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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v DANIEL DAVID CHAPIN, Defendant-Appellee.

FOR PUBLICATION December 26, 2000 10:00 a.m. No. 226419 Mecosta Circuit Court LC No. 00-013690-AR Updated Copy March 2, 2001

Before: Fitzgerald, P.J., and Hood and McDonald, JJ. FITZGERALD, P.J. The prosecutor appeals by leave granted the order granting defendant's motion to suppress evidence. We affirm. Defendant's ex-girlfriend and the mother of his child contacted police and disclosed that defendant was growing marijuana plants in his home. A search warrant was obtained and executed. discovered. During the execution of the search warrant, seventy-five marijuana plants were Police also recovered rolling papers, scales, a wooden pipe, a semiautomatic

shotgun, and rounds of ammunition. Defendant was not at home at the time of the search. Upon completion of the search, a copy of the search warrant and a copy of the tabulation were left at the home. A copy of the affidavit in support of the search warrant was available, but not left at the home. The police indicated that the prosecutor specifically requested that they not leave a copy of the affidavit. As a result of the execution of the search warrant, defendant was charged with possession with intent to deliver or manufacture twenty marijuana plants or more but fewer

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than two hundred plants, MCL 333.7401(2)(d)(ii); MSA 14.15(7401)(2)(d)(ii), and possession of a firearm by a person convicted of a felony. MCL 750.224f; MSA 28.421(6).1 At the time of the preliminary examination, there was no indication that the warrant and tabulation had been filed with the court. Defendant moved for suppression of the evidence on the basis of the procedural failure of officers to leave a copy of the affidavit with the warrant and failure to file the warrant and tabulation with the court at the time of the preliminary examination. Defendant's challenge was limited to the procedural action of the police and did not take issue with the probable cause necessary to issue the warrant. The district court granted the motion to suppress, and that holding was affirmed on appeal to the circuit court. We granted the prosecutor's application for leave to appeal. In People v Moten, 233 Mich 169, 170; 206 NW 506 (1925), the defendant was convicted of unlawfully having in his possession intoxicating liquor, specifically "moonshine whisky." The evidence against the defendant was obtained by an executed search warrant. The search warrant indicated the place to be searched, but merely specified that the home was owned by "John Doe," real name unknown, and provided that the home was used as a place for the unlawful sale of intoxicating liquors. The premises were owned by the defendant. On appeal, the defendant took issue with the specific grounds alleged in the search warrant itself. The affidavit in support of the search warrant provided that the affiant believed and had good cause to believe that illegal liquor was stored on the premises. Id. The affiant allegedly searched an individual and then gave the individual $1 to purchase whisky. The individual went into the defendant's home with the $1 and returned with moonshine whisky. However, the search warrant did not recite the material facts alleged in the affidavit. At the time of the search warrant, the pertinent statute

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provided that "the warrant for search shall . . . recite all of the material facts alleged in the affidavit." The statute also set forth the form of the warrant. Specifically, the warrant had to reference an affidavit and repeat the allegations of the affidavit within the search warrant. Id. at 171-172. Our Supreme Court held that suppression of the evidence was required for failure to comply with the technical requirements of the form of the warrant. Specifically, the Court held: In our statute the mandate is positive that the warrant shall recite all material facts alleged in the affidavit, and a statutory form of search warrant is provided indicating just where to insert the recital which the law makes an essential part of a valid warrant. Unfortunately, this essential requirement was ignored. The warrant is invalid, and the evidence procured thereunder inadmissible. [Id. at 174.] The Court also held that a record of the probable cause determination must be established so that the defendant can be informed of the basis for the charge. Id. at 171-173. See also People v Galnt, 235 Mich 646; 209 NW 915 (1926), and People v Bules, 234 Mich 335; 207 NW 818 (1926). Since Moten, the statutes governing the issuance of a search warrant and the contents of the affidavit in support have been recodified. MCL 780.654; MSA 28.1259(4) provides that the warrant shall contain the grounds or the probable cause or, in lieu thereof, attach a copy of the affidavit: A search warrant shall be directed to the sheriff or any peace officer, commanding such officer to search the house, building or other location or place, where any property or other thing for which he is required to search is believed to be concealed. Each warrant shall designate and describe the house or building or other location or place to be searched and the property or thing to be seized. The warrant shall also state the grounds or the probable cause or reasonable cause

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for its issuance, or in lieu thereof, a copy of the affidavit may be attached thereto. [Emphasis added.] In the present case, defendant did not take issue with the individual requirements of

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