PEOPLE OF MI V JAMES GREGORY DENT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 21, 2010
Plaintiff-Appellee,
v
No. 290832
Oakland Circuit Court
LC No. 2007-216132-FH
JAMES GREGORY DENT,
Defendant-Appellant.
Before: MURRAY, P.J., and DONOFRIO and GLEICHER, JJ.
GLEICHER, J. (dissenting).
I respectfully dissent. Because the search warrant affidavit failed to connect defendant’s
home with the heroin purchased at a different location, the affidavit did not establish probable
cause. I would further hold that the affidavit was “so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.” United States v Leon, 468 US 897,
923; 104 S Ct 3405; 82 L Ed 2d 677 (1984), quoting Brown v Illinois, 422 US 590, 610-611; 95
S Ct 2254; 45 L Ed 2d 416 (1975).
A search warrant may issue only on a showing of probable cause. US Const, Am IV;
Const 1963, art 1, § 11. “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, 418; 605 NW2d 667 (2000),
quoting People v Russo, 439 Mich 584, 604; 487 NW2d 698 (1992). The United States Supreme
Court has succinctly set forth the legal analysis governing whether an affidavit supplies
sufficient evidence to establish probable cause:
The task of the issuing magistrate simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit
before him, including the “veracity” and the “basis of knowledge” of persons
supplying hearsay information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. And the duty of a
reviewing court is simply to ensure that the magistrate had a “substantial basis for
… concluding that probable cause existed. [Illinois v Gates, 462 US 213, 239;
103 S Ct 2317; 76 L Ed 2d 527 (1983) (internal quotation omitted).]
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The pertinent paragraphs of Officer Charles Janczarek’s affidavit read as follows:
(2)
That Affiant has been conducting a continued investigation
concerning illegal drug trafficking at 240 South Anderson, in the City of Pontiac,
County of Oakland, State of Michigan. Confidential informant of established
reliability provided the affiant with true and accurate information concerning
criminal activity at 240 South Anderson.
(3)
The affiant has controlled the purchase of heroin from the location
once within the past 48 hours. The controlled purchase was performed with the
cooperation of a confidential informant.
(A)
The confidential informant contacted a black male and arranged to
purchase narcotics. Within five minutes after the phone call Ofc. Main observed
a black male exit 240 South Anderson, enter a 1997 Chevrolet Monte Carlo
(Michigan registration: BEA 6709), and drive to the pre-arranged meet location.
Once at the pre-arranged meet location affiant observed the black male conduct a
hand to hand narcotics transaction with the confidential informant.
(B)
The substance alleged by the informant to be heroin was fieldtested by affiant using the Mecke’s Modified Reagent Tester and a positive
reaction was received for the presence of heroin.
(C)
The informant was searched immediately before and after making
the purchase with negative results.
(D)
The affiant observed the confidential informant perform the hand
to hand transaction and return to the pre-arranged meet location without stopping
at any other location or having contact with any other persons.
(E)
After the purchase had been made affiant identified the individual
that sold the heroin to the confidential informant as Howard James McCullum
(DOB 03/18/52).
The affidavit averred that the confidential informant had supplied “true and accurate
information concerning criminal activity at 240 South Anderson.” But nowhere in the affidavit
did Officer Janczarek attest that the confidential informant had ever actually entered 240 South
Anderson, seen contraband within the residence, or participated in a drug transaction that took
place at that address. Officer Janczarek related that in response to the informant’s call to an
unnamed, unidentified “black male,” Howell James McCullum emerged from defendant’s
residence, traveled to a different location, and participated in a hand-to-hand narcotics
transaction. This evidence demonstrates that McCullum possessed contraband, but does not give
rise to a fair probability that officer would find narcotics inside defendant’s home. It is at least
equally plausible that McCullum completed the narcotics transaction by drawing on a stash of
heroin secreted on his person or inside the 1997 Chevrolet Monte Carlo that he drove to the
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heroin sale.1 Furthermore, the affidavit mentioned no evidence linking McCullum to defendant’s
residence in any respect besides his mere presence there for an unspecified time period.
Although the affidavit states that the police “conducted a Computerized Criminal History search”
regarding McCullum, the affidavit does not reference McCullum’s address. Nor does the
affidavit describe any alternative basis for concluding that McCullum owned, lived, or
temporarily resided at 240 South Anderson. Because no facts link the contraband to 240 South
Anderson, the affidavit does not supply a substantial basis for inferring a fair probability that
drugs would be found there, or that the address served as the operation center for a drug
enterprise.
The majority dismisses the fact that “nothing tied the seller to the house, other than his
being present in it immediately before engaging in the transaction,” concluding that McCullum’s
presence in the house, in combination with his sale to the informant and his history of selling
drugs, established “enough to reasonably believe that drugs and associated paraphernalia could
be located in the premises.” Ante at 4. In my view, this evidence establishes that McCullum
dealt illegal drugs, but at most raises only a bare suspicion that contraband might be located in
defendant’s home. With respect to Officer Janczarek’s attestation that he “has been conducting a
continued investigation concerning illegal drug trafficking at 240 South Anderson,” the affidavit
incorporates no mention of any illegal drug transactions associated with that address or that a
resident of the home had participated in any criminal activity. To establish probable cause, there
must be a “nexus between the place to be search and the evidence sought.” United States v
Laughton, 409 F3d 744, 747 (CA 6, 2005) (internal quotation omitted). The only nexus noted in
the affidavit consisted of McCullum’s presence at the residence shortly before engaging in a
heroin sale. The affidavit otherwise remains devoid of any facts connecting McCullum and 240
South Anderson or any facts supporting an inference that additional drugs would be found at the
residence. In my estimation, a drug dealer’s presence in the home of another does not yield
probable cause to search the host’s home. I conclude that the affidavit’s averments fall far short
of establishing a substantial basis for inferring that evidence of illegal activity would be found in
240 South Anderson, a home visited for an unknown period by a narcotic seller.
That said, I agree with the majority’s characterization of our differences as “vast.” Ante
at 7. In my view, a search warrant may issue only on the basis of specific and articulable facts
linking a residence to evidence of a crime. Facts form the foundation for inferences. “Whether a
sufficient nexus has been established between a defendant’s suspected criminal activity and his
residence thus necessarily depends upon the facts of each case.” United States v Bigelow, 562
F3d 1272, 1279 (CA 10, 2009). The majority asserts that two “facts” support probable cause:
that “a convicted drug felon” had been “located” in the house immediately before the controlled
drug buy, and that “according to the reliable informant, the home had been the location of
‘criminal activity.’” Ante at 7. The majority is willing to infer that a residence visited by “a
1
The majority relies on two cases from other jurisdictions for the proposition that “if it is
‘equally plausible’ that the officer’s version of the facts could be true, the warrant can be issued.”
Ante at 8. Here, however, the equally probable inferences flow from equally meager
circumstantial evidence. Both inferences unconstitutionally draw on pure speculation, rather
than legally sufficient evidence giving rise to a “substantial basis” for the facts inferred.
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convicted drug felon” contains contraband. From my perspective, this evidence may engender a
modicum of suspicion, but it does not support probable cause. “Probable cause is defined as
reasonable grounds for belief, supported by less than prima facie proof but more than mere
suspicion.” United States v Bennett, 905 F2d 931, 934 (CA 6, 1990). “The probable cause
standard requires a quantum of evidence sufficient to cause a person of ordinary prudence and
caution to conscientiously entertain a reasonable belief that the fact asserted is true.” People v
Tennyson, ___ Mich ___; ___ NW2d ___ (Docket No. 137755, decided September 7, 2010),
dissenting opinion by CORRIGAN, J., slip op at 8. Similarly, the informant’s conclusory assertion
that the home had been the location of criminal activity affords no basis at all for making a
probable cause determination. Even together, the “facts” relied upon by the majority simply do
not delineate “a substantial basis for determining the existence of probable cause.” Gates, 462
US at 239.
Because the affidavit entirely failed to (1) describe any criminal activity observed at the
residence, (2) identify the name of the homeowner or resident, and (3) link the homeowner or
resident to criminal activity, official belief in the existence of probable cause qualified as entirely
unreasonable. In People v Goldston, 470 Mich 523, 541; 682 NW2d 479 (2004), our Supreme
Court adopted the good-faith exception to the exclusionary rule announced in Leon, 468 US 897.
The United States Supreme Court in Leon reasoned that the exclusionary rule should not
preclude the admission of evidence obtained by police officers acting in objectively reasonable
reliance on a subsequently invalidated search warrant. Id. at 918-922. However, the Supreme
Court identified four circumstances in which a police officer “will have no reasonable grounds
for believing that the warrant was properly issued.” Id. at 923. One such circumstance arises
when an affidavit is “so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Id. (internal quotation omitted).
Here, the affidavit lacks facts supporting anything more than a mere hunch that 240
South Anderson might contain narcotics. McCullum did not live at the address, and the Monte
Carlo in which he drove to the controlled buy was not registered to the address. No evidence
reasonably suggested that anyone had ever seen narcotics inside the home or witnessed a
narcotics transaction anywhere near the residence. The affidavit did not identify the homeowner
or substantiate that someone who lived at the home possessed a criminal record or a history of
drug dealing. Nor does the affidavit indicate the length of time that McCullum had spent at the
address before receiving the informant’s call.
At its core, the Fourth Amendment preserves respect for the sanctity and privacy of the
home. Any reasonable police officer would understand this fundamental principle, and that it is
patently illegal to intrude on the sanctuary of the home without probable cause. Officer
Janczarek would have known that without further surveillance, he possessed no information
about whether McCullum lived at the house or regularly frequented it, or whether anyone else
associated with the address had a history of drug-related activity. The notable absence of any
information in the affidavit concerning the home’s ownership reinforces my conclusion that
Officer Janczarek knew that precious little information linked the address to the contraband.
Judged by objective criteria, a reasonable officer would have recognized that the affidavit lacked
a substantial basis for a fair inference that 240 South Anderson served as a base of operations for
drug sales. I would hold that the patently insufficient information submitted to the magistrate
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precluded both a determination of probable cause and good-faith reliance on the search warrant,
and would reverse defendant’s conviction on that basis.
/s/ Elizabeth L. Gleicher
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