People v. Melotik , 221 Mich. App. 190 ( 1997 )

561 N.W.2d 453 (1997) 221 Mich. App. 190

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Eric John MELOTIK, Defendant-Appellee.

Docket No. 174353.

Court of Appeals of Michigan.

Submitted June 20, 1996, at Lansing. Decided January 21, 1997, at 9:25 a.m. Released for Publication April 9, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and John S. Pallas, Assistant Prosecuting Attorney, for People.

Stuart L. Young, Bingham Farms, for defendant-appellee.

Before SMOLENSKI, P.J., and HOLBROOK and F.D. BROUILLETTE^[*], JJ.

SMOLENSKI, Presiding Judge.

The prosecutor appeals by leave granted from the circuit court's denial of his delayed application for leave to appeal the district court's order dismissing the charges^[1] filed in this case against defendant. We reverse and remand.

This case arises out of a series of shooting incidents, including school bus shootings, that occurred in the area of the residence of defendant's parent. Defendant lived at this residence when not attending college. The police conducted an investigation and traced the likely origin of the shots to this residence. On April 23, 1993, Lieutenant Dale Mallett of the Milford Police Department swore out a fourteen-page affidavit detailing facts in paragraphs A through HH concerning: (1) the shooting incidents, which the police believed to have been perpetrated with either a pellet gun or a .22 caliber weapon on the basis of the type of damage caused by the shootings and the recovery of .22 caliber slugs; (2) the police contacts with defendant, who indicated that he owned a pellet air rifle, and defendant's father, who indicated that he owned a .22 caliber rifle; (3) a statement by a named citizen who informed the police that defendant had previously stated that he had shot at school buses before; and (4) observations of defendant's activities by the police. That same day, a magistrate issued a warrant authorizing the police to search defendant's residence for. 22 caliber firearms and.22 caliber ammunition. The validity of this affidavit and warrant is not challenged on appeal.

The police did not execute the April 23 warrant and conduct a search of defendant's residence, but, instead, resolved to continue their investigation and surveillance of defendant and his residence. On April 25, 1993, the police observed defendant attempting to break into a shed located near defendant's residence. The police immediately arrested defendant for attempted breaking and entering. Lieutenant Mallett thereafter questioned defendant, who admitted not only being the shooter in the shooting incidents, but also committing several other breakings and enterings. Lieutenant Mallett then swore out a second affidavit that was identical to the first affidavit in paragraphs A through FF, and added paragraphs GG through OO detailing the facts of defendant's statement. The magistrate issued a second search warrant for defendant's residence on April 25, 1993, that was identical to the first warrant except that it additionally authorized the police to search for the specific .22 caliber gun defendant had admitted using in the shootings, as well as items defendant had admitting taking during the breakings and enterings. The police conducted a search of defendant's residence. The record does not indicate the nature of the items seized from defendant's residence. However, defendant was thereafter charged in this case with one of the shooting incidents. In separate proceedings, defendant was also charged with other offenses arising out of the other shooting incidents and the breakings and enterings.

Although the record is not entirely clear in this regard, defendant was apparently bound over to the circuit court in this case as well as the other related cases. A hearing was subsequently held either in this case or one of the other related cases, following which the circuit court ruled that defendant's statement would not be admissible at trial. Defendant thereafter moved to dismiss this case, as well as several of the other related cases, on the ground that his inadmissible statement was the only evidence that had been presented at his preliminary examination to establish probable cause that he committed the offenses. The circuit court granted defendant's motion to dismiss.

The charges in this case were subsequently reinstated. A preliminary hearing was held, at which evidence was presented that a shooting incident involving a weapon using.22 caliber ammunition had occurred in the area of defendant's residence. When the prosecutor moved for admission of the two warrants, defense counsel objected, arguing that the April 25 warrant was based upon defendant's inadmissible statement, and that, therefore, the warrant should be suppressed as well as anything flowing from the warrant under the fruit of the poisonous tree doctrine enunciated in Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The prosecutor agreed that defendant's statement had been ruled inadmissible, but argued in reliance on People v. Kolniak, 175 Mich.App. 16, 437 N.W.2d 280 (1989), that the district court could strike the portion of the second affidavit containing defendant's inadmissible statement and look at the remaining portions of the affidavit to determine whether probable cause existed to support the second warrant.

The district court declared that it was unable to determine whether the evidence seized was obtained because of defendant's inadmissible statement or because of the other statements contained in the affidavit. The district court ruled that the April 25 warrant was invalid on its face because of defendant's inadmissible statement and ordered that any evidence seized as a result of that warrant be suppressed. When the prosecutor argued that the first warrant had also been executed^[2] during the search of defendant's residence and was still admissible, the district court questioned how it could be determined what evidence was seized pursuant to the April 23 warrant and what evidence was seized pursuant to the April 25 warrant. The district court stated that common sense would indicate that "if you get a second search warrant and you execute on it, then you didn't execute on the first one because you would have done it to begin with. You exe—you went and got the second one and executed it because now you thought that was your search warrant." The district court concluded that it was suppressing any evidence obtained "on the search warrants." When the prosecutor indicated that he did not have any more evidence to present, defense counsel moved to dismiss the case on the ground that there was no probable cause to bind defendant over for trial. The district court dismissed the case against defendant. The circuit court subsequently denied the prosecutor's delayed application for leave to appeal.

The prosecutor first argues that the circuit court abused its discretion in denying his delayed application for leave to appeal because it placed undue weight on the reasons for the delay in filing the application. The prosecutor contends that the court's comments indicate that it would only accept nonculpable reasons for the delay, whereas the law no longer requires that the explanation of the delay show nonculpable negligence. See, e.g., People v. Flowers, 191 Mich.App. 169, 172, 477 N.W.2d 473 (1991). We disagree. While the record indicates that the circuit court was not satisfied with the reasons given for the delay and verbalized its disappointment, the court did not deny the prosecutor's delayed application on the basis of the delay and did not require nonculpable negligence. The court clearly stated that the reason for its denial was based on the lack of merit to the prosecutor's claim. Accordingly, we find no abuse of discretion. Id.

Next, the prosecutor argues that the district court erred as a matter of law in dismissing the charges against defendant.

Specifically, the prosecutor contends that the district court erred in finding that the search warrants were invalid and that the evidence obtained through the execution of the warrants must be suppressed. The prosecutor contends that the district court should have followed the procedure outlined in Kolniak and redacted the references to defendant's statement in the second affidavit supporting the second warrant and determined whether the remaining facts were sufficient to establish probable cause to search defendant's residence.

We must first define the scope of our review of this issue. Generally, a defendant must be bound over for trial if evidence is presented at the preliminary examination that a crime has been committed and there is probable cause to believe that the defendant was the perpetrator. People v. Tower, 215 Mich.App. 318, 320, 544 N.W.2d 752 (1996). Our interpretation of the record is that the district court dismissed the charges against defendant on the ground that there was insufficient evidence presented to establish probable cause to believe that defendant was the perpetrator of the crimes charged in this case. Generally, this Court reviews such a determination by a district court for an abuse of discretion. People v. Neal, 201 Mich.App. 650, 654, 506 N.W.2d 618 (1993). However, the district court's implicit finding of insufficient evidence was based on its ruling that evidence of the search warrant, the affidavit containing references to defendant's inadmissible statement, and any fruits flowing from the execution of the warrant must be suppressed. This ruling, in turn, was based on the district court's refusal to consider whether the facts stated in the affidavit supporting the second warrant apart from those resulting from defendant's statement established probable cause to search defendant's residence. We thus limit our review to this action by the district court.

A trial court's decision following a suppression hearing generally will not be reversed unless it is clearly erroneous. People v. Houstina, 216 Mich.App. 70, 73, 549 N.W.2d 11 (1996). However, if the facts are not disputed, the trial court's application of a constitutional standard is not entitled to the same deference as the court's factual findings. People v. Nelson, 443 Mich. 626, 631, n. 7, 505 N.W.2d 266 (1993); Houstina, supra. This Court reviews questions of law de novo. Id.; People v. Connor, 209 Mich.App. 419,423, 531 N.W.2d 734 (1995).

We initially note that the basis for the determination that defendant's statement was inadmissible is not at all clear from the record. There is no complaint of a violation of the Fourth Amendment. The affidavit in support of the second search warrant asserts that defendant was advised of and waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), before he made a statement. However, at the circuit court hearing concerning the delayed application for leave to appeal, the prosecutor indicated that the statement had been ruled inadmissible because it had been obtained in violation of Miranda. In United States v. Patterson, 812 F.2d 1188, 1193 (C.A.9,1987), the Ninth Circuit Court of Appeals held that a voluntary statement given by the defendant to a secret service agent before the defendant was advised of his Miranda rights could be used in an affidavit for a search warrant to establish probable cause. The court explained as follows:

Patterson's statements were elicited even though Patterson was not advised of his Miranda rights. Miranda violations do not abridge the Fifth Amendment constitutional privilege against self-incrimination, but instead involve prophylactic standards laid down to safeguard that privilege. Statements obtained in violation of Miranda may not be admitted against the accused, at least in the prosecution's case in chief. "But the Miranda presumption, though irrebuttable for purposes of the prosecution's case in chief, does not require that the statements and their fruits be discarded as inherently tainted." The Wong Sun "fruits of the poisonous tree" doctrine does not control where there is no constitutional violation. [Id. (citations omitted).]

See also People v. Kusowski, 403 Mich. 653, 272 N.W.2d 503 (1978), in which our Supreme Court held that third-party testimony discovered as a result of a Miranda violation need not be suppressed. The Court explained that a Miranda violation does not necessarily involve the violation of the constitution, and, thus, the fruit of the poisonous tree doctrine enunciated in Wong Sun is not controlling where a Miranda violation is involved.

However, at the same hearing in this case, the circuit court, which apparently was the same court that had initially ruled defendant's statement inadmissible, distinguished the prosecutor's reliance on Kolniak as not concerning violations of "Sixth Amendment or Fifth Amendment rights." Defendant, in his brief on appeal to this Court, contends that his statement was ruled inadmissible because he had requested an attorney while being interrogated by the police and that the police had disregarded his request and continued their questioning. Accordingly, because the record is not clear and because the prosecutor has failed to argue that the rule enunciated in Patterson is applicable to this case, we assume for the purpose of this analysis that defendant's statement was obtained in violation of a constitutional right.

However, we find the prosecutor's arguments on appeal persuasive. In Kolniak, this Court held that where a portion of an affidavit in support of a search warrant is valid and a portion is constitutionally invalid for lack of probable cause or generality, a court may sever the valid portions of the warrant and admit any evidence seized under those portions. This Court has recognized an analogous doctrine where false statements are included in an affidavit:

[I]f false statements are made in an affidavit in support of a search warrant, evidence obtained pursuant to the warrant must be suppressed if the false information was necessary to a finding of probable cause. In order to prevail on a motion to suppress the evidence obtained pursuant to a search warrant procured with alleged false information, the defendant must show by a preponderance of the evidence that the affiant had knowingly and intentionally, or with reckless disregard for the truth, inserted false material into the affidavit and that the false material was necessary to a finding of probable cause.[People v. Stumpf, 196 Mich.App. 218, 224, 492 N.W.2d 795 (1992), citing Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) (emphasis supplied).]

Even more on point is the prosecution's citation to the following general rule:

"[W]hen a search warrant is based partially on tainted evidence and partially on evidence arising from independent sources, ``[i]f the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant apart from the tainted information, the evidence seized pursuant to the warrant is admitted.' " [United States v. Shamaeizadeh, 80 F.3d 1131, 1136 (C.A.6, 1996), quoting United States v. Smith, 730 F.2d 1052, 1056 (C.A.6,1984).]

This general rule is a corollary of the independent source rule, which is itself applicable not only in the context of Fourth Amendment violations, but also Fifth Amendment violations. United States v. Giordano, 416 U.S. 505, 555, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974) (opinion of Powell, J.); Shamaeizadeh, supra; People v. Woodard, 111 Mich. App. 528, 534, 314 N.W.2d 680 (1981); People v. Robinson, 48 Mich.App. 253, 259-260, 210 N.W.2d 372 (1973). However, the Sixth Circuit Court of Appeals has appeared to apply a more stringent standard than the general rule. In United States v. Langley, 466 F.2d 27, 35 (C.A.6, 1972), the court stated that "where such tainted information comprises more than a very minor portion of that found in an affidavit supporting a warrant to search, the warrant must be held invalid." This Court has adopted this statement. See People v. McKendrick, 188 Mich.App. 128, 133-134, 468 N.W.2d 903 (1991). However, in Langley, supra at 35 the Sixth Circuit Court of Appeals held that the district court had not erred in denying a motion to suppress evidence seized pursuant to a warrant supported by an affidavit containing tainted information on the ground that "[t]he other information contained in the affidavit ... certainly constituted probable cause to search Langley's dwelling." Thus, Langley's apparently more stringent standard has been explained as not contradicting the general rule. Giordano, supra at 556, n. 6, 94 S. Ct. at 1846 n. 6 (Powell, J.). We agree. Langley has also been explained as predating Franks, supra, and other Sixth Circuit Court of Appeals opinions that have followed the general rule. United States v. Gillenwaters, 890 F.2d 679, 682, n. 4 (C.A.4, 1989). Again, we agree. See Shamaeizadeh, supra; United States v. Smith, 730 F.2d 1052 (C.A.6, 1984); United States v. Kinney, 638 F.2d 941 (C.A.6,1981).^[3]

In this case, the facts contained in the second affidavit were divided into two discreet categories, i.e., the facts discerned by the police during their investigation up to April 23 that prompted the police to apply for and obtain the first warrant issued in this case^[4] and the facts of defendant's inadmissible statement. In light of the principles enunciated above, we conclude that the district court erred in failing to consider whether the facts obtained by the police up to April 23 constituted probable cause to justify issuance of the second warrant apart from the tainted facts of defendant's inadmissible statement. Accordingly, we reverse both the order of the circuit court denying the delayed appeal and the order of the district court dismissing the criminal charges here at issue and remand to the district court. On remand, the district court shall consider whether the facts contained in the second affidavit, after redaction of the facts arising solely from defendant's inadmissible statement, established probable cause to issue the second warrant. Defendant may raise any relevant issues. If the district court concludes that the second warrant was supported by probable cause apart from defendant's statement, the district court shall admit the evidence seized pursuant to the warrant and continue the preliminary examination. We do not retain jurisdiction.

Reversed and remanded.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Although the parties' briefs on appeal and the pleadings filed in the record below indicate that defendant was charged with "discharge of a firearm in or at a building, M.C.L. § 750.234; M.S.A. § 28.431," and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), we note that M.C.L. § 750.234; M.S.A. § 28.431 is the misdemeanor offense of discharge of a firearm aimed at another intentionally but without malice. In all likelihood, the intend statutory reference was M.C.L. § 750.234b; M.S.A. § 28.431(2). However, the apparent error does not effect our analysis.

[2] In his brief on appeal, defendant asserts that the first warrant was not executed by the police. We note that there is no evidence in the record to support the prosecutor's assertion at the second preliminary examination that the police executed both warrants when they searched defendant's residence. However, we further note that the prosecutor offered to submit evidence on this point but was precluded from doing so by the district court.

[3] See also United States v. Nelson, 459 F.2d 884 (C.A.6, 1972), which has been explained as requiring the suppression of evidence because the untainted allegations in an affidavit supporting a warrant did not constitute probable cause. Giordano, supra; Gillenwaters, supra.

[4] See Murray v. United States, 487 U.S. 533, 542, n. 3, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988) (to determine whether a warrant is independent of the illegality, one must ask whether the warrant would have been sought even if what actually happened had not occurred).