Keller was charged with possession with intent to deliver, MCL
333.7401, while Mrs. Keller was charged with simple possession, MCL 333.7403.

3

 In the circuit court, defendants filed motions in limine to suppress any

evidence obtained during the execution of the search warrant, arguing that “the

reliability and credibility standards set forth in MCLA 780.653 are totally absent

from this case relative to the time of the issuance of the search warrant.”

Specifically, defendants argued that the police misled the district judge issuing the

warrant, and that there was no support for the anonymous tip. The circuit court

found a violation of MCL 780.653, but the court held that it could not order

suppression based on that violation, citing People v Hawkins.4 To remedy the

violation, the court held that defendants could “argue to the jury that the police

department intentionally violated the law of the State of Michigan; that the police

department deliberately conducted or mislead [sic] a magistrate when seeking the

search warrant.”5

The prosecutor filed interlocutory appeals, raising only the issue of the

proper remedy for a violation of MCL 780.653. The Court of Appeals granted the

prosecutor’s applications for leave to appeal, but instead of addressing the issue

raised by the prosecutor, the Court held that the search warrant and the underlying

affidavit could not support a finding of probable cause. “Therefore, any evidence

obtained pursuant to the warrant was illegally obtained and should be suppressed

4
468 Mich 488; 668 NW2d 602 (2003).
5
The circuit court also heard motions regarding the corpus delicti rule,
whether to quash the bindovers on the charges of maintaining a drug house, and
whether separate trials were warranted. However, none of those motions is
presently before this Court.

4

by the operation of the exclusionary rule unless an exception applies.”6 The Court

then opined that “the good-faith exception is inapplicable in this case.”7 The

Court cited two facts to support that conclusion. First, “[t]he affiant indicated that

she had directly received the anonymous tip and then conveyed it to police.”8

Second, “the affidavit indicates that only a roach and some possible marijuana

residue were found during a trash pull—hardly evidence that would lead a

reasonable person to believe that drug trafficking was occurring at the house.”9

Additionally, the Court held that “[b]ecause the affidavit was insufficient, we

would also conclude that the magistrate wholly abandoned his judicial role when

he issued the warrant.”10

Judge Talbot dissented. He argued that the suppression ruling was not

properly before the Court because defendants never appealed that ruling. With

respect to the issue properly before the Court, Judge Talbot disagreed with the

circuit court ruling that defendants could argue to the jury that the police misled

the magistrate and violated MCL 780.653. He concluded that “if the Legislature

intended to allow a defendant to argue to the jury that the police illegally obtained

a search warrant as a remedy for a violation of MCL 780.653, it would have

6
People v Keller, 270 Mich App 446, 450; 716 NW2d 311 (2006).
7
Id. at 451.
8
Id.
9
Id.
10
Id.

5

specifically listed such a remedy and would not have provided the specific

remedies in MCL 780.657 and MCL 780.658.”11

This Court scheduled oral argument on the prosecutor’s application for

leave to appeal.12 The order directed the parties to address four issues:

(1) whether the presence in the defendants’ trash of a small
amount of marijuana constituted probable cause justifying the
search; (2) assuming there was a Fourth Amendment violation,
whether the police acted in objectively reasonable good-faith
reliance on the warrant; (3) whether the search violated MCL
780.653; and (4) assuming that the search violated MCL 780.653,
but not the Fourth Amendment, whether the trial court elected a
proper remedy by permitting the defense to argue to the jury that the
police misled the magistrate and violated Michigan law in their
efforts to obtain a search warrant.[13]

STANDARD OF REVIEW

“Questions of law relevant to a motion to suppress evidence are reviewed

de novo.”14 Similarly, constitutional and statutory construction involves questions

11
Id. at 456 (Talbot, J., dissenting). MCL 780.657 provides for a fine of
not more than $1,000 or up to one year of imprisonment for “[a]ny person who in
executing a search warrant, wilfully exceeds his authority or exercises it with
unnecessary severity . . . .” MCL 780.658 provides for the same penalties for
“[a]ny person who maliciously and without probable cause procures a search
warrant to be issued and executed . . . .”
12
477 Mich 968 (2006).
13
Id.
14
Hawkins, supra at 496-497, citing People v Hamilton, 465 Mich 526,
529; 638 NW2d 92 (2002); see also People v Stevens (After Remand), 460 Mich
626, 631; 597 NW2d 53 (1999).

6

of law that are also reviewed de novo.15 However, “‘after-the-fact scrutiny by

courts of the sufficiency of an affidavit should not take the form of de novo

review. A magistrate’s “determination of probable cause should be paid great

deference by reviewing courts.”’”16

ANALYSIS

There are two separate but related issues presented by this appeal. The first

concerns the constitutional validity of the affidavit in support of the search

warrant. If the affidavit was constitutionally infirm, then the Court of Appeals

correctly held that, absent an exception, the evidence seized pursuant to the

warrant must be excluded.17 However, if the affidavit passes constitutional

15
City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28
(2006).
16
People v Russo, 439 Mich 584, 603-604; 487 NW2d 698 (1992), quoting
Illinois v Gates, 462 US 213, 236; 103 S Ct 2317; 76 L Ed 2d 527 (1983), quoting
Spinelli v United States, 393 US 410, 419; 89 S Ct 584; 21 L Ed 2d 637 (1969).
17
People v Goldston, 470 Mich 523, 525-526; 682 NW2d 479 (2004).
However, the Court was incorrect to conclude that “the good-faith exception is
inapplicable in this case” and that “[b]ecause the affidavit was insufficient, . . . the
magistrate wholly abandoned his judicial role when he issued the warrant.”
Keller, supra at 451. The affiant did not “mislead” the district judge, id., and the
affidavit was not “lacking in indicia of probable cause . . . .” Goldston, supra at
531 (quotation marks omitted). Moreover, an appellate court’s determination that
an affidavit was insufficient does not, in and of itself, provide adequate support for
the conclusion that a magistrate “wholly abandoned his judicial role.”
Abandoning the judicial role requires more than reaching a different legal
conclusion from that of an appellate court. See, e.g., Lo-Ji Sales, Inc v New York,
442 US 319, 328; 99 S Ct 2319; 60 L Ed 2d 920 (1979).

7

muster, then the Court must determine whether the affidavit conformed to MCL

780.653.18

THE CONSTITUTIONALITY OF THE SEARCH WARRANT

The Fourth Amendment requires a warrant to “particularly describ[e] the

place to be searched, and the person or things to be seized.” The probable cause

requirement is relevant to whether “contraband or evidence of a crime will be

found in a particular place.”19 With respect to appellate review of probable cause

for the issuance of a warrant,

[t]he task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the “veracity” and “basis
of knowledge” of persons supplying hearsay information, there is a
fair probability that contraband or evidence of a crime will be found

18
MCL 780.653 provides:
The magistrate’s finding of reasonable or probable cause shall
be based upon all the facts related within the affidavit made before
him or her. The affidavit may be based upon information supplied to
the complainant by a named or unnamed person if the affidavit
contains 1 of the following:
(a) If the person is named, affirmative allegations from which
the magistrate may conclude that the person spoke with personal
knowledge of the information.
(b) If the person is unnamed, affirmative allegations from
which the magistrate may conclude that the person spoke with
personal knowledge of the information and either that the unnamed
person is credible or that the information is reliable.
19
Gates, supra at 238; see also United States v Grubbs, 547 US 90, 95; 126
S Ct 1494; 164 L Ed 2d 195 (2006) (“In the typical case where the police seek
permission to search a house for an item they believe is already located there, the
magistrate’s determination that there is probable cause for the search amounts to a
prediction that the item will still be there when the warrant is executed.”).

8

 in a particular place. And the duty of a reviewing court is simply to
ensure that the magistrate had a “substantial basis for . . .
conclud[ing]” that probable cause existed.[20]

In this case, the Court of Appeals cited two statements in the affidavit that

the magistrate may have relied on to find probable cause: (1) the reference to the

anonymous tip and (2) the reference to the roach and marijuana residue from the

trash pull. The Court dismissed the tip as unreliable because the police could not

prove that the source spoke with personal knowledge or was reliable.

Additionally, the Court found that the tip “is at significant odds” with both the

evidence from the trash pull and the evidence discovered during the execution of

the warrant.21 The Court also dismissed the evidence of marijuana discussed in

the affidavit as “only a roach and some possible marijuana residue . . . [,] hardly

evidence that would lead a reasonable person to believe that drug trafficking was

occurring at the house.”22 Ultimately, the Court of Appeals held that

[c]onsidering the search warrant and the underlying affidavit, as read
in a commonsense and realistic manner, we conclude that a
reasonably cautious person could not have concluded that there was
a “substantial basis” for the finding of probable cause, i.e., for
inferring a “fair probability” that evidence of drug trafficking would
be found at defendants’ house.[23]

20
Gates, supra at 238-239, quoting Jones v United States, 362 US 257,
271; 80 S Ct 725; 4 L Ed 2d 697 (1960) (changes in Gates). This Court
unanimously adopted this standard in People v Landt, 439 Mich 870; 475 NW2d
825 (1991), as noted in Russo, supra at 603.
21
Keller, supra at 450.
22
Id. at 451.
23
Id. at 450, citing Russo, supra at 603-604.

9

 The Court of Appeals analysis is erroneous for a number of reasons. First,

the Court reviewed the magistrate’s decision de novo.24 Review de novo is proper

for “questions of law relevant to a motion to suppress.”25 However, that standard

is not appropriate for review of the magistrate’s probable cause determination.

That determination is entitled to “‘great deference by reviewing courts.’”26

Second, the Court improperly framed this case as a test of the source’s

reliability instead of examining all the circumstances set forth in the affidavit to

determine whether there was a substantial basis for the magistrate to conclude that

“there [was] a fair probability that contraband or evidence of a crime [would] be

found” at defendants’ home.27 Focusing on the tip was inappropriate because,

regardless of the veracity of the source, the officer participated in a trash pull that

revealed evidence of marijuana and correspondence tying the trash to the

defendants. The presence of marijuana in defendants’ trash shows “a fair

probability that contraband or evidence of a crime will be found in a particular

place.”28 Because this officer uncovered direct evidence of illegal activity, the

marijuana, it was unnecessary to delve into the veracity of the source.

24
Keller, supra at 448, citing People v Hickman, 470 Mich 602, 605; 684
NW2d 267 (2004).
25
Hickman, supra at 605.
26
Gates, supra at 236 (citation omitted).
27
Id. at 238.
28
Id.

10

 The unnecessary focus on the tip stems from the Court inappropriately

dismissing the marijuana from the “trash pull” as “only a roach.” The Court

correctly stated that the tip suggested a drug trafficking operation; however, the

police conducted further investigation, leading to the discovery of marijuana tied

to defendants’ home. The marijuana established probable cause to search the

home for additional contraband.29

The dissent focuses on the scope of the warrant, arguing that “[a] warrant

issued for drug possession would only authorize a search for marijuana and

possibly paraphernalia used in the consumption of marijuana, not the array of

evidence of distribution authorized by the warrant in this case.” Post at 5-6. The

dissent’s argument is irrelevant, however, because even supposing for the sake of

argument that probable cause did not exist to search for “evidence of distribution,”

29
The dissent rejects a finding of probable cause under these circumstances
because “[a]ll the trash pull established was that, on one occasion, someone with
access to defendants’ trash discarded a marijuana cigarette in one of their trash
bags.” Post at 6 n 3. However, as Justice Cavanagh has acknowledged, to
establish probable cause to issue a search warrant it is only necessary to show a
“‘“substantial basis” for inferring a “fair probability” that contraband or evidence
of a crime will be found in a particular place.’” Goldston, supra at 564
(Cavanagh, J., dissenting), quoting People v Kazmierczak, 461 Mich 411, 417-
418; 605 NW2d 667 (2000). Because marijuana was found in defendants’ trash
outside of defendants’ home, a “fair probability” existed that marijuana would also
be found inside defendants’ home. See United States v Briscoe, 317 F3d 906, 908
(CA 8, 2003) (holding that drugs found in trash “were sufficient stand-alone
evidence to establish probable cause” to issue search warrant for possession and
distribution) (emphasis in original); United States v Lawrence, 308 F3d 623, 627
(CA 6, 2002) (holding that probable cause existed to issue search warrant after
discovery of cocaine residue in defendant's trash, “even if [an informant’s]
statements were excised from the search warrant affidavit”).

11

 “[t]he infirmity of part of a warrant requires the suppression of
evidence seized pursuant to that part of the warrant, but does not
require the suppression of anything described in the valid portions of
the warrant (or lawfully seized—on plain view grounds, for
example—during . . . execution [of the valid portions]).” [United
States v Sells, 463 F3d 1148, 1150 (CA 10, 2006), quoting United
States v Brown, 984 F2d 1074, 1077 (CA 10, 1993).]

This rule has been adopted by every federal circuit,30 as well as our Court of

Appeals.31

As articulated in Sells, there is a “multiple-step analysis to determine

whether severability is applicable.”32 First the Court must divide the warrant into

categories. Then, the Court must evaluate the constitutionality of each category.

If only some categories are constitutional, the Court must determine if the valid

categories are distinguishable from the invalid ones and whether the valid

categories “make up the great part of the warrant.”33 Here, the warrant authorizes

the seizure of three categories of evidence: marijuana; distribution evidence, such

as currency and packaging paraphernalia; and possession evidence, such as proof

of residency. Of these three categories, the only one that is arguably invalid is the

30
See Sells, supra at 1150 n 1 (listing federal cases).
31
See, e.g., People v Ulman, 244 Mich App 500, 510; 625 NW2d 429
(2001), and People v Griffin, 235 Mich App 27, 42; 597 NW2d 176 (1999),
overruled on other grounds by People v Thompson, 477 Mich 146 (2007), both
discussing the effect of the invalidity of a portion of the affidavit for a warrant,
and People v Kolniak, 175 Mich App 16, 18-23; 437 NW2d 280 (1989).
32
Sells, supra at 1151.
33
Id.

12

distribution evidence. If it were invalid, that category would be severable from the

others.

While all three categories are related to marijuana crimes, the distribution

evidence relates to a distinct crime. Furthermore, when determining whether a

valid portion constitutes a greater part of a warrant, “merely counting parts,

without any evaluation of the practical effect of those parts, is an improperly

‘hypertechnical’ interpretation of the search authorized by the warrant.”34 Instead,

a court should “evaluate the relative scope and invasiveness of the valid and

invalid parts of the warrant.”35 In this case, the authorized search for marijuana

permitted police officers to search the entire house and to investigate containers in

which marijuana may have been found. Hence, the scope of the search authorized

by the valid portion of the search was extremely broad, and allowed police officers

to search in almost every place which the authorization to search for distribution

evidence permitted. For this reason, the valid portion of the warrant, in our

judgment, formed the greater part of the search warrant. Therefore, even if the

dissent is correct that the warrant is overbroad, the distribution category is

severable.

In this case, the police did not seize any of the “evidence of distribution”

for which the warrant authorized a search for—“plastic packages, paper packets,

34
Sells, supra at 1160.

35
Id.

13

and scales for weighing . . . and records of drug transactions . . . .” Thus, even if

that portion of the warrant is invalid, there is no need to suppress any evidence

when no “evidence of distribution” was seized, because “‘the infirmity of part of a

warrant’” only requires that “‘evidence seized pursuant to that part of the

warrant’” be suppressed.36

Therefore, even accepting the Court of Appeals determination that the

source was unreliable, the marijuana from the trash provides a “‘substantial basis

for conclud[ing]’ that probable cause existed.”37 Because the magistrate properly

found probable cause for the search, the evidence found during that search is not

36
Sells, supra at 1150, quoting Brown, supra at 1077. The dissent
considers the firearms seized to be “evidence of marijuana distribution.” Post at
16. However, it is “well settled that objects such as weapons or contraband found
in [plain view] may be seized by the police without a warrant.” People v Johnson,
431 Mich 683, 691 n 5; 431 NW2d 825 (1988). Moreover, “‘a warrant that
authorizes an officer to search a home for illegal [drugs] also provides authority to
open closets, chests, drawers, and containers in which the [drugs] might be
found.’” People v Coleman, 436 Mich 124, 131; 461 NW2d 615 (1990), quoting
United States v Ross, 456 US 798, 821; 102 S Ct 2157; 72 L Ed 2d 572 (1982). In
this case, it is unclear from the record which firearms the prosecutor sought to
introduce and where these firearms were found. However, regardless of where the
firearms were found, the firearms evidence should not be suppressed. The valid
search warrant for contraband in defendants’ home allowed police officers to
“‘open closets, chests, drawers, and containers . . . .’” Hence, even if the firearms
seized were in a container, the police officers were validly authorized to open such
containers to search for contraband. If the police officers found the firearms after
opening a container, those weapons would then be in plain view and could be
validly seized. Thus, the evidence of firearms found in defendants’ home is not
properly suppressed.
37
Id. at 238-239, quoting Jones, supra at 271.

14

subject to the exclusionary rule. We reverse the Court of Appeals holding to the

contrary.

STATUTORY CHALLENGE

The circuit court found a violation of MCL 780.653 because the hearsay

information in the affidavit was not reliable and because the officer “misled” the

magistrate. The Court of Appeals agreed, citing the fact that “[t]he affiant

indicated that she had directly received the anonymous tip when, in fact, Crime

Stoppers received the tip and then conveyed it to the police.”38 This conclusion

was based on the affidavit, which stated:

That during the past several weeks your affiant received an
anonymous tip stating that large quantities of marijuana was being
sold and manufactured out of 3828 Maryland, City of Flint, Genesee
County, Michigan. The tipster also indicated that there is a hidden
room used for manufacturing marijuana inside said residence.

We find the Court of Appeals reasoning inadequate. First, the affiant does

not indicate “that she had directly received” the tip. Because the affiant is the

subject of the sentence, it is wholly unclear who relayed the tip to her. Clearly,

one could infer that the anonymous source spoke directly to the affiant, but that is

not the only inference possible. Nonetheless, under MCL 780.653, the key fact for

purposes of probable cause is that the source was anonymous. The officer made

no attempt to conceal that fact. The fact that the anonymous source called Crime

Stoppers instead of the police is immaterial under the statute.

38
Keller, supra at 451.

15

 The statute requires that “[t]he magistrate's finding of reasonable or

probable cause shall be based upon all the facts related within the affidavit made

before him or her.”39 Further, “[t]he affidavit may be based upon information

supplied to the complainant by a named or unnamed person if the affidavit

contains” indications that the named person has personal knowledge, that the

unnamed person spoke with personal knowledge and is credible, or that the

unnamed person spoke with personal knowledge and the information is reliable.40

The issue then is whether the affidavit is “based upon” information

supplied by an unnamed person. “Base,” when used as a verb, means “to place or

establish on a base or basis; ground, found (usu[ally] fol[lowed] by on or upon):

Our plan is based on an upturn in the economy.”41 In this case, the affidavit is

“based upon” the affiant’s42 personal efforts to search the trash and discover the

marijuana because that evidence is the foundation for probable cause. The

affidavit states that “based upon the items found [in the trash pull] and [the]

affiant’s experience in the investigation of marijuana . . . [the] affiant has probable

39
MCL 780.653.
40
Id.
41
Random House Webster’s College Dictionary (1997).
42
In context, “complainant” seems to be a synonym for “affiant.” Black’s
Law Dictionary (5th ed) defines “complainant” as “[o]ne who applies to the courts
for legal redress by filing a complaint (i.e. plaintiff). Also, one who instigates
prosecution or who prefers accusation against suspected person.” The affiant, who
is also asking for a search warrant, is someone who is applying to the court for
redress or preferring an accusation.

16

cause to believe that evidence of illegal drug activity” would be found at

defendants’ address. Hence, the affidavit was explicitly “based upon” the trash

pull. While the anonymous tip prompted the investigation, the affidavit is not

“based upon” that information because the marijuana found is by itself sufficient

for probable cause. Thus, the statutory requirement that an anonymous tip bear

indicia of reliability does not come into play.43 Because there is no statutory

violation, we reverse the judgment of the circuit court.44 Further, without a

statutory violation, there is no need to discuss the propriety of the circuit court’s

remedy for the alleged violation.

43
Even if that requirement came into play, the trash pull partially
corroborating the tip provided “affirmative allegations from which the magistrate
may conclude . . . that the [anonymous source] is credible.” MCL 780.653. See
United States v Hammond, 351 F3d 765, 772 (CA 6, 2003) (a “tip can take on an
increased level of significance . . . if corroborated by the police through
subsequent investigation”); United States v Le, 173 F3d 1258, 1266 (CA 10, 1999)
(holding that tips from two informants that a defendant was selling
methamphetamine were corroborated when an officer “search[ed] Le’s refuse and
discover[ed] traces of methamphetamine”).
44
The dissent would essentially hold that whenever an affidavit makes the
slightest reference to information supplied by an informant, the requirements of
MCL 780.653 must be complied with. To reach this conclusion, the dissent relies
on the first sentence of MCL 780.653, which states that “[t]he magistrate’s finding
of reasonable or probable cause shall be based upon all the facts related within the
affidavit made before him or her.” Contrary to what the dissent concludes, the
phrase “based upon” has the same meaning in both the first and second sentences.
The difference between the sentences is that the first requires the magistrate to
found his or her probable cause determination on all the information in the
affidavit, while the second sentence only applies if the affidavit itself is founded
on information from a source other than the affiant.

17

 CONCLUSION

We disagree with the lower courts’ holdings that the affidavit in support of

the search warrant failed to establish probable cause and that there was a violation

of MCL 780.653. Therefore, we reverse the Court of Appeals order to suppress

the evidence obtained from the search and the circuit court’s order allowing

defendants to argue a statutory violation to the jury. We remand the cases to the

circuit court for further proceedings in accordance with this opinion.

Robert P. Young, Jr.
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Stephen J. Markman

18

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,
No. 131223
v

MICHAEL DAVID KELLER,

Defendant-Appellee.
__________________________________________

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 131224

MELINDA SUE KELLER,

Defendant-Appellee.
__________________________________________

CAVANAGH, J. (dissenting).

Because I believe that the search warrant issued in this case was

constitutionally invalid, I respectfully dissent. I would affirm the judgment of the

Court of Appeals.

I. THE CONSTITUTIONALITY OF THE SEARCH WARRANT

I disagree with the majority’s conclusion that the search warrant was

constitutionally valid. The United States Constitution requires search warrants to
be based “upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.” US

Const, Am IV.1 Those seeking the warrant must demonstrate to the magistrate

their probable cause to believe that “the evidence sought will aid in a particular

apprehension or conviction” for a particular offense. Warden, Maryland

Penitentiary v Hayden, 387 US 294, 307; 87 S Ct 1642; 18 L Ed 2d 782 (1967).

To determine whether probable cause exists, a magistrate must evaluate “whether,

given all the circumstances . . . , including the ‘veracity’ and ‘basis of knowledge’

of persons supplying hearsay information, there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Illinois v

Gates, 462 US 213, 238; 103 S Ct 2317; 76 L Ed 2d 527 (1983).

In Michigan, these constitutional mandates are implemented in part by

MCL 780.651(1) and MCL 780.653, which require that probable cause be shown

through an affidavit presented to a magistrate who will decide, on the basis of the

facts related within the affidavit, whether to issue a warrant. If an affidavit

contains hearsay information, MCL 780.653 calls for assurances that the

information is credible and based on personal knowledge. An affidavit based on

information from an unnamed source must include “affirmative allegations from

which the magistrate may conclude that the person spoke with personal knowledge

1
Similarly, the Michigan Constitution provides that “[n]o warrant to search
any place or to seize any person or things shall issue without describing them, nor
without probable cause, supported by oath or affirmation.” Const 1963, art 1, §
11.

2

of the information and either that the unnamed person is credible or that the

information is reliable.” MCL 780.653(b).

The search warrant issued in this case failed to meet the constitutional

standards enunciated in Gates and implemented by MCL 780.653(b). Our role in

reviewing the constitutional validity of a search warrant is to assess the

magistrate’s determination to ensure that there was a “‘substantial basis for . . .

conclud[ing]’ that probable cause existed.” Gates, supra at 238-239, quoting Jones

v United States, 362 US 257, 271; 80 S Ct 725; 4 L Ed 2d 697 (1960). The search

warrant was supported by an affidavit that contained information from an

anonymous source2 and evidence from a “trash pull” conducted at defendants’

residence. The information in the affidavit did not provide a substantial basis for

concluding that a search of defendants’ residence would uncover evidence of drug

trafficking.

Under Gates and MCL 780.653, the magistrate must consider the basis of

the source’s knowledge. The affidavit contained no indication that the anonymous

source spoke with personal knowledge of defendants’ alleged manufacturing and

distribution scheme. The mere assertion that marijuana was being manufactured

in a hidden room of a residence does not amount to an “explicit and detailed

2
The affidavit stated that “your affiant received an anonymous tip stating
that large quantities of marijuana was [sic] being sold and manufactured out of
[defendants’ residence]. The tipster also indicated that there is a hidden room used
for manufacturing Marijuana inside said residence.”

3

description of alleged wrongdoing, along with a statement that the event was

observed first-hand,” that would build confidence in the source’s information.

Gates, supra at 234.

In addition, the affidavit failed to establish the credibility of the anonymous

source. For example, the affiant did not indicate that the source had provided

reliable information in the past. Nor did the evidence discovered in the trash pull

demonstrate that the source was credible or the information reliable by

corroborating the allegation of drug trafficking. The trash pull uncovered

remnants of a single burnt marijuana cigarette, while the source had accused

defendants of manufacturing and selling large quantities of marijuana in their

home. The information contained in the affidavit entirely failed to establish the

source’s credibility and the accuracy of the information.

Of course, no single factor—the source’s basis of knowledge, the reliability

of the information, or the veracity of the source—is dispositive. Under the

totality-of-the-circumstances analysis of Gates, the magistrate weighs the “various

indicia of reliability” to make a “balanced assessment” of an informant’s tip. Id.

But here no factor weighed heavily enough to justify crediting the anonymous tip.

And without the anonymous tip, the affidavit contained only evidence of a single

burnt marijuana cigarette retrieved through a trash pull—not enough evidence to

conclude that defendants’ residence was being used to sell and manufacture large

quantities of marijuana. Accordingly, the magistrate did not have a substantial

4

basis for believing that a search of defendants’ residence would uncover evidence

of marijuana manufacturing and sale.

The majority contends that even if the anonymous source was unreliable,

the warrant was nonetheless valid because the marijuana discovered in the trash

pull supplied “probable cause to search the home for additional contraband.” Ante

at 11. But this assertion completely disregards the scope of the warrant. The

Fourth Amendment expressly requires that a search warrant “particularly

describ[e] the place to be searched, and the persons or things to be seized.” A

search that exceeds the scope of its authorizing warrant is constitutionally invalid.

“[A]n otherwise unobjectionable description of the objects to be seized is

defective if it is broader than can be justified by the probable cause upon which

the warrant is based.” 2 LaFave, Search & Seizure (4th ed), § 4.6(a), p 607. The

evidence recovered from the trash pull alone cannot validate a search under the

warrant issued in this case. The warrant authorized a search for evidence of

narcotics distribution when at most the trash pull would have only established

probable cause for possession of marijuana.3 A warrant issued for drug possession

3
The warrant authorized a search for
marijuana and other controlled substances, U.S. Currency,
paraphernalia used in the blending, packaging and sale of the above
stated controlled substance, including, but not limited to, plastic
packages, paper packets, and scales for weighing, and the like,
firearms and ammunition, papers and effects showing occupancy,
ownership, dominion, or control of said premises, including but not
(continued…)

5

would only authorize a search for marijuana and possibly paraphernalia used in the

consumption of marijuana, not the array of evidence of distribution authorized by

the warrant in this case. The majority entirely overlooks the discrepancy between

the trash-pull evidence and the scope of the issued warrant.

II. PARTIAL SUPPRESSION

To justify the search under this warrant, the majority adopts a doctrine

known as “partial suppression” or “severance.” According to this doctrine, invalid

________________________
(…continued)
limited to rent and property receipts, keys, bills, and cancelled mail
envelopes, and records of drug transactions . . . .

Further, it is highly questionable whether the contraband found in the trash,
without more, could provide probable cause to believe that marijuana would be
found in defendants’ home. The majority is too quick to conclude that simply
because a burnt marijuana cigarette was found in defendants’ trash on one
occasion, there was a “substantial basis” for inferring a “fair probability” that more
marijuana would be found in defendants’ home the next day. All the trash pull
established was that, on one occasion, someone with access to defendants’ trash
discarded a marijuana cigarette in one of their trash bags. One could infer that the
cigarette belonged to defendants, but it certainly could have come from another
source, whether it was a neighbor or passerby disposing his own garbage in
defendants’ trash, or a guest in defendants’ home. After all, the very reason trash
searches without warrants are constitutional is because a person loses his privacy
interest by putting it out for collection, thereby relinquishing control over it. Even
supposing that the marijuana belonged to defendants, a single instance of
marijuana use does not necessarily permit the assumption that marijuana would
likely be present in defendants’ home when the warrant is executed. See, e.g.,
United States v Cunningham, 145 F Supp 2d 964, 967 (ED Wis, 2001) (A trace
amount of cocaine discovered in a garbage search “by itself is insufficient to
establish probable cause that contraband would be found at defendant’s residence.
The presence of cocaine traces in garbage does not necessarily give rise to an
inference that additional drugs are located on the premises. Cocaine traces may be
attributable to one time personal use of drugs by either a resident or a third party.”)

6

portions of a warrant may be severed from valid portions of a warrant; the

evidence obtained pursuant to the invalid portion is suppressed, while the evidence

obtained through the valid portion is admissible. United States v Sells, 463 F3d

1148, 1150 (CA 10, 2006). Whether Michigan should adopt this rule is a discrete

question from whether it should be applied in this case. Unfortunately, in its

eagerness to adopt this rule, the majority neglects crucial safeguards that federal

circuit courts consider before applying the doctrine.4 As one circuit court

explained:

That severance may be appropriate in theory does not mean it
is appropriate in a particular case. The doctrine is not available
where no part of the warrant is sufficiently particularized, where no
portion of the warrant may be meaningfully severed, or where the
sufficiently particularized portions make up only an insignificant or
tangential part of the warrant. [United States v George, 975 F2d 72,
79-80 (CA 2, 1992) (citations omitted).]

4
See United States v Diaz, 841 F2d 1, 4 (CA 1, 1988) (severance is
appropriate “where the bulk of the warrant and records seized are fully supported
by probable cause”); United States v Christine, 687 F2d 749, 754-760 (CA 3,
1982) (severance is inappropriate when valid portions are not “meaningfully
severable” from the warrant, if it would be an abuse of the warrant procedure, or
for a general warrant); United States v Freeman, 685 F2d 942, 952 (CA 5, 1982)
(severance limited to circumstances where “legitimate fourth amendment interests
will not be jeopardized,” not where, for example, “the warrant is generally invalid
but as to some tangential item meets the requirements of probable cause,” or
where the valid items were included as a pretext to support an unlawful search);
United States v Fitzgerald, 724 F2d 633, 636-637 (CA 8, 1983) (permitting
severance absent a showing of pretext or bad faith); United States v Spilotro, 800
F2d 959, 967 (CA 9, 1986) (invalid portion must be “sufficiently separable from
the rest of the warrant to allow severance”); see also Sells, supra at 1158-1159.

7

More pertinent to the case at hand, severance may be improper “if probable cause

existed as to only a few of several items listed . . . .” 2 LaFave, supra, § 3.7(d), p

436 n 214. The majority errs in adopting and applying the severance doctrine

without adequately considering the circumstances of this particular case.

I would not apply the severance doctrine to the warrant involved here. A

number of jurisdictions limit the use of the doctrine to cases in which a significant

portion of the warrant is valid. For example, the Tenth Circuit Court of Appeals

applies the doctrine “only if ‘the valid portions of the warrant [are] sufficiently

particularized, distinguishable from the invalid portions, and make up the greater

part of the warrant.’” Sells, supra at 1151, quoting United States v Naugle, 997

F2d 819, 822 (CA 10, 1993). This warrant was disproportionally invalid. This is

not a case in which the allegedly valid evidence formed the greater part of the

warrant. In fact, evidence of marijuana possession was just one portion of a

warrant that also sought other controlled substances, currency, distribution

paraphernalia (various forms of which were enumerated at length), papers

establishing ownership, and records of drug transactions. It is evident from

considering the warrant as a whole that the purpose of this search was to uncover

evidence of a drug distribution scheme.5 That defendants may have also engaged

5
While disclaiming a “hypertechnical” approach, the majority engages in
just that when it groups the evidence sought under the warrant into three
categories and declares that probable cause existed for two out of three of them.
In fact, several categories of evidence sought by the warrant are unrelated to
marijuana possession: possession of other controlled substances, currency,
(continued…)

8

in personal possession and consumption of marijuana was incidental to the greater

part of the warrant. The majority conflates Sells’s directive that a court should

“evaluate the relative scope and invasiveness of the valid and invalid parts of the

warrant” with the plain view doctrine. Sells, supra at 1160. This approach would

foster abuse of the warrant process, as the police would be encouraged to include

small, numerous items in a warrant simply to ensure that an otherwise invalid

warrant can be salvaged under the severance doctrine. Further, a warrant’s

“scope” and “invasiveness” is not defined merely in terms of the locations that

may be searched. Rather, those terms also encompass the types of evidence

sought. And clearly the types of evidence justified in a search for marijuana

possession make up a lesser portion of the entire types of evidence sought under

this warrant.

Further, the purportedly valid portion of the warrant is not sufficiently

distinguishable from the invalid portions to support severance. In the affidavit, the

trash pull and the anonymous tip were used to support a search for the same

evidence—evidence of marijuana manufacturing and sale. The warrant did not

distinguish between marijuana that was merely in defendants’ possession and

marijuana that was part of the suspected marijuana distribution operation.

________________________
(…continued)

paraphernalia used in the blending, packaging and sale of controlled substances,

and records of drug transactions. The only categories of evidence sought under

the warrant that would be necessary to establish the elements of simple marijuana

possession would be marijuana and evidence of control over the premises.

9

Consequently, the purportedly valid portion of the warrant cannot realistically be

distinguished from the invalid portions. Thus, this warrant is not suitable for

severance.

Additionally, as will be addressed further in part III, there is evidence that

the affiant acted in bad faith. Most jurisdictions consider the presence of bad faith

on the part of the police to preclude the application of the severance doctrine, and I

would do the same.

III. THE GOOD-FAITH EXCEPTION

The good-faith exception to the warrant requirement does not salvage the

constitutionality of the search of defendants’ home. The good-faith exception

provides that when police act in reasonable and good-faith reliance on a search

warrant, the items seized need not be suppressed if the warrant is later declared

invalid. United States v Leon, 468 US 897, 920-921; 104 S Ct 3405; 82 L Ed 2d

677 (1984); People v Goldston, 470 Mich 523, 541; 682 NW2d 479 (2004).

However, the exception does not apply if the issuing magistrate “was misled by

information in an affidavit that the affiant knew was false or would have known

was false except for his reckless disregard of the truth.” Leon, supra at 923, citing

Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978). In

addition, the exception does not apply when the magistrate “wholly abandoned his

judicial role,” when the warrant is facially deficient, or when the affidavit is “‘so

lacking in indicia of probable cause as to render official belief in its existence

10

entirely unreasonable.’” Leon, supra at 923, quoting Brown v Illinois, 422 US

590, 611; 95 S Ct 2254; 45 L Ed 2d 416 (1975).

The good-faith exception fails to apply here on at least two grounds: the

police officers did not act in objectively reasonable reliance on the warrant

because the affidavit plainly did not comply with MCL 780.653, and the affiant

misled the magistrate. To invoke the good-faith exception, the officers must have

reasonably relied on the warrant. Reasonable reliance is gauged by an objective

standard that “requires officers to have a reasonable knowledge of what the law

prohibits.” Leon, supra at 919 n 20, citing United States v Peltier, 422 US 531,

542; 95 S Ct 2313; 45 L Ed 2d 374 (1975). MCL 780.653 requires that affidavits

based on information from an anonymous source include allegations that could

lead the magistrate to conclude that the source spoke with personal knowledge and

either that the source is credible or that the information is reliable.6 The warrant in

6
MCL 780.653 provides in relevant part:

The magistrate’s finding of reasonable or probable cause shall
be based upon all the facts related within the affidavit made before
him or her. The affidavit may be based upon information supplied to
the complainant by a named or unnamed person if the affidavit
contains 1 of the following:

* * *

(b) If the person is unnamed, affirmative allegations from
which the magistrate may conclude that the person spoke with
personal knowledge of the information and either that the unnamed
person is credible or that the information is reliable.

11

this case clearly violated MCL 780.653 because the supporting affidavit was based

on an anonymous tip, yet it contained none of the information required by statute.

It provided no allegations that could support a finding that the source spoke with

personal knowledge of the drug operation. There was no indication that the source

was credible or the information reliable. So the police executing the search did

not act in objectively reasonable reliance on the warrant because its supporting

affidavit plainly did not comply with the statutory requirements of MCL 780.653.

Accordingly, the good-faith exception does not pardon the officers’ execution of

an unconstitutional warrant.

In addition, there is evidence that the affiant intentionally or recklessly

indicated that the anonymous tip had been received directly, rather than through

Crime Stoppers. An appellate court reviews for clear error the finding that an

affidavit in support of a search warrant was misleading because it contained false

statements made knowingly and intentionally or with reckless disregard for their

truth. United States v Henson, 848 F2d 1374, 1381 (CA 6, 1988). Clear error

exists if the reviewing court is left with the “definite and firm conviction that the

trial court made a mistake . . . .” People v Burrell, 417 Mich 439, 449; 339 NW2d

403 (1983). Thus, we must give deference to the decision of the circuit court,

which ruled “that your police department mislead [sic] the magistrate . . . .” The

preliminary examination produced sufficient evidence of misleading and

incomplete statements to conclude that the circuit court did not make a mistake.

The affidavit must include certain indicia of reliability relating to the anonymous

12

source. But not only did the affidavit fail to aver any of these factors, it failed to

disclose that the anonymous tip originated with Crime Stoppers, a reward-based

system, which bears on the source’s credibility.7 Instead, the affidavit implied that

the affiant took the anonymous tip directly.8 The affidavit also omitted reference

to the three occasions on which the police conducted surveillance of defendants’

residence, while at the preliminary hearing the affiant acknowledged that “those

surveillances turned up nothing[.]” In sum, the affidavit misleadingly implied that

the affiant had spoken to the anonymous source directly, which bolstered the

source’s credibility, while two key facts omitted from the affidavit would have

diminished the source’s credibility. The circuit court’s ruling that the affiant

misled the magistrate should remain intact. As such, the good-faith exception to

the warrant requirement would not apply.

Because the search was conducted under a constitutionally invalid warrant

and the good-faith exception does not apply, the proper remedy is to exclude the

evidence discovered in the search. I would uphold the decision of the Court of

Appeals.

7
The Crime Stoppers Alliance operates a toll-free hotline and offers a cash
reward of up to $1,000 to any person providing a tip resulting in a felony arrest.
8
Because we review the circuit court’s finding for clear error, this
interpretation need not be the “only inference” that could be drawn from the
affidavit, as the majority suggests. Ante at 15. The inference that guides us should
be the one drawn by the circuit court. The circuit court heard the testimony of the
affiant, considered the language of the affidavit, and concluded that the officer
misled the magistrate.

13

 IV. THE STATUTORY VIOLATION

Having concluded that the search warrant was constitutionally invalid and

that the evidence seized during the search must be suppressed, there is no need to

address the violation of MCL 780.653 and its proper remedy. Accordingly, I will

not reiterate my discussion of the statutory violation from the preceding section.

However, the majority’s claim that this warrant did not trigger the statutory

requirement that the anonymous source bear indicia of reliability merits a

response.

After concluding that the search was constitutional because the trash pull

alone provided probable cause for the warrant, the majority extends this reasoning

to the statutory violation. According to the majority, the requirements of MCL

780.653 are not implicated at all because the affidavit was not “based upon”

information from the anonymous source, but was instead “based upon” the trash

pull.9 In its reasoning, the majority attaches significance to the state of mind of

the affiant, who stated in the affidavit that “based upon the items found [in the

trash pull],” she had probable cause to believe that evidence of illegal drug activity

would be found.

9
MCL 780.653 provides that an

affidavit may be based upon information supplied to the complainant
by . . . [an] unnamed person if the affidavit contains . . . affirmative
allegations from which the magistrate may conclude that the person
spoke with personal knowledge of the information and either that the
unnamed person is credible or that the information is reliable.

14

 This reasoning overlooks several key facts. It ignores that (1) in addition to

describing the trash pull evidence, the affidavit included a paragraph describing

the information provided by the anonymous source; (2) the information from the

anonymous source was the only evidence indicating a narcotics distribution

operation, the offense for which the warrant was issued; and (3) the subjective

basis of the affiant’s belief does not control the magistrate’s decision. But most

notably, the majority overlooks the introductory language of MCL 780.653, which

provides that “[t]he magistrate’s finding of reasonable or probable cause shall be

based upon all the facts related within the affidavit made before him or her.”10

(Emphasis added.) We cannot isolate a portion of the affidavit presented to the

magistrate and decide that the affidavit was “based upon” only that portion. The

statute instructs that the magistrate’s finding shall be based upon all the facts in

the affidavit, which included the information provided by the unnamed source.

The warrant was still based upon the information provided by the unnamed

source, even if the affidavit contained additional information regarding the trash

pull. The statutory violation was not excused simply because the warrant was also

10
The majority apparently takes the position that although the first and
second sentences of MCL 780.653 both use the phrase “based upon,” the meaning
of this phrase in each sentence is completely independent of the other. But in
interpreting a statute, we must “consider both the plain meaning of the critical
word or phrase as well as ‘its placement and purpose in the statutory scheme.’”
Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999) (citation
omitted). The fact that the first sentence of MCL 780.653 compels the magistrate
to base his finding on all the facts in the affidavit cannot be ignored when reading
the second sentence of the statute.

15

based on the trash pull. If the affidavit had supplied only the trash pull

information, the affidavit would not have supported a warrant to search for

evidence of marijuana distribution, such as scales, plastic bags, firearms, and

currency. So, clearly, the information provided by the anonymous source was an

integral part of the magistrate’s decision to approve a warrant to search for

evidence of distribution.11

The requirements of MCL 780.653 applied to this warrant because the

affidavit was based upon information from an unnamed source. Thus, even if

there were no constitutional violation, defendant would be entitled to a remedy as

a result of the statutory violation.

V. CONCLUSION

I agree with the Court of Appeals holding that the affidavit in support of the

search warrant failed to establish probable cause to search for evidence of

marijuana sale and distribution. I would affirm the order to suppress the evidence

gathered from the search and would remand for further proceedings.

Michael F. Cavanagh
Marilyn Kelly

11
The majority characterizes my position as “whenever an affidavit makes
the slightest reference to information supplied by an informant, the requirements
of MCL 780.653 must be complied with.” Ante at 17 n 44. This generalization
obscures the bottom line, which is that this affidavit was based upon information
from an unnamed source; thus, MCL 780.653 must be complied with.

16