Opinion
Docket No. 86615.
Decided December 2, 1986.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Deputy Chief, Civil and Appeals, for the people.
Craig A. Daly, for defendant.
Defendant was charged with possession of more than 225, but less than 650, grams of cocaine with intent to deliver. MCL 333.7401(1), (2)(a)(ii); MSA 14.15(7401)(1), (2)(a)(ii). A motion to suppress the evidence was filed and an evidentiary hearing conducted thereon. During the course of that hearing, it was discovered that the affidavit offered to support the issuance of the search warrant had not been signed. As a result of this defect, the trial court granted the motion to suppress, relying upon People v. Goff, 401 Mich. 412; 258 N.W.2d 57 (1977). The prosecutor appeals from this ruling.
As noted by the prosecution, the issue presented here is identical to that considered by this Court in People v. Verneida Mitchell, 142 Mich. App. 518; 370 N.W.2d 392 (1985), lv gtd 425 Mich. 871 (1986). Mitchell contained the following observations of the Supreme Court case relied upon by the trial court in granting the motion to suppress:
In Goff, the Court articulated a technical, procedural requirement that the affidavit supporting a search warrant had to be signed by the affiant. But Goff was decided in 1977. We are inclined to believe that the purpose of the rule was primarily to impress upon police departments the necessity of careful, full compliance with the warrant requirements. In large part, that purpose has been served.
Now, in 1985, it is clear that, in balancing competing interests, the United States Supreme Court in Leon [ United States v. Leon, 468 U.S. 897; 104 S Ct 3405; 82 L Ed 2d 677 (1984)], believes that bringing all admissible evidence before a jury or judge is paramount to "educating" police by throwing out evidence on what seems a hypertechnical basis. We do not believe the extremely prophylactic rule articulated by the Supreme Court in Goff was intended to be etched in stone for perpetuity.
On the contrary, we believe the time has come for reconsideration and abandonment of a rule whose purpose has been served. To that end, we decline to hold invalid a warrant the affidavit for which was unsigned. Rather, we remand this case to the trial court for an evidentiary hearing to determine whether, in fact, there was an adequate basis for issuance of the search warrant. If there was, consistent with this opinion, the affidavit supporting the search warrant may be signed and sworn to nunc pro tunc, and all orders suppressing evidence on the basis that the affidavit was unsigned shall be reversed. [ 142 Mich. App. 521-522.]
We agree with the observations of the Mitchell Court and believe the same approach should be taken here. Therefore, we remand this case to the trial court for purposes of conducting a hearing to determine whether an adequate basis existed for the issuance of the warrant, and, if so, the affidavit may be signed, as in Mitchell, and the suppression order reversed.
Reversed and remanded for proceedings not inconsistent with this opinion.
M.J. KELLY, P.J., concurred.
Although fully agreeing with both the wisdom and the logic of the majority, I must respectfully dissent from that opinion and would affirm the decision of the trial court. In People v. Goff, 401 Mich. 412, 413-414; 258 N.W.2d 57 (1977), the Supreme Court unanimously held:
We conclude, as a matter of policy, that a signature is needed. After November 30, 1977, an affidavit supporting a search warrant, issued pursuant to MCLA 780.651; MSA 28.1259(1), must be signed by the affiant. A search warrant based on an unsigned affidavit will be invalid. [Emphasis added.]
In the recent case of People v. Sherbine, 421 Mich. 502; 364 N.W.2d 658 (1984), our Supreme Court reaffirmed its overriding concern that search warrant affidavits conform to all specific statutory particulars, while disapproving the more subjective standard for review espoused by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213; 103 S Ct 2317; 76 L Ed 2d 527 (1983).
The Supreme Court has granted leave to appeal in People v. Verneida Mitchell, 142 Mich. App. 518; 370 N.W.2d 392 (1985), relied on by the majority. 425 Mich. 871 (1986). Therefore a reexamination of the rule established in People v. Goff, and the conflict raised between Goff and this Court's opinion in Mitchell, is underway. It is my view that until it is overturned by the Supreme Court, Goff stands as binding precedent in this case and the trial court should be affirmed.