People v. Hellstrom , 264 Mich. App. 187 ( 2004 )

690 N.W.2d 293 (2004) 264 Mich. App. 187

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Thomas Lennart HELLSTROM, Defendant-Appellant.

Docket No. 252984.

Court of Appeals of Michigan.

Submitted August 11, 2004, at Detroit. Decided October 21, 2004, at 9:10 a.m. Released for Publication December 22, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Carl J. Marlinga, Prosecuting Attorney, Robert J. Berlin, Chief Appellate Attorney, and Molly Zappitell, Assistant Prosecuting Attorney, for the people.

Bellanca, Beattie & DeLisle, P.C. (by Frank D. Eaman), Harper Woods, for the defendant.

Before: NEFF, P.J., and SMOLENSKI and ZAHRA, JJ.

SMOLENSKI, J.

Defendant Thomas L. Hellstrom appeals by leave granted the order denying his motion to suppress evidence of child pornography seized from a home computer following the execution of a search warrant. Defendant was charged with four counts of first-degree criminal sexual conduct (CSC I), M.C.L. § 750.520b(1)(a), and four counts of second-degree criminal sexual conduct (CSC II), M.C.L. § 750.520c(1)(a). The instant case gives this Court its first opportunity to determine whether the "good-faith" exception to the exclusionary rule, recently adopted in Michigan,^[1] precludes suppression of evidence found during a search of defendant's home. We find that the circumstances presented here are precisely those to which the exception is meant to apply. Therefore, we affirm the trial court's decision, but for a different reason.

I

In defendant's motion to suppress, he challenged the validity of the search on the grounds that (1) the warrant(s) lacked probable cause and (2) the warrant(s) constituted "general warrants" that allowed the police unfettered discretion to seize evidence. The original search warrant described the property to be searched and seized as follows:

2. The property to be searched for and seized, if found is specifically described as: any and all forms of pornography, to include but not limited to all computer generated images and files, photographs, drawings, videotapes, film, printed materials, any sexually explicit material and devices. also to be included all computers, cd's [sic], dvd's [sic], floppy disc[s] all camera's [sic] and camcorders. Any and all equipment used in the storage, manufacturing, gathering or distribution of sexually explicit material. Further[,] any paperwork to establish ownership or residence of all occupants, and any mailing or billing lists related to pornography.

The affidavit to support the search warrant provided the following facts to establish probable cause:

3. The facts establishing probable cause or the grounds for search are:

a) On 03-05-03[,] Detective Bergeron received two different complaints ... of a criminal sexual conduct against the suspect at 30018 Manhattan, St. Clair Shores, Michigan, 48082.

b) Detective Bergeron has been a police officer for the past 15 years. He is currently assigned to the investigations bureau.

c) The named suspect is a resident of the address in question.

d) There are two different victim's [sic] claiming that they were both sexually assaulted by the same suspect.

e) The victim's [sic] are both neighbor's [sic] to the suspect and have been alone with him at 30018 Manhattan in the past.

f) The search of the above listed premises should help to further this investigation.

g) Based on my experince [sic] as a detective investigating sexual assaults it is known that this activity may also lead to the use of pornography for sexual gratification of the suspect.

h) It is aslo [sic] known that child sexual assault predators are known to have items of sexual gratification inside their homes, computers and other devices.

Several computers, videos, DVDs, CDs, and a camera were seized from defendant's home. However, the original search warrant did not authorize the police to look inside the computers that were taken from defendant's home. An amended search warrant was executed, which modified the type of property to be seized or searched, but did not alter the supporting facts in the affidavit. Subsequently, several images of pornographic material depicting children were found on at least one of the computers seized from defendant's home.

In making its probable-cause determination, the trial court took into consideration the affiant's experience as a police officer that items of a pornographic nature were often found in crimes of this type. The court concluded that there was a more than sufficient nexus between the affidavit, evidence, and area to be searched because (1) defendant lived at the location and (2) the complainants alleged that the offenses occurred at defendant's home. The court also held that the warrant was not overly broad under the circumstances because the electronic equipment and accessories identified to be seized all related to devices capable of recording or storing pornography. Accordingly, the court denied defendant's motion to suppress.

II

It is well settled that both the United States Constitution and the Michigan Constitution^[2] "guarantee the right of persons to be secure against unreasonable searches and seizures." People v. Kazmierczak, 461 Mich. 411, 417, 605 N.W.2d 667 (2000). A search or seizure is considered unreasonable when it is conducted pursuant to an invalid warrant or without a warrant where the police officer's conduct does not fall within one of the specific exceptions to the warrant requirement. Id. at 418, 605 N.W.2d 667. Generally, in order for a search executed pursuant to a warrant to be valid, the warrant must be based on probable cause. Id. at 417, 605 N.W.2d 667. Probable cause "exists where there is a ``substantial basis' for inferring a ``fair probability' that contraband or evidence of a crime will be found in a particular place." Id. at 417-418, 605 N.W.2d 667 (citation omitted). It is also well settled that a search may not stand on a general warrant. People v. Toodle, 155 Mich.App. 539, 548, 400 N.W.2d 670 (1986). A search warrant must particularly describe the place to be searched and the persons or things to be seized. U.S. Const., Am. IV; Const. 1963, art. 1, § 11; M.C.L. § 780.654(1). The purpose of this requirement is to provide reasonable guidance to the officers executing the search with regard to the items to be seized and to prevent unfettered discretion in this determination. People v. Fetterley, 229 Mich.App. 511, 543, 583 N.W.2d 199 (1998).

Ordinarily, if a warrant is determined to be invalid because it lacked a probable-cause basis or was technically deficient in some other manner, any evidence seized pursuant to that warrant, or seized subsequently as a result of the initial illegal search, is inadmissible as substantive evidence in related criminal proceedings. Kazmierczak, supra at 418, 605 N.W.2d 667. Certain exceptions to this exclusionary rule have been recognized in Michigan,^[3] but our courts had declined to recognize a "good-faith" exception to the exclusionary rule. See, e.g., People v. Scherf, 251 Mich.App. 410, 411, 651 N.W.2d 77 (2002), rev'd 468 Mich. 488, 512-513, 668 N.W.2d 602 (2003); People v. Hill, 192 Mich.App. 54, 56, 480 N.W.2d 594 (1991); People v. Tanis, 153 Mich.App. 806, 813, 396 N.W.2d 544 (1986).

A

Such an exception has been recognized in the federal courts for twenty years as a result of the United States Supreme Court's decision in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). The "good-faith" exception renders evidence seized pursuant to an invalid search warrant admissible as substantive evidence in criminal proceedings where the police acted in reasonable reliance on a presumptively valid search warrant that was later declared invalid. Id. at 905, 104 S. Ct. 3405. Recently, relying on the reasoning put forth in the Leon decision, our Supreme Court, in People v. Goldston, 470 Mich. 523, 682 N.W.2d 479 (2004), adopted the good-faith exception to the exclusionary rule.

In Goldston, the defendant was observed impersonating a firefighter allegedly raising money for his colleagues in New York after the September 11, 2001, terrorist attacks. Following a search of his home, the defendant was charged with larceny by false pretenses, two counts of possession of marijuana, possession of a firearm during the attempt or commission of a felony, and felon in possession of a firearm. The defendant filed a motion to suppress evidence, which the trial court granted. "The court ruled that the search warrant affidavit did not connect the place to be searched with defendant and did not state the date that the police observed defendant soliciting money." Id. at 527, 682 N.W.2d 479. Thus, the court concluded that the affidavit did not establish the probable cause necessary to issue a warrant and, accordingly, dismissed all charges against the defendant except the charge of larceny by false pretenses. Id. The Court of Appeals denied leave to appeal, but our Supreme Court granted leave limited to the question whether Michigan should adopt the good-faith exception to the exclusionary rule. People v. Goldston, 467 Mich. 939, 655 N.W.2d 232 (2003).

In addressing the question whether to adopt the good-faith exception in Michigan, our Supreme Court analyzed the Leon decision. In Leon, the Court found that the exclusionary rule was not derived from the text of the Fourth Amendment, but rather was a judicially created remedy. Goldston, supra at 528-529, 682 N.W.2d 479, citing Leon, supra at 906, 104 S. Ct. 3405. Therefore, application of the remedy involved weighing its benefits and costs. Id. at 529, 682 N.W.2d 479. "The primary benefit of the exclusionary rule is that it deters official misconduct by removing incentives to engage in unreasonable searches and seizures." Id. The Court concluded that "``the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.'" Id. at 530, 682 N.W.2d 479, quoting Leon, supra at 922, 104 S. Ct. 3405. Leon further stated:

It is the magistrate's responsibility to determine whether the officer's allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient.... Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. [Leon, supra at 921, 104 S. Ct. 3405.]

The exclusionary rule "cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity." Id. at 919, 104 S. Ct. 3405.

Leon also found that there was no basis for believing that the exclusionary rule had any significant deterrent effect on judges and magistrates with regard to their errors. Goldston, supra at 539-540, 682 N.W.2d 479, citing Leon, supra at 916-917, 104 S. Ct. 3405.

Imposition of the exclusionary sanction is not necessary meaningfully to inform judicial officers of their errors, and we cannot conclude that admitting evidence obtained pursuant to a warrant while at the same time declaring that the warrant was somehow defective will in any way reduce judicial officers' professional incentives to comply with the Fourth Amendment, encourage them to repeat their mistakes, or lead to the granting of all colorable warrant requests. [Leon, supra at 917, 104 S. Ct. 3405.]

After determining that the exclusionary rule was not mandated by the Michigan Constitution, our Supreme Court in Goldston concluded:

Because we find the reasoning of Leon persuasive, we choose to embrace Leon as a matter of our interpretive right under the common law and retreat from the judicially created exclusionary rule announced in Marxhausen. [[^[4]] The goal of the exclusionary rule, as expressed in Leon, is to deter police misconduct. Thus, the goal of the exclusionary rule would not be furthered where police officers act in objectively reasonable good-faith reliance on a search warrant. [Goldston, supra at 538, 682 N.W.2d 479 (citations omitted).]

Accordingly, the Goldston Court held, "Because the exclusionary rule in Michigan is a judicially created, nonbinding rule, we interpret Const. 1963, art. 1, § 11 consistent[ly] with the Leon Court's interpretation of the Fourth Amendment and adopt the good-faith exception to the exclusionary rule in Michigan." Id. at 541, 682 N.W.2d 479. Applying the exception to the facts before it, the Court concluded that the officers' reliance on the search warrant was objectively reasonable and that suppression of the firearm, marijuana, and firefighter paraphernalia seized "would not further the purpose of the exclusionary rule, i.e., to deter police misconduct." Id. at 543, 682 N.W.2d 479. As a result, the lower court's ruling suppressing the evidence was reversed and the original charges were to be reinstated against the defendant on remand.

Therefore, as stated in Leon and adopted by our Supreme Court in Goldston, we are guided by the following principles with regard to application of the good-faith exception to Michigan's exclusionary rule:

We do not suggest [ ] that exclusion is always inappropriate in cases where an officer has obtained a warrant and abided by its terms. "[Searches] pursuant to a warrant will rarely require any deep inquiry into reasonableness," for "a warrant issued by a magistrate normally suffices to establish" that a law enforcement officer has "acted in good faith in conducting the search." Nevertheless, the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.

Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant 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. The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, [99 S. Ct. 2319, 60 L. Ed. 2d 920] (1979);[^[5]] in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.

In so limiting the suppression remedy, we leave untouched the probable-cause standard and the various requirements for a valid warrant. Other objections to the modification of the Fourth Amendment exclusionary rule we consider to be insubstantial. The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. As we have already suggested, the good-faith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time. [Leon, supra at 922-924, 104 S. Ct. 3405 (citations omitted).]

In sum, "In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause." Id. at 926, 104 S. Ct. 3405.

Leon further instructs:

If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good-faith issue. Indeed, it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue. Even if the Fourth Amendment question is not one of broad import, reviewing courts could decide in particular cases that magistrates under their supervision need to be informed of their errors and so evaluate the officers' good faith only after finding a violation.[^[6]] In other circumstances, those courts could reject suppression motions posing no important Fourth Amendment questions by turning immediately to a consideration of the officers' good faith. We have no reason to believe that our Fourth Amendment jurisprudence would suffer by allowing reviewing courts to exercise an informed discretion in making this choice. [Id. at 925, 104 S. Ct. 3405.]

B

Applying these principles to the case before us, we find that the officers conducting the search of defendant's home acted in good-faith reliance on the magistrate's determinations of probable cause and technical sufficiency with regard to the search warrants. The supporting affidavits were not "``so lacking in indicia of probable cause'" that the officers could not objectively believe that the warrant was supported by probable cause. Leon, supra at 923, 104 S. Ct. 3405 (citations omitted); Goldston, supra at 543, 682 N.W.2d 479. And there was no reason to believe the facts alleged in the affidavit were false or that the magistrate was misled by false information. Leon, supra at 923, 104 S. Ct. 3405. Also, although there were no allegations in the affidavit that defendant had videotaped or taken pictures of the complainants, it did assert that the crimes happened in defendant's residence. Given the affiant's knowledge that pedophiles generally possess pornographic images for sexual gratification,^[7] it was entirely reasonable to believe that evidence of a crime would be found in defendant's home, whether it be images taken of the complainants without their knowledge or possession of other material that would constitute child pornography. Michigan's probable-cause standard relates to whether "contraband or evidence of a crime will be found in a particular place." Kazmierczak, supra at 417-418, 605 N.W.2d 667 (emphasis added). It does not require that the evidence sought be particular to the specific offense a defendant is alleged to have committed.

Nor are we convinced that the warrant was so facially deficient that it rendered the officers' reliance wholly unreasonable. The warrant described the items to be seized with sufficient particularity that it was reasonable for the officers to presume that the warrant was facially valid. Leon, supra at 923, 104 S. Ct. 3405. Furthermore, there is no evidence to indicate that the issuing magistrate abandoned his judicial role. Id. Here, we can discern no reason to invoke the extreme sanction of exclusion. Accordingly, we hold that the good-faith exception to the exclusionary rule, as recently recognized in Michigan, is applicable in this case and, therefore, suppression of the evidence on the basis of an allegedly invalid search warrant is not appropriate.^[8] Because we agree with the trial court's ultimate ruling denying defendant's motion to suppress evidence, we affirm its ruling albeit on different grounds.

In responding to the dissent, we note that this case is not so different from Goldston as the dissent suggests. In Goldston, the search warrant was technically deficient and lacked probable cause. The prosecutor conceded on appeal that the search warrant was not based on probable cause. Id. at 542 n. 11, 682 N.W.2d 479. Despite both these problems, the Goldston Court nevertheless found that "[t]he police officers' reliance on the district judge's determination of probable cause and on the technical sufficiency of the search warrant was objectively reasonable." Id. at 542, 682 N.W.2d 479. Specifically, regarding probable cause, the Court stated that "the affidavit was not ``so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" Id. at 543, 682 N.W.2d 479 (citations omitted).

The dissent likens this case to one from the United States Court of Appeals for the Ninth Circuit, United States v. Weber, 923 F.2d 1338, 1346 (C.A.9, 1990), in which the court found that the affidavit was so lacking probable cause that the good-faith exception did not apply. In Weber, the United States Customs Service sent the defendant a fake catalog of child pornography and he ordered four sets of pictures from it. In anticipation of the package's arrival, a customs agent filled out an affidavit in which he stated that the items to be searched for included the four sets of pictures sent to the defendant and all other child pornography. The court found that probable cause existed to search for the pictures the government sent, but there was no reason to believe that the defendant possessed additional pornography.

The defendant in Weber was targeted because two years earlier, a customs inspector had seized two pieces of advertising material addressed to "P. Webber" that he concluded "apparently depicted" child pornography. Id. at 1340 (emphasis in original). A notice of the seizure was sent to the defendant, who acknowledged the receipt of the notice. But the defendant never made any attempt to collect the materials, nor was it ever determined if the defendant had actually ordered the materials or if they were unsolicited advertisements.

Unlike in Weber, where the government had no reason to believe that the defendant possessed additional pornography, the police in this case had reason to believe that the defendant had a sexual interest in young girls because of the two separate complaints of sexual assault made just before the search warrant was executed. Both complainants alleged that defendant had molested them in his home. Assuming that the reports were true, the police could reasonably infer that defendant was a pedophile. Our Supreme Court has recognized that "pornography is used in connection with child molestation, for arousal and fantasy and as a means of lowering the intended victim's inhibitions through peer pressure effects," People v. Russo, 439 Mich. 584, 600, 487 N.W.2d 698 (1992), that "the single most persuasive characteristic of pedophilia is the obsession for, and the collection of, child pornography," id. at 601, 487 N.W.2d 698, citing S. Rep. No. 99-537, 99th Cong. (2nd Sess.), and that pornography of this type is likely to be kept in the home, id. at 612, 487 N.W.2d 698. Being a police officer for fifteen years, the affiant was aware of this connection, and we believe it to be inconsequential that the affiant had specific limited experience in investigating sexual assault crimes. Given that defendant was alleged to have sexually assaulted two young girls, and that those who do so usually possess child pornography in their home, a reasonable inference could be made that defendant would have child pornography in his home. Accordingly, we disagree with the dissent's evaluation of the affidavit and find that it was not so lacking in indicia of probable cause that official reliance on the magistrate's probable-cause determination was unreasonable. Leon, supra at 923, 104 S. Ct. 3405.

Affirmed.

ZAHRA, J., concurred.

NEFF, P.J., (dissenting).

I respectfully dissent. Contrary to the conclusion reached by the majority, I find that the facts of this case do not justify the application of the "good-faith" exception to the exclusionary rule as recently adopted and explained by the Michigan Supreme Court in People v. Goldston, 470 Mich. 523, 682 N.W.2d 479 (2004).^[1]

I agree with the majority's view of the legal principles underlying the good-faith exception, but disagree only with its application of those principles. The Supreme Court's decision in Goldston left unchanged the probable-cause standard and the various requirements for a valid warrant. Ante at 302-303, citing United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). The majority decision all but "turns a blind eye" to these standards.

Although the Goldston decision has ushered in a new era in Michigan law, it is legal terrain well-traveled in federal law since the 1984 United States Supreme Court decision in Leon. My review of this case and examination of similar cases in which the courts have applied Leon leaves no doubt that the affidavit in this case was lacking in probable cause and that the nature of this deficiency rules out a good-faith exception. Accordingly, the trial court should have suppressed the evidence seized in the search of defendant's home.

I

Interpreting the Fourth Amendment of the United States Constitution, the Leon Court adopted a good-faith exception to the exclusionary rule as a remedy for unreasonable searches and seizures. "Under Leon, the exclusionary rule does not bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant ultimately found to have been defective." Goldston, supra at 525-526, 682 N.W.2d 479.

The good-faith exception turns on objective reasonableness: whether the police officers' reliance on the magistrate's determination of probable cause and on the technical sufficiency of the search warrant was objectively reasonable. Goldston, supra at 531, 682 N.W.2d 479; see also ante at 300, quoting Leon, supra at 923-924, 104 S. Ct. 3405. The focus with respect to the affidavit in this case is on probable cause. The standards to be applied are well settled.

"A search warrant may be issued only on a showing of probable cause that is supported by oath or affirmation." People v. Nunez, 242 Mich.App. 610, 612, 619 N.W.2d 550 (2000); Const. 1963, art. 1, § 11. Probable cause exists when a reasonably cautious person would be justified in concluding that evidence of criminal activity could be found in a stated place to be searched. Id. A magistrate must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." People v. Hawkins, 468 Mich. 488, 502 n. 11, 668 N.W.2d 602 (2003), quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). In reviewing a magistrate's decision regarding probable cause, this Court asks whether a reasonable magistrate could have found a "``substantial basis'" to infer that the evidence sought would be found at the place to be searched. People v. Russo, 439 Mich. 584, 603-604, 487 N.W.2d 698 (1992), quoting Gates, supra at 236-238, 103 S. Ct. 2317.

Evidence seized pursuant to an invalid search warrant may nonetheless be admissible if the government acted in good faith in relying on the magistrate's issuance of a warrant for the search. Leon, supra at 920-922, 104 S. Ct. 3405; see also ante at 297; Goldston, supra at 530, 682 N.W.2d 479. The inquiry is "whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, supra at 923 n. 23, 104 S. Ct. 3405. Objective good faith is not manifested if an affidavit is "``so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" Ante at 300, quoting Leon, supra at 923, 104 S. Ct. 3405 (citation omitted). Nor is good faith manifested "if the magistrate or judge in issuing a warrant 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." Id. at 923, 104 S. Ct. 3405.

II

In this case, the affidavit was clearly so lacking in the indicia of probable cause that it rendered official belief in its existence entirely unreasonable. Goldston, supra at 531, 682 N.W.2d 479. Further, the averments with regard to the officer-affiant's experience and expert knowledge, relied on by the trial court, were irrelevant, and while not false per se, were certainly misleading.

A

The affidavit supplied by the officer-affiant, Detective Bergeron, to support the search warrant provided the following statements to establish probable cause:

3. The facts establishing probable cause or the grounds for search are:

a) On 03-05-03 Detective Bergeron received two different complaints (03-4435 and 03-4430) of a criminal sexual conduct against the suspect at 30018 Manhattan, St Clair Shores, Michigan, 48082.

b) Detective Bergeron has been a police officer for the past 15 years. He is currently assigned to the investigation bureau.

c) The named suspect is a resident of the address in question.

d) There are two different victim's [sic] claiming that they were both sexually assaulted by the same suspect.

e) The victim's [sic] are both neighbor's [sic] to the suspect and have been alone with him at 30018 Manhattan in the past.

f) The search of the above listed premises should help to further this investigation.

g) Based on my experince (sic) as a detective investigating sexual assaults it is known that this activity may also lead to the use of pornography for sexual gratification of the suspect.

h) It is aslo (sic) known that child sexual assaultive predators are known to have items of sexual gratification inside their homes, computers and other devices.

The objective shortform version of the facts in the affidavit is essentially: (1) the affiant received criminal sexual conduct complaints from two different persons against the suspect at 30018 Manhattan, where the suspect resides, and (2) the complainants are neighbors and have been alone with the suspect at 30018 Manhattan. These facts do not conceivably justify a reasonably cautious person in concluding that evidence of the pornographic material specified in the affidavit would be found at 30018 Manhattan.

In applying the good-faith exception, the majority places reliance on the experience and knowledge of Detective Bergeron, who signed the affidavit and participated in the search, to support the adequacy of the affidavit and the good faith of the concomitant reliance on the warrant. However, while a magistrate may consider an officer's experience in determining whether probable cause exists, ante at 301 n. 7, the principles to be applied with respect to the good-faith exception are altogether different. This Court's task in applying the good-faith exception rests on the officer's good-faith reliance on the warrant, not the magistrate's determination of probable cause. Properly viewed, Detective Bergeron's experience offers no support for applying the good faith-exception.

Detective Bergeron avers in the affidavit that he has fifteen years experience as a police officer; he is currently assigned to the investigation bureau, and his knowledge concerning the search warrant request is based on his experience as a detective investigating sexual assaults. In fact, Detective's Bergeron's experience was, by his own admissions, almost wholly lacking in any background that would support the claim that he was sufficiently knowledgeable about criminal sexual conduct involving children to reliably swear out the request for the search warrant.

Detective Bergeron testified at the suppression hearing that although he had been a policeman for a number of years, his duties included six months as an undercover officer in high schools, two years in traffic enforcement, eight years as an evidence technician, and four years as a detective. In his capacity as a detective he had investigated very few pedophile criminal sexual conduct cases, testifying about being involved in "A couple. I haven't done very many.... [M]y forte is more home invasion." He further testified about having investigated no case involving pedophilia in which he was the officer in charge and that he had "[v]ery little" training related to "children CSC [sic]." He was even uncertain whether some or all pornography is illegal to possess and testified that "I'm not the CSC expert."^[2]

Therefore, when Detective Bergeron stated in the affidavit in support of his search warrant request that "g) Based on my experince (sic) as a detective investigating sexual assaults it is known that this activity may also lead to the use of pornography for sexual gratification of the suspect" (emphasis added) and "h) It is aslo (sic) known that child sexual assaultive predators are known to have items of sexual gratification inside their homes, computers and other devices," his statements were almost completely without substantive basis. Any reliance by this Court on Detective Bergeron's experience is completely unjustified in deciding the good-faith issue. Pursuant to Leon, supra at 923 n. 24, 104 S. Ct. 3405, we must review the objective reasonableness of the officers who obtained the warrant as well as those who executed it, so the reliance on Detective Bergeron's experience was particularly unjustified because he typed and signed the affidavit and participated in executing the warrant.^[3]

The only remaining averment in the affidavit is that "the search of the above listed premises should help to further this investigation." A finding of probable cause or good-faith reliance is not conceivably supported by a statement that the search "should help to further this investigation." Again, the relevant evidence at the suppression hearing supports a contrary finding.

There is no indication in the affidavit or elsewhere in this record that the complainants claimed that defendant photographed or videotaped them or showed them sexually suggestive materials or items. Detective Bergeron could not have harbored an objectively reasonable belief in the existence of probable cause in this case.

B

The circumstances in Goldston and those in this case are at opposite ends of the Fourth Amendment spectrum. In Goldston, the Supreme Court applied the good-faith exception to circumstances of a technical deficiency in the warrant resulting in an invalid warrant: the warrant failed to connect the place to be searched with the defendant and did not state the date that the police observed the defendant soliciting money. Goldston, supra at 527, 682 N.W.2d 479. In this case, the question is whether there was probable cause to issue the warrant.

This case more closely parallels United States v. Weber, 923 F.2d 1338, 1346 (C.A.9, 1990), in which the United States Court of Appeals for the Ninth Circuit applied Leon to conclude that the warrant, obtained on the basis of foundationless expert testimony of pornography, lacked probable cause and did not justify application of the good-faith exception. In Weber, officers targeted the defendant for investigation of child pornography after he ordered four sets of pictures depicting children engaged in "sex action" as part of a reverse sting operation by law enforcement. Id. at 1340. The affiant-officer sought a warrant to search the defendant's home on the basis of the sting information, a statement that a package of pornographic materials was sent to the defendant's house almost two years earlier, and a general description of the proclivities of pedophiles, which was based on the affiant-officer's experience and training in child pornography investigations and his discussion with other law enforcement agents. The affidavit contained a lengthy, several-page recitation of expert knowledge of another officer regarding "child molesters," "pedophiles," and "child pornography collectors." Id. at 1341. Of significance was the fact that nowhere in the affidavit was there even a conclusory recital that evidence of the defendant's interest in child pornography, evidenced by his picture order, placed him in the categories of pedophiles, molesters, and collectors discussed in the affidavit. The court concluded that the "expert" portion of the affidavit was not drafted with the facts of the case or the particular defendant in mind. Id. at 1345. Particularly relevant to this case, the court observed:

It is well established that expert opinion may be presented in a search warrant affidavit. But if the government presents expert opinion about the behavior of a particular class of persons, for the opinion to have any relevance, the affidavit must lay a foundation which shows that the person subject to the search is a member of the class. [Id. (citation omitted).]

The Weber Court distinguished United States v. Rabe, 848 F.2d 994 (C.A.9, 1988), another pornography case relying on expert opinion, on three grounds:

First, in Rabe there was concrete evidence that the defendant had pornography in his home shortly before the warrant was executed. Id. [at 995.] Second, there was expert testimony in the affidavit which addressed the facts of the defendant's case and specifically concluded that based on those facts, the defendant was a pedophile. Id. at 996. Finally, not only did the expert review the defendant's file, but there was enough information to make a judgment as to whether the defendant fit the profile of a "pedophile." The defendant's admitted collection of child pornography and his desire to take photographs were known to the expert and the magistrate before the warrant issued. [Weber, supra at 1345-1346.]

In this case, as in Weber, there was absolutely nothing linking Detective Bergeron's claimed expertise to defendant or defendant's alleged criminal activity. Detective Bergeron's expertise, even if valid, was irrelevant to this case. As the court aptly concluded in Weber, supra at 1346:

The foundationless expert testimony may have added fat to the affidavit, but certainly no muscle. Stripped of the fat, it was the kind of "bare bones" affidavit that is deficient under Leon [supra at 926, 104 S. Ct. 3405]."

III

The majority has deserted the context of Goldston and the good-faith exception to an invalid search warrant. In adopting the good-faith exception, the Goldston majority could not have intended to turn a blind eye to the principles on which the exception is based. Otherwise, the Goldston reasoning would be for naught.

In Goldston, the Supreme Court acknowledged the Leon Court's recognition that application of the good-faith rule was not without limitation. Goldston, supra at 550, 682 N.W.2d 479. In this regard, the Leon Court stated that it was not suggesting that "exclusion is always inappropriate" where an officer obtains and relies on a warrant. Leon, supra at 922, 104 S. Ct. 3405. Accordingly, suppression remains an appropriate remedy if an officer fails to manifest good faith and "relies on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Goldston, supra at 531, 682 N.W.2d 479, quoting Leon, supra at 923, 104 S. Ct. 3405 (citation and quotation marks omitted). The affidavit in this case contains an entirely superficial recitation of probable cause, and "a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, supra at 923 n. 23, 104 S. Ct. 3405.

The majority decision violates the purpose of the good-faith exception and is contrary to long-established precedent for its application. The decision turns the good-faith exception into a carte blanche exception to an invalid search warrant, as long as the affidavit contains some "fat." Under the majority's reasoning and contrary to Leon, the magistrate and the courts become nothing more than a rubber stamp for the police. The majority decision eviscerates any necessary foundation for applying the good-faith exception because no reasoned application remains. For these reasons, I would reverse.

IV

The majority response to the dissent misses the point. Statistical inference alone cannot be a basis of probable cause. There must be some connection to the suspect. That is the point in Weber. The expert information in the affidavit must relate to the criminal suspect. If pedophilia is alleged, there must be evidence of pedophilia. If child pornography is alleged, there must be evidence of child pornography.

This case involves no allegations of any conduct involving child pornography or pedophilia. See Russo, supra at 599 n. 24, 487 N.W.2d 698 (defining "pedophile"). So the quotations from Russo are irrelevant. That pedophilia or child pornography activity was involved in Russo, was a foregone conclusion. The affidavit contained ample allegations of such activity:

[T]he victim reported that, while between the ages of five and ten years old, she had been sexually abused by the defendant at his home every other weekend over a four-year period, beginning in the fall of 1978 and ending in August, 1982; the victim described being photographed by the defendant "naked or in various stages of undress" and having been videotaped alone or with the defendant involved in sexual activity; and she reported being shown the photographs and videotapes numerous times by the defendant during her visits to his home, and that she was familiar with the different locations within the home where the defendant stored the material and his method of securing the piles of photographic material with "string or rubber bands." [Russo, supra at 598, 487 N.W.2d 698 (emphasis added).]

The key issue in Russo was the staleness of that information. Unlike the majority in this case, the Supreme Court was careful to state what Russo did not stand for:

This is not a situation in which the government claims that simply because a person has indicated interest in possessing pornographic material he is likely to be in present possession of it. United States v. Weber, 915 F.2d 1282 (C.A.9, 1990). Nor is this a situation in which the government seeks a search warrant on the basis of a single incident of photographing child victims. State v. Woodcock [407 N.W.2d 603 (Iowa, 1987)]. Most importantly, this is not a situation in which the government claims the right to invade the sanctity of the home on the basis of a profile that suggests: once a collector of child pornography, always a possessor. Washington v. Smith, 60 Wash.App. 592, 805 P.2d 256 (1991), lv. den. 116 Wash.2d 1031 [813 P.2d 582] (1991).

We hold only that where suspicion of criminal activity has focused on a specific individual by a standard more probable than not, and it is alleged that the evidence sought was created, retained, and employed in ongoing criminal activity over a four-year period, the magistrate could reasonably conclude that there was a "fair probability" that the evidence would be retained in the residence of the accused. [Russo, supra at 613-614, 487 N.W.2d 698.]

The majority's use of quotations from Russo to establish probable cause in this case amounts to a profile search, clearly not sanctioned by the Russo Court.

NOTES

[1] People v. Goldston, 470 Mich. 523, 682 N.W.2d 479 (2004).

[2] U.S. Const., Am. IV; Const. 1963, art. 1, § 11.

[3] These exceptions are (1) the independent source exception, (2) the attenuation exception, and (3) the inevitable discovery exception. People v. Stevens (After Remand), 460 Mich. 626, 636, 597 N.W.2d 53 (1999), quoting People v. LoCicero (After Remand), 453 Mich. 496, 508-509, 556 N.W.2d 498 (1996).

[4] People v. Marxhausen, 204 Mich. 559, 171 N.W. 557 (1919).

[5] In Lo-Ji Sales, the local justice wholly abdicated his duty as a "detached and neutral magistrate" when he assisted in the search himself, and abandoned his judicial role when he authorized a search warrant that, except for specification of copies of two "adult" films previously purchased by an investigator, did not particularly describe the items to be seized, but, instead, left it entirely to the discretion of the officials conducting the search to decide which items were likely to be obscene and thus subject to seizure. Id. at 325, 327-328, 99 S. Ct. 2319.

[6] In this regard, we note that the good-faith exception to the exclusionary rule does not change the reviewing court's standard for determining whether a search warrant is invalid. Leon, supra at 923, 104 S. Ct. 3405. Appellate scrutiny of a magistrate's decision "requires the reviewing court to ask 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 N.W.2d 698 (1992). A trial court's factual findings are reviewed on appeal for clear error. Stevens (After Remand), supra at 631, 597 N.W.2d 53. To the extent the court's ruling on a motion to suppress "involves an interpretation of the law or the application of a constitutional standard to uncontested facts," appellate review is de novo. People v. Attebury, 463 Mich. 662, 668, 624 N.W.2d 912 (2001).

[7] People v. Darwich, 226 Mich.App. 635, 639, 575 N.W.2d 44 (1997) (An affiant's representations based on his experience can be considered in determining whether probable cause exists.).

[8] We note that our ruling does not address whether the evidence requires suppression on other grounds. That is a separate issue that is not before us and may be raised by defendant before the trial court.

[1] The prosecution did not raise the good-faith argument below in arguing the probable-cause issue and it was not addressed by the trial court. The prosecution raises the good-faith exception for the first time on appeal.

[2] At one point Officer Bergeron testified about his belief that all pornography used for sexual gratification is illegal to possess.

[3] The manner of the execution of this warrant, while not necessarily germane to the probable-cause issue, is also of concern to me. The affidavit signed by Detective Bergeron states that two complaints were received on March 5, 2003, the day before the warrant was issued. The search took place in the middle of the night, about 1 a.m., with "six or seven" officers participating. The defendant and his family were roused from bed and their home searched over the course of the next two or more hours. The only explanation for the execution of the warrant at that hour was that was when the "paperwork" was completed. There was no claim of a concern that evidence was in danger of destruction or being hidden. After all, as far as the officers knew, defendant did not even know he was a suspect in a criminal investigation and the officers were proceeding on mere speculation that there was some evidence of some crime to be found. Detective Bergeron stated that he intended to seize anything he could get his hands on that related to this case that could possibly have physical evidence to further the case. The seizure included personal computers allegedly belonging to defendant's two nineteen-year-old sons.