People of Michigan v. Donald Wayne Barnes III ( 2018 )


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  •                            STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
    May 8, 2018
    Plaintiff-Appellant,
    v                                                                     No. 337113
    Oakland Circuit Court
    DONALD WAYNE BARNES III,                                              LC No. 2016-257776-FH
    Defendant-Appellee.
    Before: SERVITTO, P.J., and MARKEY and O’CONNELL, JJ.
    Servitto, J. (concurring in part and dissenting in part).
    I concur with the majority’s conclusion that the trial court’s order quashing the search
    warrants for the Perry Street and Brown Road properties should be reversed and the case should
    be remanded to the trial court for further proceedings with respect to charges stemming from
    evidence found at those properties. I, however, would affirm the trial court’s ruling quashing the
    search warrant with respect to defendant’s home on Meadowbrook Lane, suppressing any
    evidence obtained from that location, and dismissing any charges against defendant stemming
    from evidence obtained from his home.
    A search warrant may only be issued on a showing of probable cause. US Const. Am IV;
    Const 1963, art 1, § 11; MCL 780.651(1). “Probable cause for issuance of a search warrant
    exists if there is a substantial basis for inferring a fair probability that contraband or evidence of
    a crime exists in the location to be searched.” People v Malone, 
    287 Mich. App. 648
    , 663; 792
    NW2d 7 (2010), overruled on other grounds by People v Jackson, 
    498 Mich. 246
    ; 869 NW2d 253
    (2015). Probable cause must be based on facts presented to the issuing magistrate by oath or
    affirmation. People v Brown, 
    297 Mich. App. 670
    , 675; 825 NW2d 91 (2012). “When probable
    cause is averred in an affidavit, the affidavit must contain facts within the knowledge of the
    affiant rather than mere conclusions or beliefs.” People v Waclawski, 
    286 Mich. App. 634
    , 698;
    780 NW2d 321 (2009).
    “When reviewing a magistrate's decision to issue a search warrant, this Court must
    examine the search warrant and underlying affidavit in a common-sense and realistic manner.”
    
    Malone, 287 Mich. App. at 663
    . This Court must then determine whether a “reasonably cautious
    person,” under the totality of the circumstances, “could have concluded that there was a
    substantial basis for the magistrate's finding of probable cause.” 
    Id. -1- In
    this matter, the investigation was into illegal sales of marijuana at the Metro Detroit
    Compassion Club (MDCC), a Michigan nonprofit corporation. Based on controlled buys of
    marijuana made at that location, there was probable cause to issue a search warrant for the
    MDCC facility. In the affidavit supporting the search warrant for a warehouse located on Brown
    Road, it was averred that during the execution of the search warrant at the MDCC documents
    were found indicating that a marijuana dispensary was located on Brown Road. While perhaps a
    stretch, there was sufficient probable cause to issue a search warrant for the Brown Road
    property. The same, however, does not hold true with respect to the search warrant issued for
    defendant’s home.
    In the affidavit submitted by Detective Eric Buckberry in support of his request for a
    search warrant of defendant’s home, Buckberry averred that he was in charge of an ongoing
    narcotics investigation at the MDCC. Buckberry swore that he received information that
    employees of the MDCC were selling marijuana to persons who had medical marijuana cards but
    were not registered patients of anyone at the MDCC, and that he had conducted four controlled
    buys at the MDCC with a confidential informant. Buckberry swore that, in his experience,
    persons trafficking drugs often document transactions and keep other evidence of their
    transactions and that said evidence may be located at defendant’s home. Buckberry swore that
    defendant was shown to be the resident agent of MDCC. Buckberry also swore that a vehicle
    registered to defendant has been seen at the MDCC numerous times in the past 30 days. The
    magistrate signed a search warrant for defendant’s home based on the affidavit provided by
    Buckberry.
    Notably absent from the affidavit is any mention of defendant being present at the MDCC
    at the time of the controlled buys, or any mention of defendant having taken part in any of the
    controlled buys or having been suspected as being part of the illegal drug sales out of the MDCC.
    Instead, the affidavit simply stated that defendant’s vehicle was seen at the MDCC numerous
    times. With respect to defendant being listed as MDCC’s resident agent, the address of the
    resident agent provided on the MDCC articles of incorporation filed with the state was not his
    home address. Rather, the address listed was on Joslyn Road in Lake Orion. More importantly,
    the naming of a resident agent is simply a statutory requirement of every domestic and foreign
    corporation authorized to conduct affairs in the state of Michigan. MCL 450.2241(b). Pursuant
    to MCL 450.2241(b):
    Any of the following may serve as resident agent:
    (i) An individual resident in this state whose business office or residence is
    identical with the registered office.
    (ii) A domestic corporation, a domestic business corporation, a foreign
    corporation, a foreign business corporation, a limited liability company, or
    another entity, if it is authorized to conduct affairs or transact business in this state
    and it has a business office identical with the registered office.
    Thus, the only requirement of a resident agent is that it have a business office or residence
    identical to the registered office of the business. Moreover, the general purpose of a resident
    agent is only to serve as an agent of the corporation for purposes of accepting service of process
    -2-
    on behalf of the corporation. MCL 450.2246. A resident agent need not have any ownership in,
    control over, or otherwise participate in the running of the corporation. I would find, then, that
    the facts that defendant was listed as the resident agent of the MDCC and his vehicle was there
    on several occasions were insufficient to establish probable cause to believe that evidence of
    illegal drug sales would be found at his home. Buckberry did not state that he had any
    information whatsoever tying defendant to the controlled buys or that the illegal sales being
    made by employees of the MDCC were in fact being made by defendant, nor did he attest to any
    drug sales or information concerning drug sales being made out of defendant’s home. There was
    no substantial basis for inferring a fair probability that drugs or evidence of drug sales would be
    found at defendant’s home based on the scant information contained in Buckberry’s affidavit
    (
    Malone, 287 Mich. App. at 663
    ) and the search warrant for defendant’s home was thus invalid.
    “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 proceeding.” People v Hellstrom, 
    264 Mich. App. 187
    ,
    193; 690 NW2d 293 (2004). There are, however, exceptions to this exclusionary rule. In People
    v Goldston, 
    470 Mich. 523
    , 543; 682 NW2d 479 (2004), our Supreme Court adopted the “good-
    faith exception” to the exclusionary rule in Michigan. 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.” 
    Id. at 525–26.
    The Goldston Court relied primarily upon and
    adopted the reasoning in United States v Leon, 
    468 U.S. 897
    ; 
    104 S. Ct. 3405
    ; 
    82 L. Ed. 2d 677
    (1984), wherein it was concluded that the exclusionary rule should be employed on a case-by-
    case basis and only where exclusion would further the purpose of deterring police misconduct.
    The Court emphasized, however, that a police officer's reliance on a magistrate's
    probable cause determination and on the technical sufficiency of a warrant must
    be objectively reasonable. Evidence should also be suppressed if the issuing
    magistrate or judge is misled by information in the affidavit that the affiant either
    knew was false or would have known was false except for his reckless disregard
    of the truth. Further, the Court stated that the good-faith exception does not apply
    where the magistrate wholly abandons his judicial role or where an officer 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.’ ” [Leon 468 US] at
    923. 
    [Goldston, 470 Mich. at 531
    ]
    I would find that, under the totality of the circumstances in this case, the officers relied on a
    warrant to search defendant’s home based on an affidavit so lacking in indicia of probable cause
    as to render belief in its existence entirely unreasonable. It is entirely unreasonable to find that
    the resident agent of a corporation opens himself up to personal searches whenever the
    corporation is suspected of wrongdoing. A resident agent is simply a statutorily required
    figurehead authorized to accept service of process on behalf of the corporation—nothing more.
    That fact, alone, does not render a resident agent susceptible to giving up his Fourth Amendment
    rights due to suspected criminal activity by employees of the corporation. That defendant’s
    vehicle was seen at the MDCC on numerous occasions does not change my opinion. Any citizen
    can and should be able to visit a nonprofit corporation without giving up his or her Fourth
    Amendment rights to have probable cause support a search warrant. I would thus affirm the trial
    -3-
    court’s ruling quashing the search warrant with respect to defendant’s home on Meadowbrook
    Lane, suppressing any evidence obtained from that location, and dismissing any charges against
    defendant stemming from evidence obtained from his home.
    /s/ Deborah A. Servitto
    -4-
    

Document Info

Docket Number: 337113

Filed Date: 5/8/2018

Precedential Status: Non-Precedential

Modified Date: 5/9/2018