People v. Whitfield , 461 Mich. 441 ( 2000 )

Per Curiam.

The defendant was charged with possessing less than 25 grams of heroin. The trial court suppressed the evidence against him and dismissed the prosecution on the ground that a search warrant had been based on “[m]ere suspicion,” instead of probable cause. The Court of Appeals affirmed. We find that the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing, and we therefore reverse the judgments of the Court of Appeals and the trial court.

i

On July 10, 1997, a district court magistrate issued a warrant authorizing the search of a home at 18072 Bloom in the city of Detroit. Applying for the warrant, the police had submitted an affidavit that included these paragraphs:

1) Affiant is a sworn member of the Detroit Police Department Narcotic Division and as such was assigned to investigate a narcotic complaint at [18072 Bloom].

2) On July 09, 1997, Affiant who is assigned to the Detroit Police Narcotic Division attempted a purchase of narcotics from 18072 Bloom. The above described seller asked the Affiant what the Affiant wanted, Affiant replied “one” meaning one (1) pack of heroin. The above described seller produced from his right front pocket a large bundle of blue folded small coin envelopes wrapped in rubber-bands. The seller looked at Affiant and asked Affiant who did Affiant know. Affiant was unable to convince the seller to sell illegal narcotics. The described seller stated come back with someone I know and I’ll take care of you.

3) Affiant has participated in over 100 Narcotics Raids in the City of Detroit, and an overwhelming majority of these raids, illegal firearms were found and confiscated, these weapons were used to protect the illegal drug trade. Affiant has seen heroin in such coin envelopes on numerous occasions, and is very familiar with the appearance of heroin an [sic] its packaging.

4) Therefore affiant has probable cause to believe that the above mentioned articles will be found on the aforementioned premises and due to the affiants experience as a narcotics officer, there will be guns on the premises for the protection of the seller.

On the basis of evidence produced during the search, the defendant was charged with possession of less than twenty-five grams of heroin. MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v). He waived a preliminary examination.

In the trial court, the defendant filed a motion to suppress, arguing that the affidavit did not provide a sufficient basis for issuance of the warrant. At the conclusion of a brief hearing, the trial court granted the motion:

Let me just say that I have read the affidavit, and signed by the magistrate.

And I understand based on the case law that I’ve read, that you need probable cause and facts and circumstances that lead a prudent person to believe that it is contraband.

Mere suspicion, conclusion, cannot support the issuance of a warrant.

The affidavit itself says an attempt.

The Court is not convinced that there was probable cause in this case for the issuance of the warrant in this case.

Based on my reading and understanding of the law, the Court will therefore suppress the evidence seized in this case as it relates to Mr. Thomas J. Whitfield.

The trial court entered an order suppressing the evidence and, on its own motion, a second order dismissing the case.

The prosecutor appealed, but the Court of Appeals affirmed.¹ The Court explained:

A search warrant should be upheld if a substantial basis exists to conclude that there is a fair probability that the items sought will be found in the stated place. People v Russo, 439 Mich 584, 604; 487 NW2d 698 (1992); People v Head, 211 Mich App 205, 208; 535 NW2d 563 (1995). The reviewing court should ask whether a reasonably cautious person could have concluded that there was a substantial basis for the finding of probable cause. Head, supra at 209. The underlying affidavit must be read in a common sense and realistic manner, and the trial court’s findings of fact are reviewed for clear error. Id.

The trial court did not err in granting the motion to suppress. Unlike Head, supra, there was no evidence of other drug transactions here. The officer did not see actual drugs; he saw coin envelopes which are often used to hold drugs. The prosecutor conceded that these envelopes could also have a legitimate use. A reasonable person could conclude that the officer’s suspicion was insufficient to establish probable cause. Head, supra.

We granted the prosecutor’s application for leave to appeal. 459 Mich 991 (1999).

n

In the present case, the heart of the disputed affidavit is this description of an exchange between the police officer and the apparent seller:

On July 09, 1997, Affiant who is assigned to the Detroit Police Narcotic Division attempted a purchase of narcotics from 18072 Bloom. The above described seller asked the Affiant what the Affiant wanted, Affiant replied “one” meaning one (1) pack of heroin. The above described seller produced from his right front pocket a large bundle of blue folded small coin envelopes wrapped in rubberbands. The seller looked at Affiant and asked Affiant who did Affiant know. Affiant was unable to convince the seller to sell illegal narcotics. The described seller stated come back with someone I know and I’ll take care of you.

To provide adequate support for a warrant, the affidavit need not prove anything. As we explained in People v Russo, supra at 603-604:

[A]ppellate scrutiny of a magistrate’s decision involves neither de novo review nor application of an abuse of discretion standard. Rather, the preference for warrants set forth in [Illinois v Gates, 462 US 213; 103 S Ct 2317; 76 L Ed 2d 527 (1983)], United States v Ventresca, 380 US 102; 85 S Ct 741; 13 L Ed 2d 684 (1965), and Brinegar v United States, 338 US 160; 69 S Ct 1302; 93 L Ed 1879 (1949), 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. In Gates at 236-237, the Court held:

“[W]e have repeatedly said that 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.’ ‘A grudging or negative attitude by reviewing courts toward warrants,’ is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; ‘courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner.’

“. . . [T]he traditional standard for review of an issuing magistrate’s probable-cause determination has been that so long as the magistrate had a ‘substantial basis for . . . conclud[ing]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. We think reaffirmation of this standard better serves the purpose of encouraging recourse to the warrant procedure and is more consistent with our traditional deference to the probable-cause determinations of magistrates than is the ‘two-pronged test.’ ” [Citations omitted.]

In sum, a search warrant and the underlying affidavit are to be read in a common-sense and realistic manner. Affording deference to the magistrate’s decision simply requires that reviewing courts ensure that there is a substantial basis for the magistrate’s conclusion that there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” [Gates, supra at 238.]

In the present case, a person asked the police officer what the officer wanted. The officer replied “one,” without further elaboration. The person then produced a large bundle of envelopes of the sort that are used for packaging heroin.² However, the person declined to complete the transaction, apparently because the officer was unable to name a common acquaintance. However, the person added that he would be willing to “take care of” the officer, if the officer could return in the company of someone known to the person.

Considering these facts “in a common-sense and realistic manner,” 439 Mich 604, we are certain that the magistrate had a substantial basis for finding probable cause to issue the search warrant because there was a “fair probability that contraband or evidence of a crime [would] be found [at the home where this conversation took place].” 462 US 238. The display of envelopes in response to the officer’s inquiry regarding heroin, coupled with the officer’s statement that he had participated in over one hundred narcotics raids and had “seen heroin in such coin envelopes on numerous occasions, and is very familiar with the appearance of heroin an[d] its packaging,” suggests that the envelopes did, in fact, contain narcotics. Although the person would not complete the sale, he effectively promised to sell to the officer in the future, contingent on the officer returning with someone familiar to him. Accordingly, giving due deference to the decision of the magistrate, which both the trial court and the Court of Appeals failed to do, we are satisfied that he did not err in issuing this search warrant.

For these reasons, we reverse the judgments of the Court of Appeals and the trial court, and we remand this case to the trial court for further proceedings.

Weaver, C.J., and Taylor, Corrigan, Young, and Markman, JJ., concurred.

1 Unpublished memorandum opinion, issued September 25, 1998, reh den December 21, 1998 (Docket No. 207229).

2 The envelopes are often referred to as “coin envelopes.” However, a review of the case law concerning heroin prosecutions reveals that these items could just as easily be called “drug envelopes” or even “heroin envelopes.” People v Justice (After Remand), 454 Mich 334, 350, 352; 562 NW2d 652 (1997); People v Shabaz, 424 Mich 42, 50; 378 NW2d 451 (1985), cert gtd 475 US 1094; 106 S Ct 1489; 89 L Ed 2d 891 (1986), cert vacated 478 US 1017; 106 S Ct 3326; 92 L Ed 2d 733 (1986); People v Talley, 410 Mich 378, 383, 388; 301 NW2d 809 (1981), partially overruled on other grounds People v Kaufman, 457 Mich 266, 276; 577 NW2d 466 (1998); People v Wright, 408 Mich 1, 16; 289 NW2d 1 (1980); People v Collier, 183 Mich App 473, 475; 455 NW2d 313 (1989); In re Forfeiture of $53, 178 Mich App 480, 483; 444 NW2d 182 (1989); People v Stewart, 166 Mich App 263, 265; 420 NW2d 180 (1988); People v Russell, 152 Mich App 537, 539-542; 394 NW2d 9 (1986); Wayne Co Prosecutor v Recorder’s Court Judge, 149 Mich App 183, 185; 385 NW2d 652 (1986); People v Johnson, 146 Mich App 705, 707; 381 NW2d 791 (1985), lv gtd 425 Mich 872 (1986), lv improvidently gtd and lv den 428 Mich 903 (1987); People v Alfafara, 140 Mich App 551, 557; 364 NW2d 743 (1985); People v Fowlkes, 130 Mich App 828, 831, 834-835; 345 NW2d 629 (1983); People v Porterfield, 128 Mich App 35, 38-39; 339 NW2d 683 (1983); People v Miller (On Remand), 128 Mich App 298, 301; 340 NW2d 858 (1983); People v Hudgins, 125 Mich App 140, 143, 148; 336 NW2d 241 (1983); People v Key, 121 Mich App 168, 171, 179; 328 NW2d 609 (1982); Wayne Co Prosecutor v Recorder’s Court Judge, 119 Mich App 159, 161, 163; 326 NW2d 825 (1982); People v Alexander, 112 Mich App 357, 359-360; 315 NW2d 543 (1981); People v Miller, 110 Mich App 270, 274; 312 NW2d 225 (1981); People v Williams, 109 Mich App 768, 769-770; 312 NW2d 155 (1981); Wayne Co Prosecutor v Recorder’s Court Judge, 101 Mich App 772, 775-777; 300 NW2d 516 (1980); Wayne Co Prosecutor v Recorder’s Court Judge, 100 Mich App 518, 519-520; 299 NW2d 63 (1980); People v Beachman, 98 Mich App 544, 548, 551; 296 NW2d 305 (1980); People v Kincaid, 92 Mich App 156, 157-158; 284 NW2d 486 (1979); People v Greer, 91 Mich App 18, 21; 282 NW2d 819 (1979); People v Washington, 77 Mich App 598, 599-600, 603; 259 NW2d 151 (1977); People v Terrell, 77 Mich App 676, 678-680; 259 NW2d 187 (1977); People v Falconer, 76 Mich App 367, 368-369; 256 NW2d 597 (1977); People v Bell, 74 Mich App 270, 276-278; 253 NW2d 726 (1977); People v Morris, 66 Mich App 514, 516; 239 NW2d 649 (1976).