People of Michigan v. Lorenzo Warren Jamison ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 26, 2018
Plaintiff-Appellant,
v No. 336124
Wayne Circuit Court
JEREMY LOREN JAMISON, LC No. 16-003501-02-FH
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 336143
Wayne Circuit Court
CLIFFORD LORENZO JOHNSON, LC No. 16-003501-01-FH
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 336154
Wayne Circuit Court
LORENZO WARREN JAMISON, LC No. 16-003501-03-FH
Defendant-Appellee.
Before: BOONSTRA, P.J., and BECKERING and RONAYNE KRAUSE, JJ.
PER CURIAM.
In this consolidated appeal, the prosecution appeals as of right the circuit court’s orders
of dismissal without prejudice. All three defendants were charged with possession with intent to
deliver 450 grams or more but less than 1,000 grams of cocaine, MCL 333.7401(2)(a)(ii),
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possession with intent to deliver 50 grams or more but less than 450 grams of heroin, MCL
333.7401(2)(a)(iii), possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), and
carrying a firearm during the commission of a felony (felony-firearm), MCL 722.227(b).
Defendants filed a joint motion to suppress the evidence obtained pursuant to the execution of a
search warrant. The court granted the motion, and quashed the search warrant. Thereafter, the
trial court granted defendants’ motion to dismiss their respective cases, and it entered three
orders of dismissal. On appeal, the prosecution argues that the trial court erred in quashing the
search warrant and suppressing the evidence because probable cause existed to issue the search
warrant, and in the alternative, the good faith exception to the exclusionary rule applies. We find
the affidavit sufficient on its face and therefore decline to consider the good-faith exception. We
reverse and remand for further proceedings.
The United States Constitution provides that “no Warrants shall issue, but 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. The Michigan Constitution also
provides, “No 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. A magistrate may only issue a search warrant when “‘there is a fair probability that
contraband or evidence of a crime will be found in a particular place.’” People v Franklin, 500
Mich. 92, 100; 894 NW2d 561 (2017), quoting Illinois v Gates, 462 U.S. 213, 238; 103 S. Ct. 2317;
76 L. Ed. 2d 527 (1983). This Court reviews a trial court’s ruling at a suppression hearing de
novo. People v Galloway, 259 Mich. App. 634, 638; 675 NW2d 883 (2003). Our review of a
magistrate’s decision whether to issue a warrant upon finding that an affidavit establishes
probable cause, however, “involves neither de novo review nor application of an abuse of
discretion standard,” but rather asks “only whether a reasonably cautious person could have
concluded that there was a ‘substantial basis’ for the finding of probable cause.” People v Russo,
439 Mich. 584, 603; 487 NW2d 698 (1992). “[A] search warrant and the underlying affidavit are
to be read in a common-sense and realistic manner.” Id. at 604.
This Court focuses on the facts and circumstances supporting the magistrate’s
determination of probable cause when reviewing the issuance of a search warrant. People v
Martin, 271 Mich. App. 280, 298; 721 NW2d 815 (2006). The affidavit for the search warrant
must include facts that are within the affiant’s knowledge, rather than mere conclusions or
beliefs. Id. “The affiant may not draw his or her own inferences, but rather must state matters
that justify the drawing of them.” Id. However, an affiant’s personal experience is relevant to
the establishment of probable cause. People v Waclawski, 286 Mich. App. 634, 698; 780 NW2d
321 (2009). It is presumed that affidavits supporting search warrants are valid. People v Mullen,
282 Mich. App. 14, 23; 762 NW2d 170 (2008). When reviewing an affidavit, this Court must
read it in a “‘common sense and realistic manner,’ not a crabbed or hypertechnical manner.” Id.
at 27 (quotation omitted).
Probable cause for issuance of a search warrant may be based on hearsay. MCL 780.653;
People v Harris, 191 Mich. App. 422, 425; 479 NW2d 6 (1991). When hearsay is the basis for
probable cause, the magistrate must determine whether all of the information provided in the
affidavit establishes a fair probability that contraband or evidence of a crime will be located in a
particular place. Gates, 462 U.S. at 238-239. MCL 780.653 provides:
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The judge or district court 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 [one] of the
following:
(a) If the person is named, affirmative allegations from which the judge or
district court magistrate may conclude that the person spoke with personal
knowledge of the information.
(b) If the person is unnamed, affirmative allegations from which the judge
or district 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.
“The personal knowledge element should be derived from the information provided or material
facts, not merely a recitation of the informant’s having personal knowledge. If personal
knowledge can be inferred from the stated facts, that is sufficient to find that the informant spoke
with personal knowledge.” People v Stumpf, 196 Mich. App. 218, 223; 492 NW2d 795 (1992)
(citations omitted). An independent investigation conducted by the police that verifies the
accuracy and reliability of the information provided by an informant supports the issuance of a
search warrant. Waclawski, 286 Mich. App. at 699, quoting People v Sellars, 153 Mich. App. 22,
27; 394 NW2d 133 (1986).
The affidavit is six substantive paragraphs in length. The first describes the affiant’s,
Officer Mosley’s, experience and training relevant to narcotics-related law enforcement. The
second is somewhat jumbled but states that Officer Mosley received information from an
unnamed confidential informant that heroin or cocaine was being stored and sold from a house at
a particular address that the informant “witnessed for themselves [sic],” and that “the described
seller has sold narcotics from the location for a while now, and that he only sells to people that
he know [sic].” The informant was noted as being “very reliable” and having provided accurate
information in the past. The remainder of the second, the third, and the fourth paragraphs all
described surveillance Officer Mosley conducted of the house, and activity he saw there. The
fifth paragraph stated that on the basis of prior investigations, the activity observed was
consistent with and diagnostic of narcotics trafficking. The sixth paragraph noted that defendant
Johnson, the observed seller, had prior felony drug arrests, and that the informant stated that
Johnson also supplied drugs to another location that had been raided and found to have drugs and
weapons on site.
As an initial matter, the trial court expressed concern that Officer Mosley “conveniently”
left out the fact that Johnson’s prior arrests resulted in findings of not guilty. At oral argument, it
was noted that Officer Mosley may not have known, and indeed may not even have been able to
find out, about the eventual outcome of those arrests. Because we find the rest of the affidavit
sufficient on its face without any mention of prior arrests, we decline to address this concern.
This statement was not “necessary to a finding of probable cause,” and therefore defendants are
not entitled to a remand for a hearing pursuant to Franks v Delaware, 438 U.S. 154; 98 S. Ct. 2674;
57 L. Ed. 2d 667 (1978). Franklin, 500 Mich. at 94-95. Secondly, the trial court read far too much
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into the fact that Officer Mosley’s affidavit, peppered with the occasional spelling error or
dubious grammar, reads like it was written by an ordinary layperson rather than like a Blackstone
treatise. The purpose of the affidavit was to communicate knowledge, and none of its technical
deficiencies are serious enough to impede that purpose. To reiterate, affidavits are to be read in a
common-sense manner with the understanding that they are written by laypersons.
The trial court noted that the informant did not specify when his or her observations were
made. Staleness, or the passage of time, is a factor to weigh in determining whether probable
cause exists. People v Brown, 279 Mich. App. 116, 128; 755 NW2d 664 (2008). However, the
age of the information alone is not determinative of probable cause. Stumpf, 196 Mich. App. at
226. It must be evaluated as part of the circumstances of the case, including whether the crime is
a singular occurrence or pattern, whether ongoing violations are occurring, the nature of the
evidence to be seized, the nature of the place to be searched, and the nature of the crime. Brown,
279 Mich. App. at 128; Stumpf, 196 Mich. App. at 226. The informant’s statement that the seller
had been trafficking drugs from this location “for a while now” indicates that it had happened in
the past, and it was currently ongoing. The informant’s assertion that the seller “only sells to
people that he know[s]” also indicates that the seller was currently engaged in drug trafficking.
A plain reading of this sentence does not indicate that the timeliness of the informant’s
information is too stale to be a basis for finding probable cause. Furthermore, Officer Mosley
personally confirmed that activities were presently ongoing that significantly corroborated the
informant’s observations and that the drug trafficking was presently ongoing.
Several of the reasons that the trial court provided in finding a lack of probable cause
concerned the failure to meet the requirements in MCL 780.653(b) for a confidential informant.
Pursuant to MCL 780.653(b), the information provided by an informant must be made with
personal knowledge, and the unnamed person must be credible or the information reliable. “The
personal knowledge element should be derived from the information provided or material facts,
not merely a recitation of the informant’s having personal knowledge [ . . . ] If personal
knowledge can be inferred from the stated facts, that is sufficient to find that the informant spoke
with personal knowledge.” Stumpf, 196 Mich. App. at 223. The purpose of this requirement is
“to eliminate the use of rumors or reputations.” Id. Thus, the affidavit as a whole must show
that the informant did not merely believe that criminal activity was occurring or rely on his or
her own inferences, but rather must state what the informant actually observed; and other facts
elsewhere in the affidavit may be used to establish whether the informant spoke with personal
knowledge. People v Rosborough, 387 Mich. 183, 197-200; 195 NW2d 255 (1972). Independent
police investigations that verify the accuracy and reliability of informant information support a
finding of probable cause. Waclawski, 286 Mich. App. at 699.
The affidavit, as noted, provided that the informant had personally witnessed the sale of
narcotics at the house, rather than merely believing that such sales were occurring.
Consequently, the informant did have personal knowledge. Officer Mosley performed
surveillance of the house on three separate days. While admittedly each surveillance was only
for 30 to 60 minutes, within each short period of time, Officer Mosley observed several
individuals arrive at the home, enter through the same side door, and leave shortly after. Officer
Mosley began the affidavit by providing his training and experience with law enforcement,
specifically in the area of narcotics trafficking. Officer Mosley relied on his own experience by
noting twice that individuals involved in narcotics trafficking typically only sell to other people
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that they know as to avoid police detection. Officer Mosley also asserted that he previously
observed activity similar to that which he saw during the three days of surveillance, and such
activity led to the seizure of evidence related to narcotics trafficking. Officer Mosley’s personal
experience was relevant to a finding a probable cause. Waclawski, 286 Mich. App. at 698.
Furthermore, Officer Mosley’s observations, especially filtered through his experience,
adequately corroborated the reliability of the informant’s knowledge.
The trial court’s concern that no stops were made of the individuals and no trash pulls
were performed is irrelevant: it is always possible to do more, but the question is whether
Officer Mosley did enough. The informant asserted that drug trafficking occurred at this
location, and Officer Mosley observed activity indicative of drug trafficking, based on his
training and prior experience in the field. Where an affiant conducts an independent
investigation corroborating evidence and substantially verifying information supplied by the
informant, and the police have previously used information provided by this informant in other
warrants with successful results, a magistrate can conclude that an informant is credible and
reliable. Stumpf, 196 Mich. App. at 223.
The affidavit provided that the informant asserted that the “seller” also supplied narcotics
to another address, and that a raid of that location resulted in the confiscation of cocaine and a
weapon, and one felony arrest. The trial court stated, “There is absolutely no information
furnished as to when this raid took place or that [defendant Clifford Lorenzo] Johnson was
allegedly involved, so that it would have any nexus with the observations conducted by the
police officer . . . ” It appears that Officer Mosley included this information in the affidavit to
bolster the credibility of the informant, and the reliability of the information. The informant
asserted that drug trafficking also occurred at the other location by the same seller, and Officer
Mosley affirmed this information by discovering that a raid was conducted, leading to the
discovery of evidence and an arrest. Although the trial court stated that there was no information
that Johnson was involved, the informant provided that Johnson also supplied drugs to this
location. Regardless, removal of this sentence from the affidavit would still provide the requisite
evidence that the informant was credible, and the information was reliable, as explained above.
We find that the affidavit, read as a whole minus the sixth paragraph with a mind toward
common sense rather than hypertechnicality, adequately establishes “a ‘substantial basis’ for the
finding of probable cause.” Russo, 439 Mich. at 603-604. Because the affidavit clearly
establishes probable cause even without the sixth paragraph, we decline to consider either the
good-faith exception or whether Officer Mosley committed any improprieties in that paragraph,
because both issues are moot. The trial court erred in quashing the warrant, and defendants are
not entitled to a Franks hearing.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ Mark T. Boonstra
/s/ Jane M. Beckering
/s/ Amy Ronayne Krause
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