The affidavit is the beginning of the search warrant process and must set forth grounds and establish probable cause to support the issuance of the warrant. See People v Waclawski, 286 Mich App 634, 698 (2009). In addition, the Michigan search warrant statute provides that “[t]he magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit” before him or her. MCL 780.653.
For a summary of the search warrant process, see the Michigan Judicial Institute’s checklist describing the process for issuing a search warrant and the checklist describing the process for electronically issuing a search warrant.
“‘The affidavit must contain facts within the knowledge of the affiant, as distinguished from mere conclusions or belief. An affidavit made on information and belief is not sufficient. The affidavit should clearly set forth the facts and circumstances within the knowledge of the person making it, which constitute the grounds of the application. The facts should be stated by distinct averments, and must be such as in law would make out a cause of complaint. It is not for the affiant to draw his own inferences. He must state matters which justify the drawing of them.’” People v Rosborough, 387 Mich 183, 199 (1972), quoting 2 Gillespie, Michigan Crim Law & Proc (2d ed), Search and Seizure, § 868, p 1129.
“In Michigan, there is a presumption that an affidavit supporting a search warrant is valid.” People v Mullen, 282 Mich App 14, 23 (2008).
“A defendant is entitled to a hearing to challenge the validity of a search warrant if he [or she] ‘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 if the allegedly false statement is necessary to the finding of probable cause . . . .’” People v Martin, 271 Mich App 280, 311 (2006), quoting Franks v Delaware, 438 US 154, 155-156 (1978). “In order to warrant a hearing, the challenge ‘must be more than conclusory and must be supported by more than a mere desire to cross-examine.’” Martin, 271 Mich App at 311, quoting Franks, 438 US at 171. “Franks controls the circumstances under which ‘the Fourth Amendment requires that a hearing be held at the defendant’s request,’ 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.” People v Franklin, 500 Mich 92, 95 (2017) (holding that the Court of Appeals erred in “interpret[ing] 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”) (citations omitted; second alteration in original). “Given the absence of any identified prohibition, and given the latitude Michigan trial courts enjoy regarding motion practice and evidentiary hearings generally, . . . trial courts possess the authority to grant discretionary evidentiary hearings on the veracity of search warrant affidavits and a trial court’s decision to hold a veracity hearing is subject to review only for an abuse of discretion.” Franklin, Mich at 110-111 (concluding that the trial court did not abuse its discretion in granting an evidentiary hearing on the defendant’s motion to quash the search warrant on the ground “that the affiant had failed to supply sufficient information to demonstrate that the [confidential informant mentioned in the affidavit] was credible”).
“In order to prevail on a motion to suppress the evidence obtained pursuant to a search warrant procured with alleged false information, the defendant must show by a preponderance of the evidence that the affiant had knowingly and intentionally, or with reckless disregard for the truth, inserted false material into the affidavit and that the false material was necessary to a finding of probable cause.” People v Stumpf, 196 Mich App 218, 224 (1992). This rule also applies to material omissions from affidavits. Id. See Mullen, 282 Mich App at 22-27, where the Court of Appeals held that probable cause existed to issue a search warrant despite a police officer’s intentional or reckless omission of material information from the affidavit and his intentional or reckless inclusion of false information in the affidavit. In Mullen, the defendant was stopped and arrested for operating a motor vehicle while intoxicated. Id. at 20. The arresting police officer filed an affidavit seeking a search warrant to test the defendant’s blood alcohol content. Id. at 19. The trial court determined that the officer both included false information in and omitted material information from the affidavit. Id. at 23. For example, although the officer failed to properly conduct a few of the field sobriety tests, the officer indicated that the defendant performed poorly on the tests. Id. at 20. In addition, the officer failed to indicate that the defendant had a piece of paper in his mouth a few minutes before taking a preliminary breath test (PBT). Id. The Michigan Court of Appeals agreed with the trial court’s factual determinations, but disagreed with its decision to suppress the evidence because:
“the evidence presented . . . did not establish that the 0.15 PBT test result was significantly unreliable as to preclude the reasonable belief by a police officer or a magistrate that defendant’s blood might contain evidence of intoxication. Given the absence of any basis to significantly call into question the 0.15 PBT result, and given the other circumstantial evidence that defendant was intoxicated, we find that the circuit court erred by determining that a reasonable magistrate would not have found probable cause to issue a search warrant.” Mullen, 282 Mich App at 28.
“Where the defendant challenges the truth of facts alleged in the affidavit, our courts have struck only the challenged portions of the warrant or its affidavit. In those cases, if enough substance remains to support a finding of probable cause the warrant is valid.” People v Kolniak, 175 Mich App 16, 22 (1989).
C.Affidavits Based upon Hearsay Information
An affidavit may be based on hearsay information supplied to the affiant by a named or unnamed person, subject to the following requirements:
“(a) If the person is named, affirmative allegations from which the judge or district court magistrate may conclude that the person spoke with personal knowledge of the information.
(b) If the person is unnamed, affirmative allegations from which the judge or district court magistrate may 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.
1.Informant Must Speak with Personal Knowledge
“In general, the requirement that the informant have personal knowledge seeks to eliminate the use of rumors or reputations to form the basis for the circumstances requiring a search.” People v Stumpf, 196 Mich App 218, 223 (1992). “The personal knowledge element should be derived from the information provided or material facts, not merely a recitation of the informant’s having personal knowledge.” Id. “If personal knowledge can be inferred from the stated facts, that is sufficient to find that the informant spoke with personal knowledge.” Id. See also People v Martin, 271 Mich App 280, 302 (2006) (“[p]ersonal knowledge can be inferred from the stated facts”).
2.Informant Must Be Credible or Information Must Be Reliable
“MCL 780.653(b) derives from the defunct ‘two-pronged test’ enunciated by the United States Supreme Court in Aguilar v Texas, 378 US 108[](1964), and Spinelli v United States, 393 US 410[](1969), for determining whether an anonymous informant’s tip established probable cause for issuance of a search warrant.” People v Hawkins, 468 Mich 488, 501 (2003). “Under the Aguilar-Spinelli formulation as it was generally understood, a search warrant affidavit based on information supplied by an anonymous informant was required to contain both (1) some of the underlying circumstances evidencing the informant’s basis of knowledge and (2) facts establishing either the veracity or the reliability of the information.” Hawkins, 468 Mich at 501-502.
In Illinois v Gates, 462 US 213 (1983), “the United States Supreme Court abandoned the Aguilar-Spinelli two-pronged test in favor of a ‘totality of the circumstances’ approach.” Hawkins, 468 Mich at 502 n 11. “Accordingly, in determining whether a search warrant affidavit that is based on hearsay information passes Fourth Amendment muster, ‘[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” Id., quoting Gates, 462 US at 238.
A statement in the affidavit that the informant is a “credible person” does not satisfy the statutory requirement set out in MCL 780.653(b). People v Sherbine, 421 Mich 502, 511 n 16 (1984), overruled on other grounds by People v Hawkins, 468 Mich 488 (2003).
Examples of factual information that is probative of “informant credibility” include:
•A course of past performance in which the informant has supplied reliable information;
•Admissions against the informant’s penal interest; and
•Corroboration of non-innocuous details of the informant’s story by reliable, independent sources or police investigation. Sherbine, 421 Mich at 510 n 13.
The statutory alternative of “informational reliability” must also be established by factual averments in the affidavit. In most cases, once “informant credibility” is established, it logically follows that the information is reliable, and vice versa. However, a subtle distinction may be drawn in situations where the method of procuring the information is unknown. In Spinelli, 393 US at 416, the United States Supreme Court explained:
“In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.”
Thus, by describing the criminal activity in detail, the reliability of the information can be proven independent of informant credibility.
When, in addition to information obtained from an anonymous informant, an affidavit in support of a search warrant is based on other information sufficient in itself to justify the judge or district court magistrate’s finding of probable cause, it is not necessary for purposes of MCL 780.653 to determine whether the informant was credible or whether the information provided was reliable. People v Keller, 479 Mich 467, 477 (2007). In Keller, marijuana discovered in the defendants’ trash was itself sufficient to support the conclusion that there was a fair probability that evidence of illegal activity would be found in the defendants’ home. Id. at 477. Even though an anonymous tip prompted the initial investigation into the defendants’ possible illegal activity, the marijuana alone supported the probable cause necessary to issue a search warrant and “the statutory requirement that an anonymous tip bear indicia of reliability d[id] not come into play.” Id. at 483.