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People v. Franklin

Supreme Court of Michigan

May 12, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
DARIUS LAMARR FRANKLIN, Defendant-Appellant.

          Argued on application for leave to appeal January 12, 2017.

         SYLLABUS

          Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder

         Darius L. Franklin was charged in the Wayne Circuit Court with possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), carrying a firearm during the commission of a felony, MCL 750.224f, and being a felon in possession of a firearm, MCL 750.227b(1). The charges against defendant arose after police officers found a handgun and 350 grams of marijuana in defendant's home during the execution of a search warrant. The search warrant was issued on the basis of an affidavit stating that the affiant, a police officer, received information from an unregistered confidential informant (CI) that significant drug trafficking was taking place at defendant's home. According to the affiant's sworn affidavit, he surveilled defendant's home and observed five unknown individuals approach the home within a 30-minute time span. The affiant further averred that a young man let the individuals into defendant's home and that each individual was inside defendant's home for less than one minute. The magistrate found that there was probable cause to believe that illegal drugs would be found in defendant's home and issued the search warrant. Before trial, defendant moved to quash the search warrant and for a hearing under Franks v Delaware, 438 U.S. 154 (1978), to challenge the veracity of the affidavit on which the warrant was based. The court, Bruce U. Morrow, J., denied defendant's motion to quash the warrant, concluding that the information in the affidavit, if taken as true, supported the magistrate's finding of probable cause. Notwithstanding this conclusion, the court expressed concern regarding the veracity of the information provided to the affiant by the unregistered CI and granted defendant's motion for a Franks hearing. Ultimately the court found the information in the affidavit not credible and the affidavit insufficient to support the warrant. According to the court, the affiant acted with reckless disregard for the truth by including an unregistered CI's information in the affidavit without confirming or corroborating it and without providing evidence, in accordance with MCL 780.653, that the CI had personal knowledge of the information given to the affiant. The court granted defendant's motion to suppress and dismissed all charges against defendant. The prosecution appealed, and the Court of Appeals, Fort Hood, P.J., and Cavanagh and K. F. Kelly, JJ., reversed the trial court's order dismissing the charges against defendant in an unpublished per curiam opinion issued October 20, 2015. The Court of Appeals held that the trial court abused its discretion by holding an evidentiary hearing because defendant had failed to make the substantial preliminary showing required under Franks to merit a hearing. Defendant sought leave to appeal, and the Supreme Court ordered and heard oral argument on whether to grant the application or take other peremptory action. 499 Mich. 886 (2016).

         In a unanimous opinion by Chief Justice Markman, the Supreme Court held:

         The United States and Michigan Constitutions, U.S. Const, Am IV and Const 1963, art 1, § 11, prohibit the issuance of a warrant to search any place or seize any person or property without probable cause supported by oath or affirmation. Under certain circumstances, a criminal defendant has a constitutional right to a Franks hearing-an evidentiary hearing to review the veracity of an affidavit on which a search warrant is based and determine whether the affidavit is sufficient to support a magistrate's conclusion that probable cause existed to believe that evidence of a crime would be found in a particular place. A trial court must hold a Franks hearing at a defendant's request whenever the defendant's offered evidence constitutes a substantial preliminary showing that the affiant made a false statement-knowingly and intentionally, or with reckless disregard for the truth-and the false statement was necessary to the finding of probable cause required to issue the warrant. Franks governs whether the Fourth Amendment demands that an evidentiary hearing be held; that is, Franks concerns when a trial court may not deny a defendant an evidentiary hearing. However, nothing prevents a trial court from holding a hearing to examine the veracity of a warrant affidavit even without a substantial preliminary showing by a defendant. Given the absence of any identified prohibition in the federal Constitution or federal law and the latitude that Michigan trial courts generally have regarding motion practice and evidentiary hearings, a trial court may exercise its discretion and hold an evidentiary hearing to review the veracity of an affidavit and determine whether a search warrant was supported by probable cause. A trial court's decision to hold an evidentiary hearing is reviewed for an abuse of discretion. In this case, the trial court did not abuse its discretion by granting defendant's motion for a hearing, and the prosecution did not challenge the trial court's ruling following the hearing-that the warrant was not supported by probable cause. Accordingly, the trial court order dismissing the charges against defendant was reinstated.

         Reversed.

          Justice Wilder took no part in the decision of this case.

         BEFORE THE ENTIRE BENCH (except Wilder, J.)

          OPINION

          Markman, C.J.

         This case concerns whether a trial court in its discretion may hold an evidentiary hearing to collaterally review a magistrate's finding of probable cause on the basis of a defendant's challenge to the veracity of a warrant affidavit in light of the United States Supreme Court's holding in Franks v Delaware, 438 U.S. 154; 98 S.Ct. 2674; 57 L.Ed.2d 667 (1978). Franks held that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and . . . the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." Id. at 155-156. The Court of Appeals interpreted Franks as barring a trial court from granting a defendant an evidentiary hearing to challenge the veracity of a search warrant affidavit following the warrant's execution "unless the defendant makes '[the] substantial preliminary showing' " as set forth in Franks. People v Franklin, unpublished per curiam opinion of the Court of Appeals, issued October 20, 2015 (Docket No. 322655), p 2 (emphasis added), quoting Franks, 438 U.S. at 155-156. We reverse the judgment of the Court of Appeals, and we hold that Franks controls the circumstances under which "the Fourth Amendment requires that a hearing be held at the defendant's request, " Franks, 438 U.S. at 156, but Franks does not bar a trial court from exercising its discretion to grant evidentiary hearings concerning the veracity of search warrant affidavits under other circumstances. (Emphasis added.) Because the prosecutor did not appeal the trial court's conclusion that the warrant affidavit was not supported by probable cause, the only issue before the Court is whether the trial court abused its discretion by holding the evidentiary hearing. We reverse the judgment of the Court of Appeals and conclude that the trial court did not abuse its discretion when it granted defendant's motion for an evidentiary hearing.

         I. FACTS AND HISTORY

         On March 21, 2014, Police Officer Lynn Moore signed an affidavit in support of a search warrant for defendant Darius Franklin's house, alleging illegal drug activity based on both Moore's own surveillance earlier that day and information from a confidential informant (CI). The affidavit stated in relevant part:

3.) On 03/11/2014, Affiant was contacted by an unregistered confidential informant, whom Affiant has used numerous time[s] prior, advising Affiant on the location of [address omitted] being involved in a high amount of marijuana trafficking. Affiant has used this informant numerous (over 10 times) in the past resulting in confiscations of narcotics, weapons and multiple felony arrests.
4.) Upon Affiant researching the Narcotics Complaint Data Base, Affiant found no open Narcotics Complaints stemming from this location.
5.) On 03/21/2014 Affiant set up a surveillance operation on the above location mentioned. At this time Affiant observed 5 unknown individuals within a (30) minute period walk up to the above described location front main entry door. These unknown individuals were then met by the above mentioned seller from inside of the above location by opening the front main entry door and security gate. After a brief conversation with each unknown individual, the above mentioned seller would then let these individuals inside of the location. The above mentioned individuals would then exit the location and walk off in different directions. Each transaction took less than (1) minute to complete. Upon the last individual leaving the area Affiant engaged this person in conversation. Affiant questioned if the above location was open for sales of marijuana. Unknown individual then stated "Yah, they up right now just go to the front door and they will hook you up". Unknown individual then walked away. Affiant ended surveillance operation.[1]

         The proposed search warrant described the alleged seller as a 25- to 27-year-old black male. After reviewing the affidavit, the magistrate determined that there was probable cause to believe that defendant's home contained illegal drugs, and the magistrate issued a search warrant. During the subsequent search of defendant's home, the police found a handgun and two bags of marijuana (about 350 grams in total), but they did not find a scale, baggies, or packaging equipment. Defendant was the only person home. He was charged with possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), carrying a firearm during the commission of a felony, MCL 750.224f, and being a felon in possession of a firearm, MCL 750.227b(1).

         Before trial, defendant moved for an evidentiary hearing pursuant to Franks, 438 U.S. 154, to quash the search warrant, and to suppress the evidence seized. Under Franks, a defendant is constitutionally entitled to an evidentiary hearing to attack the veracity of a warrant affidavit when the defendant offers a "substantial preliminary showing" that the affiant allegedly acted with "deliberate falsehood or [with] reckless disregard for the truth . . . ." Id. at 171. Defendant's offer of proof in this case consisted of his own affidavit stating that his front door had a locked security gate that required a key and had not been used in approximately six months.[2]

         At the hearing held on defendant's motion for a Franks hearing, the trial court denied defendant's motion to quash the search warrant, concluding that the information in Paragraph 5 was sufficient to demonstrate probable cause; the court nonetheless granted the motion to hold a Franks hearing. The court opined that the affiant had failed to supply sufficient information to demonstrate that the CI was credible. At the conclusion of the motion hearing the court ordered the prosecutor to provide more detailed information in preparation for the Franks hearing regarding the CI, including "all the times [the] affiant has used this unregistered [CI] on search warrants and . . . whatever field notes that are used so that this Court can be assured that the unregistered [CI] is the same one." The prosecutor objected to the Franks hearing, arguing that defendant had not made the requisite showing to merit the hearing.

         At the evidentiary hearing, the affiant testified that he generally does not keep logs or records of his unnamed and unregistered informants and that he pays them an undisclosed amount of money from his personal funds. In addition, the affiant acknowledged that he never witnessed an exchange of money or drugs at defendant's house despite referring in his affidavit to a "seller" and "transactions." Defendant also provided photographs of the front of his house taken from the vantage point of his next door neighbor's house, and his neighbor testified that visitors did not frequently come and go from defendant's home at short intervals and that she never saw anyone "go in and out" of his front door. Defendant testified that there is a locked steel gate in front of his front door and that no one uses his front door. He further testified that he was 41 years old, lived alone, and that no young man had ever stayed in his home.

         Following the hearing, the trial court granted defendant's motion to suppress, finding that the information in support of the affidavit for the search warrant was not credible. More specifically, the court found that there was no evidence that the unregistered CI had provided information from his personal knowledge. The trial court concluded that the affiant had acted with "reckless disregard for the truth" when he included the CI's information in his affidavit without ...


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