PEOPLE OF MI V DOLPH D CLARK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 31, 2000
Plaintiff-Appellant,
v
No. 223304
Wayne Circuit Court
LC No. 99-006862
DOLPH D. CLARK,
Defendant-Appellee.
Before: Griffin, P.J., and Cavanagh and Gage, JJ.
MEMORANDUM.
Plaintiff appeals as of right the order granting defendant’s motion to quash the search warrant
and dismissing charges against defendant. We reverse.
Defendant was charged with possession with intent to deliver between 225 and 649 grams of
cocaine, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), possession of marijuana, MCL
333.7403(2)(d); MSA 14.15(7403)(2)(d), and felony-firearm, MCL 750.227(b); MSA 28.424(2).
His arrest followed a search of his home which was conducted based on a search warrant issued on
April 21, 1999. The circuit court granted defendant’s motion to quash, finding that the affidavit in
support of the warrant failed to supply indicia of the reliability of the unnamed informant.
A search warrant and the underlying affidavit are to be read in a common-sense and realistic
manner. People v Russo, 439 Mich 584, 604; 487 NW2d 698 (1992). Affording deference to the
magistrate’s decision requires that the reviewing court ensure 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 at a particular place. Id. Probable cause exists when a person of reasonable caution would be
justified in concluding that evidence of criminal conduct is in the stated place to be searched. Id at 606
607.
The trial court erred in focusing on the reliability of the informant where the affidavit was
primarily based on the direct observations of the affiant-police officer. People v Williams, 139 Mich
App 104; 360 NW2d 585 (1984), held that a police officer-affiant’s information regarding the single
controlled buy can form a sufficient substantial basis for the magistrate’s finding of probable cause. Id.
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at 107. The reliability or the credibility of the informant is not at issue where the only information offered
in the affidavit to support the warrant is the controlled buy, in which the affiant participated. Therefore,
no hearsay is at issue. Id.
This case presents the unusual situation where the controlled buy was completed outside the
house, where it could be observed by police. The affiant observed the whole transaction, and saw
defendant go into the house and return with narcotics. These observations supplied a sufficient basis for
a finding of probable cause, independent of any credibility questions regarding the informant. MCL
780.653; MSA 28.1259(3). See also People v Tejeda, 181 Mich App 450, 464-468; 449 NW2d
908 (1989) (Griffin, J., dissenting).
Reversed and remanded for trial. We do not retain jurisdiction.
/s/ Richard Allen Griffin
/s/ Mark J. Cavanagh
/s/ Hilda R. Gage
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