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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v MICHAEL DAVID KELLER, Defendant-Appellee.

FOR PUBLICATION March 30, 2006 9:00 a.m. No. 264865 Genesee Circuit Court LC No. 2005-016145-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, V MELINDA SUE KELLER, Defendant-Appellee. Official Reported Version Before: Davis, P.J., and Cavanagh and Talbot, JJ. CAVANAGH, J. In these consolidated appeals, the prosecution appeals by leave granted the trial court's orders denying defendants' motions to suppress evidence obtained from the execution of a search warrant, but ruling that defense counsel could argue to the jury that the police misled the magistrate and violated Michigan law when they sought and obtained the search warrant. We reverse the denial of defendants' respective motions to suppress; therefore, we need not reach the question whether defendants may argue police misconduct to the jury. On appeal the prosecution argues that the trial court erred when it ruled that defense counsel could argue to the jury that the police misled the magistrate and violated Michigan law when they sought and obtained the search warrant. After review de novo, we conclude that the No. 265118 Genesee Circuit Court LC No. 2005-016144-FH

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trial court erroneously denied defendants' motions to suppress.1 See People v Hickman, 470 Mich 602, 605; 684 NW2d 267 (2004). First, we agree with the trial court's conclusion that the magistrate erred in issuing the search warrant. "Probable cause to issue a search warrant 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." People v Kazmierczak, 461 Mich 411, 417-418; 605 NW2d 667 (2000), citing People v Russo, 439 Mich 584, 603-604; 487 NW2d 698 (1992). A "finding of reasonable or probable cause shall be based upon all the facts related within the affidavit . . . ." MCL 780.653. Here, the affidavit was based on information provided by an unnamed person. Such information is deemed sufficient if the magistrate can "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." MCL 780.653(b). In this case, the "tip" was not given directly to the police by the anonymous informant and the police could not prove that the informant spoke with personal knowledge of the information. Furthermore, because the police never used the anonymous informant in the past, they could not prove that the anonymous informant was credible. Moreover, after several days of surveillance investigation and a "trash pull," the police only found a marijuana cigarette butt (a roach) in the trash and possibly a small amount of marijuana residue in a pizza box--not evidence of marijuana manufacture or delivery; thus, the police could not prove that the information that the anonymous informant supplied was reliable. See People v Levine, 461 Mich 172, 180-183; 600 NW2d 622 (1999). Therefore, the "tip" information in the affidavit did not meet the requirements of MCL 780.653(b), and the trial court properly concluded that the magistrate erred in issuing the search warrant. See Kazmierczak, supra. But, the trial court relied on our Supreme Court's decision in People v Hawkins, 468 Mich 488, 513; 668 NW2d 602 (2003), to conclude that the exclusionary rule was not the proper remedy. The trial court was correct in noting that a violation of the statutory affidavit requirements set forth in MCL 780.653 does not, by itself, warrant the application of the exclusionary rule. Hawkins, supra at 502, 510-511. However, the Hawkins Court did not address the dispositive issue that we have here--whether the affidavit as a whole contained enough facts to establish probable cause to issue the warrant and, if not, whether the exclusionary rule applies in the context of a constitutional violation. Const 1963, art 1,

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