Appendix — Wolfe v. United States
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3u The
Supreme Court of Che United States
4
RONALD NAPOLEON WOLFE, SR.,
Petitioner,
Ve
UNITED STATES OF AMERICA,
Respondent.
Petition For A Writ Of Certiorari
To The United States Court of
Appeals For The Sixth Circuit
+
APPENDIX
PETITION FOR A WRIT OF CERTIORARI
+
*KENNETH G. MCINTYRE
SINAS, DRAMIS, BRAKE,
BOUGHTON & MCINTYRE, P.C.
3380 Pine Tree Road
Lansing, Michigan 48911-4207
(517) 394-7500
Attorney for Petitioner
*Counsel of Record
May, 2001
LEGAL ADVANTAGE © 432 Walnut Street » Cincinnati, OH 45202
(800) 581-2252
Sok etal RNa pee
| Table of Appen<ix Contents
OPINIONS, ORDERS, FINDINGS OF FACT
AND CONCLUSIONS OF LAW:
U.S. District Court, Eastern District of Michigan,
Southern Division Filings:
Memorandum Opinion and Order Denying
Defendant’s Motion to Suppress Fruits
of a State Search Warrant Issued by
U.S. District Court Judge Paul V. Gadola,
ES ig ee ee a ok ea os Al-46
Memorandum Opinion and Order Denying Defendant’s
Amended and Supplemental Motion to Suppress ©
the Fruits of a State Search Warrant,
ST SPE 6 ae 2 5s CR SES Bee B1-29
OTHER OPINIONS, ORDERS, FINDINGS OF FACT
AND CONCLUSIONS OF LAW:
State of Michigan, Circuit Court, County of Livingston Filing:
Opinion and Order [Suppressing the
12/23/96 Seizure of Marijuana from
Defendant-Appellant’s Home] Issued
by Judge Daniel A. Burress,
INN Seon as An a Gg wm wk wks C1-55
OTHER OPINIONS, CONTINUED:
State of Michigan, Court of Appeals Filing:
Unpublished Per Curiam Opinion,
Hled GWIDOD .. sis ane eee eee eee? D1-11
Michigan Supreme Court Filing:
Order Denying Livingston County's Application
for Leave to Appeal the Michigan Court of
Appeals 9/17/99 Decision,
filed 1/2100 .....5caewe eee eee eee El-1
JUDGMENT SOUGHT TO BE REVIEWED:
Sixth Circuit Court of Appeals Filing:
Decision Affirming Judge Gadola’s 9/1/98 and
1/13/99 Decisions Denying Motion to Suppress,
filed 10/11/4000. ccc cece ene sccsseceses F1-22
ORDER ON REHEARING:
LZRYVESE? eee
Sixth Circuit Court of Appeals Filing:
Order Denying Petition for
Rehearing En Banc,
filed 1/12/01... sa 005 ee eee Gl1-2
CONSTITUTIONAL PROVISION & STATUTES:
CONSTITUMONAL EES Oe
Amendments 4, 5, & 6
to the U.S. Constitution ......------seerree H1-2
Federal Statutes 28 USC §1738,
M.C.L. A. §780.655 & §780.656 ......----+--- 11-3
OTHER APPENDED DOCUMENTS:
State of Michigan, Livingston County Circuit Court:
Write-ups of Interviews Conducted by
Detective Perry [Pre-Search Investigation],
filed 1/7/95 through 12/18/96 ..........+-5:5 Ji-12
Affidavit For Search Warrant [DX#1],
Se CUE acc peck soe eksn 6 ao 08 ena K1-12
Search Warrant [DX #2],
CISD nc cc ccc veeeesenasoesenees L1-2
Police Report of Detective Perry’s
Contact with ATF Agent Evans,
Es an ne dw 6 0 0 0 dine 0 6 0.0.9.0 M1-2
First Superseding Indictment,
EN ic, cd o'sce debe seat enna te e¥s N1-2
State of Michigan, Livingston County Circuit Court
Excerpts of Trial Testimony:
Detective Al Perry, 2/9/98 .........--5++5:> 01-20
Detective Al Perry, 2/10/98 ........---+--++: P1-22
Detective Al Perry, 2/11/98 .........--++-: Q1-30
Assist. Prosecutor Daniel Garber, 2/23/98 ...... R1-7
Harold VanPatten, 3/6/98 ............--00+5- S1-5
Ron Wolfe, Sr., 3/18/98 .......---- ee ener T1-4
Judge Michael Hegarty, 3/18/98 .........--. U1-13
Marie Wolfe, 3/18/98 ........--+--eeeeee: V1-8
U.S. District Court, Judge Gadola,
Excerpts of Testimony:
Opening Statements of Counsel and
Testimony, Detective Al Perry, 7/30/98 ........ W1-9
Detective Al Perry, 7/31/98 ............... X1-67
Judge Michael Hegarty, 7/31/98 ............ Yi-11
U.S. District Court Excerpted Filings:
Motion to Suppress,
oe ie ee Ga ones a ees Z1-3
Brief in Support of Motion to Suppress,
[including an Affidavit of Petitioner],
ke AE Oe Pe OPEL re rr eer AAI-14
Supplemental Motion to Suppress,
Tt ar ne nae ee BB1-14
Government’s Response to Petitioner’s
9/30/98 Supplemental Motion,
Pe I ie oe o's es see he CC1-5
Petitioner’s Response to the Government’s
10/23/98 Response to Supplemental Motion,
ls cg A ee ee eee ee DD1-62
Judge Gadola’s Order Striking
Defendant’s 11/20/98 Response
a ee a FE1-3
Argument of Petitioner’s 9/30/98
Supplemental Motion,
i ee er ORE See Or as Ni FF1-26
Sixth Circuit Court of Appeals Filings:
Defendant-Appellant’s Original Brief,
filed HAS ES Re GG1-7
Defendant-Appellant’s Reply Brief,
an TIP as Ua a ee HH1-6
Defendant-Appellant’s Suggestion
for an En Banc Rehearing,
eG SUSU 6 ee ee ie 111-8
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
CASE NO. 97-50065
vs. HONORABLE PAUL V. GADOLA
U.S. DISTRICT JUDGE
RONALD NAPOLEON WOLFE, SR.,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT’S MOTION TO SUPPRESS
FRUITS OF A STATE SEARCH WARRANT
Defendant has filed a motion to suppress the fruits
of a state search warrant. Evidentiary hearings were held
on the instant motion on July 30, July 31, and August 24,
1998. For the reasons set forth below, defendant’s motion
to suppress fruits of a state search warrant will be denied.
FACTUAL BACKGROUND
The search warrant at issue in the case at bar was
based on a six-page affidavit prepared on December 19,
1996 by Daniel Garber, Chief Assistant Prosecutor for
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Livingston County. It was signed on December 23, 1996
by Detective Allan Perry, who was during the relevant time
period, a Deputy with the Livingston County Sheriff's
Department. Perry was engaged in an investigation of
various larceny and fraud crimes in which the defendant and
others were suspects.
Judge Michael K. Hegarty of the 53rd District Court
for the State of Michigan issued the search warrant. It
authorized a search of the defendant’s entire premises in
Howell, Michigan, including:
The residence and outbuildings commonly referred
to as 5753 Fisher Road; said premises include[] a
multi story log construction residence located on the
west side of Fisher Road in Section 1 of Howell
Township, Livingston County, a gray barn with a
brown roof having living quarters in the upper story
that is located South of the log constructed
residence, a new pole barn with a dark shingled roof
and OSB siding located southeast of the log
constructed residence and a gray airplane hangar
structure with a steel roof located north/northeast of
the log constructed residence.
The property to be searched for and seized pursuant to the
warrant included the following items:
{djocuments or evidence indicative of the ownership
or occupancy of the above premises; insurance
records including contracts, claim forms and
payment forms; bales of hay; golf carts; records
relating to building materials for the structures on
the premises; shingle samples; building material
samples, photographs; records relating to the
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possession, ownership or registration of vehicles,
records or evidence relating to horse ownership,
sales or veterinary treatment.
On December 23, 1996, officers from the Livingston
County Sheriff's Department, Michigan State Police and
Brighton State Police went to defendant’s premises to assist
in the entry of the premises and/or execution of the warrant.
After entering the house, defendant was arrested. His wife,
Marie Wolfe, was given a copy of the search warrant to
review.
During the execution of the warrant, Perry went to
the basement of defendant’s residence where Perry located
a large (approximately 10 feet by 17 feet) locked vault
concealed behind a moveable shelf unit. Perry knew about
this vault prior to the search. Officers asked defendant's
wife for the combination to the vault. Marie Wolfe did not
assist the officers, so they called the defendant. Defendant
by that time had been arrested and taken from his home to
the Livingston County Jail. Defendant provided the officers
with the combination to the vault’s door, after being denied
the opportunity to consult with an attorney over the matter.
In the vault, the officers found and seized a long
"plant growing light," a water pump, electric timers, a
humidity gauge, 8 plastic pots and 17 marijuana growing
plants. Also inside the vault the officers found scores of
firearms. After locating receipts for only twelve weapons,
the officers seized 86 firearms.
The guns seized on December 23, 1998 were later
examined the Federal Bureau of Alcohol, Tobacco, and
Firearms (hereinafter "Bureau of ATF" or "ATF") which
reported that they included: at least 13 unregistered
automatic weapons; one unregistered sawed-off rifle; two
unregistered pen guns; three unregistered silencers; and two
stolen firearms.
Defendant, who is a Class III federally-licensed
firearms dealer, ultimately was charged in federal court with
21 counts of firearms charges, including 18 counts of
possession of unregistered firearms in violation of 26
U.S.C. § 5861(d), one count of possession of a short-
barreled rifle in violation of 26 U.S.C. § 5861(d), one count
of possession of a stolen firearm in violation of 18 U.S.C.
§ 922(j), and one count of failure to record a firearm
transaction in violation of 18 U.S.C. § 922(m).'
Presently before this Court is defendant’s motion to
suppress the fruits of the state search warrant. Specifically,
defendant seeks suppression of the firearms upon which the
charges in the present indictment are based.
'Defendant was also charged in Livingston County
Circuit Court with state crimes pertaining to stolen goods
and marijuana.
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that:
ANALYSIS
Defendant raises a host of arguments in support of
his motion to suppress the firearms. These include assertion
i
r A
The affidavit was not properly sworn to by
Detective Perry;
The affidavit contained false or misleading
assertions of material fact;
The affidavit was not sufficient to support a
‘finding of probable cause because it did not
provide the magistrate with any basis for
evaluating the credibility of the informants
and did not allege any facts tending to
establish the evidence of wrongdoing in the
defendant’s home;
The good faith exception to the warrant
requirement is not applicable here because
the magistrate acted as a "rubber-stamp" for
the police and because the officers who
executed the warrant did not rely in "good
faith" on the warrant;
The search of the vault and seizure of the
firearms were not otherwise valid absent a
warrant since defendant did not voluntarily
consent to the search of the vault;
Seizure of the firearms was improper because
the warrant did not provide for seizure of
such items and because the plain view
exception to the warrant requirement is
inapplicable; and
M.C.L. § 780.656, "Breaking of doors and
windows," was violated.
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Each of these arguments will be analyzed and discussed
seriatim.
1. DETECTIVE PERRY PROPERLY SWORE TO
THE AFFIDAVIT.
Defendant contends that the search violated the
Fourth Amendment since Detective Perry allegedly never
swore to the document which provided the basis for Judge
Hegarty’s issuance of the search warrant. The Fourth
Amendment specifically requires that "no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation." U.S. Const., Amdt. 4 (emphasis added).
This Court finds that defendant has not met his
burden of proving that Detective Perry was not duly sworn
by Judge Hegarty. The Court is satisfied that Detective
Perry attested to the truth of the contents of the "affidavit
For Search Warrant" in a telephone call to Judge Hegarty
on the morning of December 23, 1996, prior to the time
Judge Hegarty issued the search warrant. Telephonic oaths
are permissible under Michigan law. See M.C.L. §
780.651; People v. Snyder, 181 Mich. App. 768, 772-74
(1989) (interpreting M.C.L. § 780.651 and holding that oath
required to be taken by police officer requesting search
warrant was not required to occur within presence of issuing
judge, but could be given over the telephone).
Perry testified in this Court on July 30, 1998, that,
although he does not have any independent recollection of
the event, he believes that he called Judge Hegarty during
the early morning hours of December 23, 1996. Perry
testified that Judge Hegarty’s procedure was to instruct
Perry to raise his right had and attest to the contents of the
"Affidavit for Search Warrant" over the telephone. After
taking the oath over the telephone, the affidavit and search
warrant would either be faxed or delivered to Judge Hegarty
for his signature. In this instance, Perry is convinced that
the affidavit was delivered to Judge Hegarty for his
signature, since Judge Hegarty’s fax machine was broken.
Previously, when examined on this precise issue in
state court, Perry testified that he personally swore to the
affidavit at Judge Hegarty’s residence in Hartland, Michigan
on the morning of December 23, 1996. The Court does not
find this contrary testimony to be accurate. Perry’s current
testimony was very credible. This Court is satisfied that
Perry made a mistake when he testified earlier in state court
that he personally took the affidavit to Judge Hegarty’s
home on December 23, 1996. Perry admitted that the
reason he had earlier testified differently was that he was
confusing the affidavit and warrant at issue with another
affidavit and search warrant (possibly one for a trailer park
on Grand River). The Court finds such an explanation
plausible. The event at issue took place over two years ago
and it is understandable that Perry’s memory was not clear
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on this issue. In fact, Judge Hegarty conceded during his
testimony on March 18, 1996 that his memory as to what
transpired on December 23, 1996 was "hazy" as well, and
that he, like Perry, could not recall whether Perry had been
in his living room on December 23, 1996 and given the
oath in person. Judge Hegarty recalled that Perry was in
his living room on one occasion and that all the occasions
"kinda blend together." Testimony of Judge Hegarty,
March 18, 1996, p. 26.
Mover, Perry’s most recent version of the events is
corroborated by the testimony of Deputies James Bolling
and Michael Hawry. On March 11, 1998, these two
deputies testified that they, not Detective Perry, took the
affidavit to the home of Judge Hegarty, on Hope Lake in
Brighton Township, on the morning of December 23, 1996.
Although they offered different versions of why Perry asked
to hand-deliver the affidavit to Judge Hegarty as opposed to
faxing it, (Deputy Bolling testified that the affidavit and
search warrant could not be faxed because they were too
long), both verified that it was Perry who requested that the
affidavit and search warrant be delivered. F urthermore, the
log books confirm that Deputies Bolling and Hawry, and
not Perry, delivered the search warrant to Judge Hegarty.
The testimony of Judge Hegarty also convinces this
Court that Perry was properly given an oath. Judge Hegarty
testified that a telephone call would always be placed to
him before an affidavit and search warrant were delivered
A-8
to his home. See Testimony of Judge Hegarty, March 18,
1998, p. 28. In fact, Judge Hegarty indicated that no police
officer in their right mind would come to his residence
early in the morning with alerting him, first, by telephone.
Thus, Perry must have placed the call before he deputies
took the warrant to the Judge’s home. Judge Hegarty also
testified that he never would have signed the search warrant
without first swearing Allan Perry, and thus he must have
given Perry an oath during the phone call. See Testimony
of Judge Hegarty, March 18, 1998, p. 59. Judge Hegarty
also testified that it was common practice to give oaths over
the phone and that if he initially forgot, he would soon
remember and rectify the situation. See Testimony of Judge
Hegarty, March 18, 1998, p. 25-27.
In summary, this Court finds that an oath was given
to Detective Perry by Judge Hegarty over the telephone on
December 23, 1996, as permitted under Michigan law and
prior to the time Judge Hegarty signed the affidavit and
issued the search warrant.
2. THE AFFIDAVIT SWORN TO BY DETECTIVE
PERRY ON DECEMBER 23, 1996 IS NOT
INVALID ON THE BASIS OF DEFENDANT’S
CLAIM THAT IT CONTAINED FALSE OR
MISLEADING ASSERTIONS OF MATERIAL
FACT.
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Defendant also argues that the search warrant is
invalid because the affidavit in support thereof contained
false or misleading assertions of material fact necessary to
the finding of probable cause. The Court does not find any
merit in this contention.
In Franks v. Delaware, 438 U.S. 154 (1979), the
Supreme Court held that a search based on a warrant that
contains deliberately or recklessly false allegations is invalid
unless the remaining portions of the affidavit provide
probable cause. /d. at 155-56; see also United States v.
Charles, 138 F.3d 257 (6th Cir. 1998). The Sixth Circuit
has applied the Franks v. Delaware holding to conclude that
"a court considering whether to suppress evidence based on
an allegation that the underlying affidavit contained false
statements must apply a two-part test: (1) whether the
defendant has proven by a preponderance of the evidence
that the affidavit contains deliberately or recklessly false
statements and (2) whether the affidavit, without the false
statements, provides the requisite probable cause to sustain
the warrant." Charles, 138 F.3d at 263 (emphasis added);
see also United States v. Skinner, 972 F.2d 171, 175 (7th
Cir. 1992).
Defendant maintains that the following assertions in
the affidavit were deliberately and recklessly false:
1. Bottom of Page 1: "Affiant along with other
officers from the Livingston County
Sheriff's Department, the Michigan State
Police and the Federal Alcohol and Tobacco
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and Firearms Division has been conducting
an investigation relating to certain larceny
and fraud crimes... .”
Bottom of Page 2: ". . .[TJhe hay was
unloaded and subsequently stacked in the
airplane hangar structure. . . ."
Bottom of Page 2: "[A]ffiant has personally
verified that numerous pime trees are in the
vicinity on the premises."
Top of Page 3: "Van Patten noted that both
Ronald Napoleon Wolfe and Ronald
Napoleon Wolfe, Jr. were armed with
automatic pistols at the time of the theft of
the hay."
Top of Page 3: "Affiant has personally
verified that Wolfe has livestock on the
premises to be searched which utilize hay as
part of their diet."
Middle of Page 3: "Van Patten indicated that
Ronald Napoleon Wolfe, Ronald Napoleon
Wolfe, Jr., and Richard Herbert Culbert
subsequently admitted that those materials
had been stolen from the Byron Road
construction site."
Top of Page 5: "Affiant has verified through
serial numbers that the golf cart in Harp’s
possession was one of the two carts stolen
from the Oak Pointe Golf Course on January
7, 1995."
Middle of Page 5: "Van Patten was provided
a photograph of the pinto horse obtained
from Jean Wainscott and Van Patten
positively identified that horse as being one
of the two in the stable during the time."
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Defendant also claims that the following information was
deliberately omitted from the affidavit in an effort to
persuade the judge to issue the search warrant:
1. There was no allegation that Harp
participated in the golf cart theft.
y The affidavit did not state that Ms.
Wainscott, the owner of the alleged stolen
horses, had alerted the operator of the
Michigan Horse Auction to watch for her
stolen horses after she discovered they were
missing. The operators never contacted Ms.
Wainscott to tell her that the horses were at
the Auction.
This Court does not find that defendant has met his
burden of showing by a preponderance of the evidence that
any of these averments or omissions, even if false, were
made deliberately or recklessly or were material to a finding
of probable cause. First, defendant contends that the
averment that the Bureau of ATF was conducting an
investigation relating to larceny and fraud crimes was false
because the ATF was not conducting such an investigation.
Defendant maintains that only the Livingston County
Sheriff's Department and the Michigan State Police were
involved in such an investigation. This Court finds no
purposeful or reckless falsity in that averment. At the
evidentiary hearing, Allan Perry testified that during the
investigation of larceny and fraud crimes, he learned that
defendant possessed and carried weapons, and Perry made
inquires of Agent Evans of the Bureau of ATF regarding
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weapons. Also, Daniel Garber testified on February 23,
1998 in Livingston County Circuit Court that the ATF was
giving advice to the Livingston County Sheriff's
Department with respect to various firearms suspected to
have been used in larceny and fraud crimes committed by
the defendant and others. See Testimony of Daniel Garber,
February 23, 1998, p. 83. Therefore, the Bureau of ATF
was certainly involved in the investigation of various
larceny and fraud crimes and, at least to a limited degree,
was "conducting" and investigation relating to larceny and
fraud crimes. In retrospect, perhaps the word "conducting"
was not the most appropriate word to use in the affidavit.
The word "involved" may have been more appropriate.
However, there has been no showing that such a word
choice was used in an attempt to mislead the judge. To the
contrary, the error seems to be at most negligent.
Assuming arguendo that the assertions were
deliberately or recklessly false, it would not upset a finding
of probable cause that defendant committed any of the
crimes described therein or that the items to be searched for
would be found on the premises. Such a representation was
virtually immaterial to the affidavit. The fact of the matter
is that other state agencies were investigating the defendant
for larceny and fraud crimes, and this was made explicit in
the affidavit.
Second, defendant asserts that the statement in the
affidavit that "the hay was unloaded and subsequently
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stacked in the airplane hangar" was false. Defendant points
out that the police report does not state that the hay was
stacked in the airplane hangar. The Court finds that the
Statement in question was not false. Harold Van Patten
testified that the hay was stacked a day after it was stolen
and that he informed Perry of this. See Testimony of
Harold Van Patten, March 6, 1998, p. 188.
Defendant also contends that the statements by Perry
in the affidavit that he had "personally verified" that
numerous pine trees were in the vicinity of the premises,
and that he had a‘so "personally verified" that the defendant
had livestock on the premises were false. The Court finds
no deliberate or reckless disregard for the truth in these
averments. Perry testified that while he personally did not
visit the premises and observe pine trees and livestock there
prior to his signing of the affidavit, he was aware that there
were pine trees on the premises because Roger
Swackhammer had told him so and he was aware that there
was livestock on the premises from interviews with William
Harp and Harold Van Patten. Additionally, Perry testified
at the evidentiary hearing that pine trees were seen during
a "fly over" of the premises in which he participated and
prior to the time the search warrant was signed.
Perry, in some sense, had verified that there were
pine trees and livestock on the premises, although not
personally, but through his conversations with others.
Indeed, both Daniel Garber, the drafter of the affidavit, and
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iaeeentn ee eT TT
Allan Perry, the aftiant, testified that "personal verification"
could mean the confirmation of a fact through speaking
with others. See Testimony of Daniel Garber, February 23,
1998, p. 21; Testimony of Allan Perry, February 10, 1998,
p. 75. In hindsight, the words "personally verified" should
not have been utilized. The important point is that this
erroneous word choice was not done in a deliberate or
reckless attempt to mislead. This Court finds no deliberate
or reckless disregard of the truth in this averment.
Defendant also asserts that the averment regarding
defendant’s admission to Van Patten about a theft of
building materials was deliberately or recklessly false.
Defendant points to the March 6, 1998 testimony of Harold
Van Patten that he never told Perry that defendant had
admitted to him that he stole building materials from the
Byron Road construction site. Harold Van Patten testified
that only Ronald Wolfe, Jr. and Richard Culbert admitted
to that theft. See Testimony of Harold Van Patten on
March 6, 1998, p. 142. Based on the testimony of Harold
Van Patten, the averment regarding defendant’s admission
to the theft of building materials does appear to be
incorrect. However, defendant has not shown that the
averment was deliberately or recklessly made. Assuming
arguendo that such a statement was deliberately or
recklessly false, there still remains, when the offending
statement is redacted, probable cause to believe that a theft
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of building materials occurred and that the building
materials were on the defendant’s premises.
Defendant also contends that another materially and
deliberately false averment is that Perry verified through
serial numbers that the golf cart in Harp’s possession was
one of the two carts stolen from the Oak Pointe Golf
Course on January 7, 1995. At the hearing on August 24,
1998, the government conceded that this Statement was
erroneous. Perry was never able to make that correlation
prior to the signing of the affidavit. See Testimony of
Allan Perry, February 11, 1998, pp. 26-29; Testimony of
Detective Robert Swackhammer, March 6, 1998, p. 22.
Nevertheless, there has been no evidence that this erroneous
assertion was made deliberately or with reckless disregard
for the truth. The statement has been Stipulated as
erroneous, and it does not upset a finding of probable cause
to believe that defendant participated in a theft of the golf
Carts.
Other information furnished in the affidavit provides
ample basis for the finding of probable cause to believe
defendant was involved in the theft of golf cards and that
a golf cart would be on his premises. The affidavit
provides the following assertions which, in an of
themselves, satisfy the probable cause requirement, to wit:
That the golf professional at Oak Pointe Golf Course
reported a theft of golf carats; that Harp admitted to Perry
that he and the defendant were involved in this crime; that
A-16
Perry was provided a photograph by Van Patten of a golf
cart on the defendant’s premises; and that Robert
Swackhammer observed the same.
Defendant contends that the affidavit’s assertion that
Van Patten had positively identified a photograph of a pinto
horse, which photograph had been obtained from Jean
Wainscott, was not true. Specifically, defendant takes issue
with the affidavit’s allegation that the source of the
photograph was Ms. Wainscott. Defendant contends that
the affidavit "filled in the blank" of the photo, and that the
source was unknown. The Court finds this argument
unavailing. The source of the photograph is immaterial.
What is material to the probable cause determination is that
Van Patten was shown a photo of the stolen horses and
positively identified the animals as being on defendant’s
property.
Defendant argues that he affidavit does not mention
the fact that William Harp not only "observed" the theft of
two golf carts by defendant and others, but also participated
in the theft. In that regard, so the defendant asserts, the
affidavit is false. The Court does not find the affidavit
false for that reason. The affidavit clearly conveyed the
fact that Harp participated in the theft. A finding that the
affidavit is faulty based on its failure to use the word
"participating" would amount to exactly the type of
hypertechnical review which was been condemned by the
Supreme Court. See Illinois v. Gates, 462 U.S. 213, 235-
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36, (1983); United States v. Ventresca, 380 U.S. 102, 109
(1965) (holding that "affidavits for search warrants .. .
must be tested and interpreted by magistrates and courts in
a common-sense and realistic fashion. They are normally
drafted by nonlawyers in the midst and haste of a criminal
investigation. Technical requirements of elaborate
specificity once exacted under common law pleadings have
no proper place in this area. A grudging or negative
attitude by reviewing courts toward warrants will tend to
discourage police officers from submitting their evidence to
a judicial officer before acting . . . [W]hen a magistrate has
found probable cause, the courts should not invalidate the
warrant by interpreting the affidavit in a hypertechnical,
rather than a common-sense, manner").
Defendant also complains that the affidavit contained
another material omission, to wit: that the owner of the
stolen horses, Ms. Wainscott, had alerted the operator of the
Michigan Horse Auction to watch for her stolen horses, but
no sighting of those horses was made at the auction.
Defendant argues that this omission was critical to a finding
of probable cause regarding the theft of horses, since the
affidavit implied that defendant sold the horses in the
Michigan Horse Auction on a Saturday. Defendant has not
proffered any evidence showing that such an omission was
deliberately or recklessly made in an effort to conceal the
truth. Moreover, the Court does not find this omission
material.
In summary, the Court does not find that defendant
has met his burden of showing, by a preponderance of the
evidence, that the affiant purposefully or recklessly inserted
materially false statements in the affidavit. Alternatively,
‘f all the statements which defendant asserts are deliberately
and materially false are redacted from the affidavit, the
Court still finds sufficient probable cause to believe that
defendant committed the crimes to which those statements
pertain and that evidence of those crimes would likely be
found on defendant’s premises.
3. THERE WAS PROBABLE CAUSE TO SEARCH
DEFENDANT’S ENTIRE PREMISE BASED ON
THE AFFIDAVIT.
__ Defendant also claims that the affidavit failed to set
forth sufficient probable cause to believe evidence of a
crime would be found on his premises and therefore the
search of his premises was invalid. This argument is two-
fold. First, defendant argues that the affidavit is not
sufficient to support a finding of probable cause to search
defendant’s premises because it fails to provide the
magistrate with any basis for evaluating the credibility of
the informants, Harold van Patten, Scott van Patten and
William Harp. Second, defendant argues that the affidavit
is insufficient to support a finding of probable cause to
search defendant’s residence because the criminal acts
A-19
alleged in the affidavit did not take place at defendant’s
residence and because there are no allegations in the search
warrant that any stolen items, records and documents were
ever seen in the defendant’s residence.* These arguments
will be addressed seriatim.
STANDARD OF REVIEW
The Fourth Amendment to the United States
Constitution states that "no Warrant shall issue, but upon
probable cause, supported by Oath or affirmation . . ." U.S.
Const., Amdt. 4. Probable cause to search has been defined
as a "fair probability" that contraband or other evidence of
a crime will be found at the place to be searched. Illinois
v. Gates, 462 U.S. 213, 238 (1983). See also United States
v. Savoca, 761 F.2d 292, 297 (6th Cir. 1985) (holding that
the "critical element in a reasonable search . . . is
reasonable cause to believe that the specific ’things’ to be
searched for and seized are located on the property to which
entry is sought") (citing Surcher v. Stanford Daily, 436 U.S.
The issue of whether the affidavit provided Judge
Hegarty with probable cause to believe that contraband or
evidence of crimes would be found at the defendant’s
residence is crucial to the analysis of whether the officers
had authority to seize the weapons from defendant’s gun
vault under the plain view doctrine. The issue of plain
view will be discussed infra.
A-20
547, 556 (1978), cert. denied, 474 U.S. 852 (1985)); United
States v. Lockett, 674 F.2d 843 (11th Cir. 1982) (holding
that the evidence was insufficient to support a finding of
probable cause to search for dynamite on defendant's
property without some showing that dynamite was being
stored there).
Probable cause is assessed in light of the "totality of
circumstances." Gates, 462 U.S. at 238. "The task of the
issuing magistrate is simply to make a practical common-
sense decision whether, given all circumstances set forth in
the affidavit before him, including the ’veracity’ and 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." Jd. A reviewing
court should not examine de nova the sufficiency of an
affidavit supporting a warrant. /d. at 236. Rather, "the
traditional standard for review of an issuing magistrate’s
probable cause determination has been that so long as the
magistrate had a ’substantial basis . . . for conclud{ing], that
a search would uncover evidence of wrongdoing, the Fourth
Amendment requires no more." United States v. Pelham,
801 F.2d 875, 878 (6th Cir.) (quoting Gates, 462 US. at
236), cert. denied 479 U.S. 1092 (1987). The reviewing
court should pay great deference to a magistrate’s probable
cause determination and should not set aside magistrate’s
finding of probable cause unless it is "arbitrary." United
States v. Weaver, 99 F.3d 1372, 1377 (6th Cir. 1996); see
A-21
also Massachusetts v. Upton, 466 U.S. 727, 732-33 (1984);
United States v. Pelham, 801 F.2d at 877 (citing United
States v. Swihart, 554 F.2d 264, 270 (6th Cir. 1977)). In
doubtful or marginal cases, the reviewing court should
uphold the magistrate’s finding. Lockett, 674 F.2d at 845.
The rationale for this deference stems from a preference for
the search warrant process over warrantless searches. Jd.
In Illinois v. Gates, 462 U.S. 213, 238 (1983), the
Supreme Court rejected the strict, two-pronged probable
cause test established in Aguilar v. Texas, 378 U.S. 108
(1964) and Spinelli v. United States, 393 U.S. 410 (1969).
That test required that a search warrant affidavit based on
an informant’s tip contain information regarding the
"reliability or credibility" of the informant and the "basis in
knowledge" of his or her tip. In Gates, the Supreme Court
explained that while these elements "’may usefully
illuminate the common-sense, practical question of whether
there is "probable cause" to believe that contraband or
evidence is located in a particular place,’ they should not be
‘[understood as entirely separate and independent
requirements to be] rigidly exacted in every case...
United States v. Pelham, 801 F.2d 875, 877 (6th Cir. 1986)
(quoting Gates, 462 U.S. at 230). Gates established that
courts must apply a "totality of the circumstances" approach
”
in determining the existence of probable cause. See /d
"Probable cause is a ’practical, nontechnical conception’
that deals with ’the factual and practical considerations of
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everyday life on which reasonable and prudent men, not
legal technicians act.’" Id. at 230-231 (quoting Brinegar v.
United States, 338 U.S. 160 (1949)).
ANALYSIS
Under the standard articulated in Gates, this Court
finds that Judge Hegarty had a sufficient basis for finding
probable cause to believe that defendant had been involved
in numerous crimes and that the items described in the
warrant would be found on defendant’s premises. First, this
Court finds that Judge Hegarty was given ample
information from which to determine that informants
William Harp and Harold Van Patten were credible. These
informants identified themselves to the authorities which
lends some credence to their accounts. In general,
information provided by a named informant is inherently
less suspect than that provided by an anonymous tip. See
Pelham, 801 F.2d at 878 (holding that information
contained in an affidavit provided a substantial basis for the
magistrate to find probable cause, in part because affidavit
was based on statements of a names informant).
In addition, the affidavit sets forth the basis of
William Harp’s and Harold Van Patten’s knowledge,
describing them as "past associates and acquaintances of the
[defendant]" who had "repeatedly" over the past several
years been on the searched premises. See Affidavit for
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Search Warrant, p. 2. The defendants also participated in
some thefts with the defendant. Indeed, the informants’
admissions to the thefts lends credence to their information.
See United States v. Golav, 502 F.2d 182, 186 (8th Cir.
1974) (holding that "the credibility and reliability of the
informant was adequately established by the disclosure in
the affidavit that the informant was an admitted participant
in the crime and therefore an eyewitness to most of the acts
constituting the crime as described in the affidavit").
Moreover, William Harp and Harold Van Patten provided
very detailed information, which tends to substantiate their
information. See Gates, 462 U.S. at 234 (holding that an
"explicit and detailed description of alleged wrongdoing,
along with a statement that the event was observed
firsthand, entitled [the informant’s tip] to greater weight
than might otherwise be the case’).
Another factor supporting the credibility of the tips
made by William Harp and Harold Van Patten is the fact
that those tips were corroborated to some degree by
independent police investigation. For instance, the account
by Harold Van Patten of the hay theft was corroborated by
the investigating deputy who located wagon tracks in the
field from which the hay was stolen heading in the direction
of defendant’s premises. Also, pine trees were confirmed
to be on the defendant’s premises, which corroborated Van
Patten’s description of the premises. The description of the
construction material thefts provided by Van Patten matched
A-2+4
the dates specified in the Livingston County Sheriff's
Department’s reports. Additionally, the thefts of the golf
carts were corroborated, to some degree, by Sgt.
Swackhammer’s observation of a golf cart on the Wolfe
premises. Finally, William Harp and Scott and Harold Van
Patten corroborated one another. William Harp and Harold
Van Patten both described a different theft in which they
participated with the defendant late in the evening, which
suggests a modus operandi of the defendant. Both William
Harp and Harold Van Patten stated that defendant
commonly carried handguns. Moreover, William Harp and
Harold Van Patten stated that windows were delivered to
the Wolfe premises in a piecemeal fashion by Ronald
Napoleon Wolfe.
The instant case stands in marked contrast to United
States v. Weaver, 99 F.3d 1372 (6th Cir. 1996). In that
case, the Court found that the affidavit supporting the
warrant did not provide the request probable cause that a
search of the defendant’s premises would uncover evidence
of wrongdoing. /d. at 1379-80. The only claim of possible
wrongdoing was the averment that "within three days prior
to the affidavit date, the informant was on the suspect
premises and while there, he saw some quantity of
marijuana ‘expressly for the purpose of lawful
distribution." Weaver, 99 F.3d at 1378. The only
independent corroboration conducted by the officers was to
verify the suspect’s name, address, and description of the
A-25
ee eR en yee ye
residence. In the instant case, more investigation was
conducted by the authorities. The two informants
corroborated each other. The informants provided their
names, and they implicated themselves in criminal acts.
Defendant argues that the magistrate was not
informed of one very important fact which purportedly
detracts from the credibility of these two informants, to wit:
that they had been given immunity by Prosecutor Garber.
The Court does not find this fatal to the probable cause
determination. William Harp testified that he first
implicated himself in criminal activity on December 6,
2996, when he spoke with Allan Perry. He was not
promised immunity, however until December 10, 1996. See
Testimony of William Harp, March 6, 1998, p. 32. In
addition, the immunity in and of itself would not necessarily
negate the value of the information furnished by these two
individuals.
A closer question is whether Judge Hegarty had
sufficient information from which he could assess the
reliability of Scott Van Patten. If Judge Hegarty had no
basis for finding Scott Van Patten reliable, then there was
no substantial basis for finding that an insurance fraud had
been committed. The affidavit states that Scott Van Patten,
Harold Van Patten’s brother, told Perry that defendant had
admitted to making an insurance claim and recovering
money for "stolen windows." Without Scott Van Patten’s
statement, all that the affidavit reveals is that windows were
A-26
stored at William Harp’s house and were removed
piecemeal by Ronald Wolfe Jr. and that Van Patten noted
that defendant’s house, then under construction, had been
framed and ready for windows by they were delivered
piecemeal by Ronald Wolfe Jr. Under the "totality of the
circumstances," this Court finds that Judge Hegarty had
probable cause to believe an insurance fraud had been
committed. The storage of windows at Harp’s residence at
a time when the building under construction was ready for
their installation and the delivery of those windows in a
piecemeal fashion to defendant’s premises are suspicious
circumstances. Thus, Scott Van Patten’s statement appears
credible. Additionally, it is implied in the affidavit that
Scott Van Patten spoke with defendant. As Scott Van
Patten is identified as a brother to Harold Van Patten, and
since Harold Van Patten is a close acquaintance to
defendant, it is very plausible that Scott Van Patten is also
acquainted with defendant.
Defendant also contends that the magistrate did not
have a substantial basis to believe that evidence of the
crimes would be in defendant’s residence, as opposed to
other buildings on his property, since the affidavit sets forth
no facts that the stolen goods or document in question had
been seen in the residence. The Court is not persuaded.
First, this argument rests on the faulty proposition that
before there can be probable cause to search a place, one
must directly observed the item to be searched for at the
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premises. It is well-settled that "the nexus between the
objects to be seized and the premises to be searched can be
established from the particular circumstances involved and
need not rest on direct observation." United States v.
Jenkins, 901 F.2d 1075, 1080 (11th Cir. 1990) (emphasis
added) (quoting United States v. Lockett, 674 F.2d 843, 846
(11th Cir. 1982)).
In light of United States v. Jenkins, this Court finds
that the affidavit provided probable cause to search the
residence. First, the affidavit established probable cause to
believe defendant resided at the premises to be searched and
had been involved in numerous crimes, including a theft of
building materials and horses. Thus, a search for "records
relating to building materials for the structures or premises"
and "records relating to horse ownership, sales or veterinary
treatment" would certainly be justified. See, e.g., United
States _v. Hargus, 128 F.3d 1358 (1997) (holding that
“receipts and other records" described in the search warrant
would be found at defendant’s house and that "there need
not be direct evidence or personal knowledge" that the items
sought are located at the place to be searched); United
States v. Reed, 726 F.2d 339 (3rd Cir. 1984) (holding that
because there was probable cause to believe crimes were
committed and because documents and records of those
crimes were most likely to be in the home, and since the
records were needed to corroborate crimes, the search of the
home was valid); United States v. Whitten, 706 F.2d 1000
A-28
(9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984)
(upholding a search for records of ownership where
multiple defendants were suspected of having utilized the
premises as a headquarters for large scale drug operations);
United States v. Crozier, 777 F. 2d 1376, 1380-81 (9th Cir.
1985) (upholding a search of "any indicia of ownership and
control of the premises").
For the reasons discussed above, this Court finds
that the affidavit set forth probable cause to believe an
insurance fraud had been committed by defendant.
Therefore, a search of the defendant’s residence for
"insurance records, claims forms and payment forms” was
justified. The most logical place for those records and
forms would be in defendant’s residence.
4. EVEN _IF THE AFFIDA’ ES NOT
T. IS BABLE CAUS D
FAITH EX ON _ TO THE W
REQUI NT__IS APPLICABLE TO
VALIDATE THE SEARCH IN THE CASE AT
BAR.
The government argues that even if the affidavit
does not establish probable cause for the search, the good
faith exception to the exclusionary rule applies to validate
the search of the premises, including the residence. See
United States v. Leon, 468 U.S. 897, 920-21 (1984), reh'g
A-29
denied, 468 U.S. 1250 (1984). Under the good faith
exception, set forth by the Supreme Court in United States
v. Leon, exclusion of evidence is improper when the
officers acted in objective, good faith reliance on a facially-
valid warrant. See Jd There are three specific situations,
however, where the good faith reliance exception does not
apply:
l. If the warrant is based on a knowing
or a reckless falsehood contained in the
supporting affidavit.
2. If the magistrate was acting as a mere
rubber-stamp for he police, or
3. If the information contained in the affidavit
did not add up to probable cause and the
affidavit was so lacking in indicia of
probable cause as to render official belief in
its existence entirely unreasonable.
United States vy. Savoca, 761 F.2d 292, 296 (6th Cir.), cert.
denied, 474 U.S. 852 (1985).
In the instant case, this Court finds that the good
faith exception applies. The officers executed the warrant,
from an objective standpoint, in reasonable reliance on a
facially valid warrant. Defendant contends that the
exception does not apply since Judge Hegarty was a mere
"rubber-stamp" for the police. Defendant points out that
Judge Hegarty issued the search warrant after reviewing the
affidavit for only five minutes. Judge Hegarty testified in
Livingston County Circuit Court on March 18, 1998 as
follows: |
A. At 7:10 I would have signed and dated and
time [the affidavit] and would have read it.
And after reading it, I woulda then signed the
warrant. After I found good cause.
Q. And the 7:15 a.m. on the search warrant
would be representative of what, sir?
A. The time after I read the affidavit, found
good cause and decided to sign the search
warrant.
Testimony of Judge Hegarty, March 18, 1998 at p. 29-30.
This Court does not find that Judge Hegarty acted as a so-
called "rubber-stamp" for the police for the following
reasons. The alleged five-minute review of the warrant
does not per se invalidate the judge’s probable cause
determination. It is certainly possible that Judge Hegarty
could have reviewed a six-page document in five minutes.
Additionally, Judge Hegarty admitted that the five minute
time-span was an approximate span of time. He testified
that he had read the affidavit in five minutes "give or take."
See Testimony of Judge Hegarty, march 18, 1998 at p. 30.
Furthermore, the facts presented in the case at bar
are not analogous to other situations in which courts have
found the "rubber stamp" exception applicable. See, e.g.,
United States v. Wilhelm, 80 F.3d 116, 121-22 (4th Cir.
1996). In Wilhelm, the Fourth Circuit held that the
magistrate had acted as a mere "rubber stamp" for the
A-31
police in approving a “bare bones affidavit,” one that
contained "wholly conclusory statements which lacks the
facts and circumstances from which the magistrate can
independently determine probable cause.” /d at 121
(quoting United States v. Laury, 985 F.2d 1293, 1311 n.23
(Sth Cir. 1993)). The affidavit at issue in that case
provided no meaningful corroboration, and merely described
telephone conversations with a "concerned citizen." /d.
The affidavit in the case at bar certainly cannot be described
as "bare bones." There is no evidence that Judge Hegarty
"wholly abandoned his judicial role" merely by reading the
affidavit quickly. See Lo-Ji Sales, Inc. v. New York, 442
U.S. 319, 326-27 (holding that a town justice who had
participated in search of an adult bookstore had failed to
demonstrate the required neutrality and detachment).
Therefore. this Court concludes that Judge Hegarty
was not acting as a mere “rubber stamp" for the police.
The Good Faith exception applies, so that even if the
warrant were to be found invalid, the police would be
justified in their reliance on it.
5. WHETHER THE DEFENDANT CONSENTED
TO A SEARCH OF THE VAULT IS MOOT.
In his brief in support of his motion to suppress,
defendant argues that he did not consent to the search of his
vault. This argument, however, is moot because the
A-32
—
government has never alleged, nor does it intend to allege,
that the search of the vault was authorized by defendant’s
consent.
6. SEIZ OF F Vv
UNDER THE PLAIN VIEW EXCEPTION TO
THE WARRANT REQUIREMENT.
The warrant at issue does not authorize the police to
search for and seize firearms. Thus, unless an exception to
the warrant requirement applies, the weapons must be
suppressed at defendant’s trial because their seizure was
beyond the scope of the warrant. The government argues
that the seizure of these items is valid under the plain view
exception to the warrant requirement. That exception
applies if the following requirements are met;
1. the firearms were in plain view;
y the incriminating character of the firearms
was immediately apparent, and
3. the firearms were viewed by an officer
lawfully located in a place from where the
object can be seen nd seized by an officer
who has a lawful right of access to the
object itself.
*As this Court has already determined, the affidavit
gave Judge Hegarty a substantial basis for finding probable
cause to believe various items described in the warrant
would be at defendant’s residence. Thus, the search of the
A-33 —
See Horton v. California, 496 U.S. 128, 142 (1990). It is
uncontested that the items were in "plain view," and this
Court has determined that the firearms were viewed by
officers who were lawfully present. Therefore, the crucial
issue become whether the "immediately apparent"
requirement has been satisfied. The Supreme Court has
equated "immediately apparent" with "probable cause."
Texas v. Brown, 460 U.S. 730, 741 (1983). It does not
mean, as defendant argues, that a police officer "knows"
that certain items are contraband or evidence of a crime.
- Id. Rather, it means that the officer must have "probable
residence was constitutional. More specifically, the search
of the gun vault was constitutional since it is conceivable
that the items described in the warrant would be located in
the gun vault. See Testimony of Allan Perry, February 9,
1998, p. 84, wherein Perry states that he was searching for
items authorized by the warrant in the gun vault.
Assuming arguendo that the warrant was invalid as
to the search of the residence, but that the Leon decision’s
good faith exception is applicable, this Court would still
find that the officers were lawfully searching the
defendant’s residence for purposes of the plain view
doctrine. See United States v. Legg, 18 F.3d 240, 244 (4th
Cir. 1994) (holding that "the rationale of Leon should apply
to render an officer lawfully present for purposes of
applying the plain view doctrine . . ."); see also United
States v. Owen, 621 F. Supp. 1498, 1508-1509 (E.D. Mich.
1985) (finding officers lawfully present for purposes of the
plain view doctrine if Leon is applicable).
A-34
Cause to associate the property with criminal activity." Jd
at 741-42. (quoting Payton v, New York, 445 U.S. 573, 587
(1980)). Indeed, the Supreme Court has recognized that
“the phrase "immediately apparent’ was very likely an
unhappy choice of words, since it can abe taken to imply
that an unduly high degree of certainty as to the
incriminatory character of evidence is necessary for an
application of the ’plain view’ doctrine." Jd
In light of the clarification. of the "immediately
apparent" prong in Texas v. Brown, this Court finds that |
Perry has probable cause to link the weapons in the gun
vault with criminal activity. This conclusion is further
supported by a number of factors. First, Perry testified that
he had no intention of seizing weapons during the search.
It was only after he discovered the weapons in the gun vault
that he determined there was probable cause to seize them.
The circumstances under which the guns were found gave
Perry probable cause to believe they were contraband. See
Testimony of Allan Perry, February 11, 1998, p. 217.
The government’s position is strengthened by its
citation of M.C.L. § 750.227 (b), "Possession of firearm at
time of commission or attempted commission of felony."
The government persuasively argues that the firearms were
lawfully seized because defendant, by placing the guns in a
hidden vault next to growing marijuana plants, was in
violation of M.C.L. § 750.227 (b). That section provides,
in pertinent part, that "[a] person who carries or has in his
A-35
or her possession a firearm when he or she commits or
attempt to commit a felony . . . is guilty of a felony, and
shall be imprisoned for 2 years." M.C.L. § 750.227 (b) (1).
Since defendant was feloniously growing marijuana and the
firearms were "in his possession" during the commission of
that offense, the police had independent grounds for
lawfully seizing the firearms. See /d.; see also United
States v. Meyer, 827 F.2d 943 (3d Cir. 1987) (watches
found in a crawl space during a search at a jewelry store for
stolen items after owner was asked, but could not produce,
evidence of ownership, were properly seized under plain
view exception). In addition, among the firearms were
silencers and sawed-off rifles, the legal possession of which
are so rare that the Sixth Circuit has held that there is
probable cause justifying their plain view seizure. See
United States v. Poulos, 895 F.2d 1113, 1122 (6th Cir.
1990) (holding that a properly registered silencer is
"intrinsically suspicious" and its incriminating nature
"immediately apparent"); United States v. Weinbender, 109
F.3d 1327 (8th Cir 1997) (holding that while executing a
search warrant for clothing, officer found home-made
silencer, the seizure of which was proper because possession
of a silencer is "illegal"); United States v. Wickizer, 633
F.2d 900, 902 (6th Cir. 1980) (holding that short-barreled
rifles were "obviously contraband" and properly seized
when found in plain view); United States v. Truitt, 521 F.2d
1174 (6th Cir. 1975) (holding that probable cause justifying
A-36
3
seizure of a sawed-off shotgun was "immediately apparent"
from the particular nature of the object).
It is also significant that Perry had been informed
that defendant used weapons when committing thefts.
Elsewhere on the premises were extensive evidence of such
thefts, as well as seven police uniform shirts, three police
uniform pants, a police jacket and a police badge with
defendant’s name, furthering a finding of probable cause to
believe the weapons in the vault were associated with
criminal activity. See United States v. Buckley, 4 F.3d 552,
557 (7th Cir. 1993) (holding that officers properly seized
weapons in plain view when they knew at the time they
executed the warrant that the defendant was a previous
felon); United States v. Jefferson, 714 F.2d 689, 695 (7th
Cir. 1983) (holding that "circumstances reasonably alerted
the officers to the possibility that the items were fruits of
another illegal activity"); United States v. Golay, 502 F.2d
182 (8th Cir. 1974) (holding that "the circumstances
presented . . . would have "reasonably alerted the police
officers to the fact that [the defendant] may have been
involved in some other illegal activity,’ the fruits of which
were before them"). Given all the circumstances under
which the firearms were found, including defendant’s
violation of M.C.L. § 750.227 (b), this Court finds that the
weapons’ incriminating nature was "immediately apparent"
to the officers.
A-37
‘Oi iii iam tana
Defendant attempts to analogize the instant case to
United States v. Szymkowiak, 727 F.2d 95 (6th Cir. 1984),
where the court found the plain view exception inapplicable
because the objects seized were not "immediately apparent."
Id. at 98-99. In Syzmkowiak, police officers obtained a
search warrant authorizing a search of defendant’s
apartment for jewelry and a television set. See Jd. at 96.
During the search, the officers found an AR-15 weapon
near a couch within the apartment. See /d. The agents
could not tell whether the gun was illegal, so they called a
federal ATF agent to the scene. The ATF agent told the
executing officers that the weapon did not violate federal
law, but that it "probably" violated state law. The officers
seized the weapon and further examination of it resulted in
a federal charge being filed against the defendant. The
Syzmkowiak court found that seizure of the AR-15 could
not be justified under the plain view exception and
suppressed the same. See /d. at 99. The court stated:
. we conclude that the executing officers’
probable cause to connect the seized weapon with
criminal activity was neither "immediate" or
"apparent." The incriminating nature of the
evidence seized as at no time "apparent" to the
seizing officers or agents. We note initially that no
"nexus" whatsoever exists between the seized
weapon and the items particularized on the search
warrant. See United States v. Gray, 484 F.2d 352,
355 (6th Cir. 1973), cert. denied, 414 U.S. 1158
a
A-38
(1984).* Further, our review of the record indicates
that even ATF agent Haverstick did not have
probable cause to believe from the intrinsic nature
of the seized weapon that the evidence was
incriminating. Haverstick, a firearms expert,
testified that he believed that possession of such a
weapon was not a federal offense. He also stated
that he could not determine from the exterior of the
weapon whether its possession violated Ohio law.
The possession of an automatic firearm in Ohio
violated O.R.C. § 2923.17. But Agent Haverstick
testified that he "could not Say at the time" that he
examined the weapon whether it was an automatic
firearm. (Transcript p. 65). He further testified that
he could not determine from his examination of the
evidence whether it was specifically adapted for
automatic performance. (Transcript pp. 77-80).
After Haverstick’s expert examination of the seized
weapon, he was able to determine that the firearm’s
Possession was not violative of federal law and was
‘In United States v. Gray, 484 F.2d 352, (6th Cir.
1973), the Sixth Circuit found unconstitutional the seizure
of rifles. In that case, the officers inadvertently discovered
rifles while executing a search warrant for alcoholic
beverages. The officers copied down the serial numbers,
left the defendant’s premises, ran the information taken off
the rifles through the National Crime Information Center,
and then obtained warrant for the search and seizure of the
rifles. The Sixth Circuit found the plain view exception
inapplicable to seizure of the rifles since the incriminating
nature of the rifles was not apparent to the officers when
they first discovered them. See /d at 355.
A-39
not able to determine that its possession violated
Ohio law.
Id. at 98-99.
The instant case is distinguishable from
Szymkowiak. In Szymkowiak, there was no apparent nexus
between the crimes for which the premises was being
searched, i.e., theft of jewelry and a television set, and the
AR-15. In the case at bar, unlike the situation in
Szymkowiak, firearms were reported to have been used
during the crimes under investigation. Thus, there was an
apparent nexus between the crimes for which the premises
was being searched and the weapons discovered. The
affidavit states that the officers had been told the defendant
(and his son) "were armed with automatic pistols at the time
of [one such] theft." Additionally, in _Szymkowiak, the
ATF agent who was summoned to the scene determined that
the weapons were not illegal. Here, when Perry called
Prosecutor Garber, he was informed that the weapons
should be seized.
Defendant further attempts to argue that the officers
conducting the search knew that defendant was a federally
licensed firearms dealer and thus the police could not have
known at the time of their discovery if the weapons seized
were legal or illegal. This reliance on Detective Perry’s
subjective state of mind to invalidate the plain view
exception is misguided in light of case law holding that a
police officer’s actual state of mind when executing 4
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search warrant is irrelevant.’ See United States vy. Kalter,
5 F.3d 1166 (8th Cir. 1993); United States v. Hatten, 68
F.3d 257 (8th Cir. 1995); United States v. Willis, 37 F.3d
313 (7th Cir. 1994). In United States v. Kalter, the Eight
Circuit held that probable cause is determined under an
objective standard, and not by reference to the subjective
reasons in police officers’ minds which motivated
defendant’s arrest. See 5 F.3d at 1168. In Kalter, officers
stopped defendant’s vehicle because he was driving at night
without lights. See Jd. The officers subsequently observed
a handgun laying on the back seat of the automobile and
arrested defendant because they believed he had violated a
Missouri statute. See Jd. (citing Mo. Rev. Stat. §
571.303.1(1)). In actuality, Kalter had not violated that
‘Even if the court were to consider the officers’
subjective state of mind, the following factors weigh heavily
against a finding that the officers were unjustified in their
conclusion that the firearms were illegal. First, defendant’s
firearm business was 60 miles away in the Detroit area.
Second, during the search, the officers found receipts for
only twelve guns, and thus had probable cause for believing
the remaining guns were illegal. Third, although not
revealed in the affidavit, the officers had received several
reports of automatic gunfire on the premises. Fourth, the
circumstances under which the guns were found led the
officers to conclude at the time of their discover that the
weapons were connected with criminal activity. See M.C.L.
§ 750.227 (b).
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statute because the gun was not concealed. Nevertheless,
the court stated:
How Officers Risk and Winter interpreted the law is
not, in any event, dispositive of the question
whether they had probable cause to arrest Kalter.
We need not determine how these officers concluded
that they had probable cause to arrest Kalter. We
ask instead whether a prudent person, who knew
about the St. Louis ordinance and who observed
what these officers saw, could have believed that
Kalter had committed or was committing a crime at
the time of his arrest. See, e.g, United States v.
Slupe, 692 F.2d 1183 (8th Cir. 1982). It is obvious
that a reasonable person could have believed Kalter
had violated the St. Louis ordinance by transporting
a gun, not enclosed in a case or its original
packaging, in the back seat of his vehicle. The facts
known to Officers Risk and Winter at the time of
Kalter’s arrest therefore constituted probable cause
to arrest him. We therefore affirm the district
court’s decision not to suppress the gun recovered
incident to the arrest.
Id. The objective standard is applied consistently in cases
where police officers, though mistaken or unsure of the
precise law being violated, nonetheless were found to have
had sufficient probable cause to effectuate an arrest or to
seize evidence in plain view. See United States v. Willis,
37 F.3d 313, 316 (7th Cir. 1994) (holding that seizure of
gun in plain view was justified because officer could
determine that defendant had probably violated federal
statute prohibiting guns on school property as soon as
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officer identified glint of handgun); see also United States
vy. Hatten, 68 F.3d 257, 261 (8th Cir. 1995) (holding that
"'[p]robable cause demands not that an officer be ‘sure’ or
‘certain’ but only that the facts available to a reasonably
cautious man would warrant a belief ‘that certain items may
be contraband or stolen property or useful as evidence of a
crime’").
Defendant further argues that the plain view
exception if invalid because Detective Perry could not have
known that the pen guns specifically were illegal upon
surface inspection. This argument is flawed for the same
reasons as stated above. "Immediately apparent” does not
mean the police officer "knows" or "is certain" that the item
is evidence of an illegal nature. Rather, it means that the
officer must have "probable cause to associate the property
with criminal activity." Brown, 460 U.S. at 741-42. Perry
had probable cause to believe the pen guns were illegal,
given their proximity to other facially suspect items, such
as the sawed-off shotguns and silencers. Additionally, as
discussed above, a police officer’s actual state of mind
when executing a search warrant is irrelevant. See United
States v. Kalter, 5 F.3d 1166 (8th Cir. 1993); United States
v. Hatten, 68 F.3d 257 (8th Cir. 1995); United States v.
Willis, 37 F.3d 313 (7th Cir. 1994).
In light of the foregoing, this Court finds that the
plain view doctrine is applicable in the case at bar, allowing
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an exception to the warrant requirement with respect to the
items seized in the vault.
7. M.C.L. § 780.656 WAS VIOLATED.
Defendant further argues that the officers violated
Section 780.656 of Michigan Compiled Laws, "Breaking of
doors and windows," when they entered the gun vault. That
section provides in full:
The officer to who a warrant is directed, or any
person assisting him, may break any outer or inner
door or window of a house or building, or anything
therein, in order to execute the warrant, if, after
notice of his authority and purpose, he is refused
admittance, or when necessary to liberate himself or
any person assisting him in execution of the warrant.
M.C.L. § 780.656. Defendant attempts to argue that the
officers did not give notice of their authority and purpose
before-opening the gun vault. However, Detective Perry
testified that he provided Marie Wolfe with a copy of the
search warrant prior to entering the vault. Perry also stated
that he went into the vault to look for items described in
detail in the search warrant. Thus, this Court finds that the
detective did give notice of his authority and purpose for
entering the vault prior to his entering therein.
Although no Michigan case specifically addresses
"knocking and announcing" at an inner door, there is case
law dealing with this issue in the context of 18 U.S.C.
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§ 3109, the federal counterpart to M.C.L. § 780.656. The
federal statute provides in full:
The officer may break open any outer or inner door
or window of a house, or any part of a house, or
anything therein, to execute a search warrant, if,
after notice of his authority and purpose, he is
refused admittance or when necessary to liberate
himself or a person aiding him in the execution of
the warrant.
18 U.S.C. § 3109. Cases interpreting this federal statute are
instructive, and shed light on the “inner door" issue
presented in the case at bar.
In United States v. Johnson, 573 F. Supp. 998 (D.
Kan. 1983), the court held that "[o]nce law enforcement
officers lawfully enter a house, they need not comply with
the knock and announce statute before entering every other
closed door within residence." /d. at 1000 (interpreting 18
U.S.C. § 3109); see United States v. Crawford, 657 F.2d
1041 (9th Cir. 1981) (holding that announcement of
authority and purpose at front door was sufficient to meet
knock and announce requirement, refuting any duty to
repeat notice at inner bedroom door). In the instant case,
this Court has already found that Detective Perry had given
notice of his authority and purpose to Marie Wolfe upon
entering the residence and prior to entering the vault. The
issue thus becomes whether Perry was required to again
"knock and announce" at the vault door. It is clear from
the federal case precedents that Perry was not required to
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"re-announce" at the entrance to the vault. A contrary
finding would lead to ludicrous results. Police officers
would be unnecessarily hampered in performing lawful
searches if required to repeatedly give "notice of authority
and purpose" upon entering any closed inner door inside the
residence. Neither the michigan statute nor its federal
counterpart requires such repetition. See United States v.
Bragg, 138 F.3d 1194 (7th Cir. 1998) (holding that § 3109
applies "per house rather that per door"). Thus, there was
no violation of M.C.L. § 780.656.
NOW, THEREFORE, IT IS HEREBY ORDERED
that defendant’s motion to suppress fruits of a state search
warrant is DENIED.
SO ORDERED.
Dated: 9/1/98 /s/ Paul V. Gadola
HON. PAUL V. GADOLA
UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff, -
CASE NO. 97-5065
vs. HONORABLE PAUL V. GADOLA
U.S. DISTRICT JUDGE
RONALD NAPOLEON WOLFE, SR.,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING
DEFENDANT’S AMENDED AND SUPPLEMENTAL
MOTION TO SUPPRESS THE FRUITS OF A STATE
SEARCH WARRANT AND DENYING DEFENDANT’S
MOTION TO QUASH WARRANTS OF 12/23/96 AND
1/15/97, SUPPRESS EVIDENCE, DISMISS THE
INDICTMENT, AND/OR DISMISS COUNTS I
THROUGH IX, COUNT XII, AND COUNTS XVI
THROUGH XVIII OF THE FIRST SUPERSEDING
INDICTMENT
Presently, before the Court is defendant Ronald
Napoleon Wolfe, Sr.’s Amended and Supplemental Motion
to Suppress the Fruits of a State Search Warrant filed on
September 30, 1998. The government responded to
defendant’s motion on October 23, 1998. On
November 23, 1998, defendant untimely filed a reply brief
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ee
entitled, "defendant’s response to the government's October
23, 1998 response." On December 30, 1998, this caqurt
issued an order granting the United States’ motion to strike
said reply brief pursuant to Local Rule 7.1 (E.D. Mich.
Sept. 8, 1998).
Also, before the Court is defendant's Motion to
Quash Warrants of 12/23/96 and 1/15/97, Suppress
evidence, Dismiss the Indictment, and/or Dismiss Counts |
through IX, Count XII, and Counts XVI through XVIII of
the First Superseding Indictment. The government
responded to defendant’s motion to quash on October 26,
1998.
Previously, on September |, 1998, this Court issued
a memorandum opinion and order denying defendant's
motion to suppress fruits of a state search warrant.
Evidentiary hearings were conducted on July 30, July 31,
and August 24, 1998. The above-entitled case arises out of
the execution of a six-page state search warrant at
defendant’s residence on December 23, 1996. On that date,
officers from the Livingston County Sheriff's-Department,
Michigan State Police and Brighton State Police went to
defendant’s premises to assist in the entry of the premises
and/or execution of the warrant. After entering the house,
defendant was arrested and his wife, Marie Wolfe, was
given a copy of the search warrant to review. As a result
of the ensuing search, the officers seized from a vault
located in the basement of the house, and behind a secret
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door, the following items: a long “plant growing light,” a
water pump, electric timers, a humidity gauge, 8 plastic pots
and 17 marijuana growing plants. Also inside the vault the
officers found scores of firearms. After locating receipts
for only twelve weapons, the officers seized 86 firearms.
See United States v. Wolfe, 22 F. Supp. 2d 627, 630-31
(E.D. Mich. 1998) (Gadola, J.).
For the reasons set forth below, the Court will deny
defendant’s Amended and Supplemental Motion to Suppress
the Fruits of a State Search Warrant and deny defendant’s
Motion to Quash Warrants of 12/23/96 and 1/15/97,
Suppress Evidence, Dismiss the Indictment, and/or Dismiss
Counts I through IX, Count XII, and Counts XVI through
XVIII of the First Superseding Indictment.
I. PROCEDURAL HISTORY
The instant case commenced December 3, 1997,
when the grand jury returned an indictment charging
defendant Wolfe with 21 federal firearms violations. Each
count of the indictment was based on weapons seized by
‘state officers during the execution of a state search warrant
on December 21, 1996 at defendant’s residence. Defendant
moved to suppress from evidence all seized firearms,
alleging that the warrant was invalidly issued and executed.
As mentioned above, this Court conducted an evidentiary
hearing on July 30, July 31, and August 24, 1998. On
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ae
September 1, 1998, this Court issued a memorandum .
opinion and order discussing the various issues raised in
defendant’s motion to suppress. The Court held that (1)
Detective Perry properly swore to the affidavit; (2) the
affidavit sworn to by Detective Perry on December 23,
1996 is not invalid on the basis of defendant’s claim that it
contained false or misleading assertions of material fact; (3)
there was probable cause to search defendant’s entire
premise based on the affidavit; (4) even if the affidavit does
not establish probable cause, the good faith exception to the
warrant requirement is applicable to validate the search in
the case at bar; (5) whether the defendant consented to a
search of the vault is-most; (6) seizure of the firearms is
valid under the plain view exception to the warrant
requirement; and (7) M.C.L. § 780.656 was not violated.
See United States v. Wolfe, 22 F. Supp. 2d 627 (E.D. Mich.
1998) (Gadola, J.).
The original indictment was returned by a grand jury
which had been unconstitutionally selected, pursuant to the
Sixth Circuit’s ruling in U.S. v. Ovalle, 136 F.3d 1092 (6th
Cir. 1998). The government therefore presented the case to
a new grand jury, which subsequently returned a First
Superseding Indictment on August 19, 1998. The First
Superseding Indictment is identical to the original
indictment, except that it adds a new Count 22. That count
charges defendant with illegally manufacturing marijuana at
his residence beginning on an unknown date and a
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=<
continuing until the date of the search, December 21, 1996,
in violation of 21 U.S.C. § 841.
II. DEFENDANT’S AMENDED AND
SUPPLEMENTAL MOTION TO SUPPRESS
THE FRUITS OF A _ STATE SEARCH
WARRANT
A.
Previously resolved issues
In the amended and supplemental motion, defendant
concedes that the following issues have been adequately
resolved for purposes of appellate review:
1.
Whether Detective Perry swore to the
affidavit submitted to Judge Hegarty on
December 23, 1996;
Whether the affidavit presented to Judge
Hegarty on December 23, 1996 contained
false or misleading assertions of material
facts;
Whether the affidavit presented to Judge
Hegarty set forth sufficient facts, attributable
to reliable sources, to support a finding of
probable cause;
Whether Judge Hegarty critically evaluated
the affidavit, or did he simply accede to the
requests made in the affidavit and search
warrant;
Whether there was a sufficient factual basis
within the four corners of the affidavit to
support a finding that Detective Perry relied
in good faith on the search warrant;
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6. Whether Detective Perry’s entry into the gun
vault complied with the requirements of
M.C.L. § 780.656;
7. Whether Detective Perry’s seizure of the
firearms from the gun vault occurred in
conformity with the plain view exception;
and
8. | Whether defendant consented to the search of
the gun vault.’
See Defendant’s Amended and Supplemental Motion, pp. 9-
10. ;
B. Issues about which defendant is uncertain
as to their resolution
Defendant states that he is uncertain as to whether
the following issues have been resolved:
a Whether the search warrant described the
property to be searched for and seized with
' Defendant maintains that although this Court has not
specifically decided the issue of whether the search of the
gun vault was consented to by defendant, the issue has been
sufficiently preserved for appeal. See Defendant's
Amended and Supplemental Motion, p.10 n.2; see also
U.S. v. Wolfe, 22 F. Supp.2d 627, 641 (E.D. Mich. 1998)
(Gadola, J.). The Court agrees that the issue has been
preserved. In the previous opinion of September 2, 1998,
this Court held that whether defendant had consented to the
search of the vault was moot because the government has
never alleged, nor does it intend to allege, that the search of
the vault was authorized by defendant’s consent. /d.
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sufficient particularity to satisfy the Fourth
Amendment;
He Whether the search warrant described the
place to be searched with sufficient
particularity to satisfy the Fourth
Amendment;
3. Whether the execution of the search warrant
was. overly broad so as to require
suppression of all evidence seized from
- defendant’s home on December 23, 1996.
See Defendant’s Amended and Supplemental Motion, p. 11.
The government contends that this Court’s previous opinion
has resolved these issues, albeit by implication, against
defendant, at least with respect to the seized firearms. The
government concedes that the Court did not decide these
issues with respect to the seized marijuana because Count
22 was added by the First Superseding Indictment, and was
not addressed in defendant’s prior motion to suppress.
These three issues all concern the validity of the
underlying search warrant, as well as the manner of its
execution. In the previous opinion, this Court explicitly
stated that it found the warrant to be valid and enforceable,
based upon probable cause as evidenced by the supporting
affidavit of Detective Perry. See Wolfe, 22 F. Supp.2d at
636. In addition, the Court held that even if the warrant
were defective, the search would still have been proper
based upon the good faith exception to the exclusionary
rule. See /d. at 640 (citing United States v. Leon, 468 U.S.
897, 920-21, 104 S.Ct. 3405, 82 L:Ed.2d 677 (1984), reh'g
B-7
denied, 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942
(1984)). Furthermore, the Court expressly acknowledged
that the state search warrant did not authorize the police to
search for and seize firearms. /d. at 641. Nevertheless,
seizure of the firearms was held to be valid under the plain
view exception to the warrant requirement. See /d. (citing
Horton v. California, 496 U.S. 128, 142, 110 S.Ct. 2301,
110 L.Ed.2d 112 (1990)).
In light of this Court’s previous rulings on the
subject, defendant will not be permitted to relitigate issues
regarding the validity of the search warrant and its
execution. With respect to the applicability of these prior
rulings to the marijuana seized during the search on
December 23, 1996, defendant has advance no reason why
the plain view exception, ad discussed and applied in the
previous opinion, would not apply equally to both the
seized firearms and to the marijuana. See Jd. The three
requirements of the plain view exception have been
satisfied, to wit: (1) the marijuana was in plain view; (2)
the incriminating character of the marijuana was
immediately apparent, and (3) the marijuana was viewed by
an officer lawfully located in a place from which the
marijuana could be seen and seized by an officer who had
a lawful right to access to the marijuana itself. See /d
Therefore, this Court finds that the prior rulings as set forth
in the September 1, 1998 opinion will be extended to
B-8
encompass the seizure of the marijuana and associated
items.
Cc. A new issue raised by defendant regarding
M.C.L. § 780.655, and not previously
addressed by this Court
Lastly, defendant raises an issue which has not been
previously advanced. This issue may be phrased as follows:
whether M.C.L. § 780.655 was violated when, on
February 3, 1997, the Livingston County Sheriff's
Department transferred 26 firearms and/or firearm-
related items to the custody of the Bureau of
Alcohol, Tobacco and Firearms (ATF), which items
had been seized previously by Detective Perry from
defendant’s home on December 23, 1996.
See Defendant’s Amended and Supplemental Motion, pp.
11-14. The discussion below will focus on this newly
raised issue, not previously addressed in this Court’s prior
rulings. As the United States points out, this issue could
have been raised in defendant’s previous motion to
suppress. Therefore, according to the United States, it
should be dismissed as untimely. Nevertheless, since the
issue relates to conduct allegedly occurring after execution
of the warrant on December 23, 1996, this Court will
consider the issue on its merits hereinbelow.’
*It should be mentioned that defendant has made no
allegation of a violation of M.C.L. § 780.655 with respect
to the seized marijuana. As the government points out, the
B-9
Pursuant to M.C.L. § 780.655, when an officer in
the execution of a search warrant seizes any property, the
officer is required to make a “complete and accurate
tabulation” of the property and the things so seized. /d.
According to the statute, the officer must then "give to the
person from whom or from whose premises the property
was taken a copy of the warrant and skal! give to the person
a copy of the tabulation upon completion... ." /d
Section 780.6565 further provides thai the officer shall "file
the tabulation promptly with the court or magistrate." /d
"The property and things so seized shall be safely kept by
the officer so long as necessary for the purpose of being
produced or used evidence on any trial." /d
According to defendant, Detective Perry did not
provide defendant nor his wife with a complete and accurate
tabulation of items seized. In addition, defendant alleges
that the officer did not "safely keep" the property seized
from the Wolfe residence. According to defendant, on
February 3, 1997, Detective Perry turned over the firearms
to ATF Agents Evans. Defendant argues that such conduct
violates M.C.L. § 780.655, and that to permit introduction
marijuana was never transferred to the AFT. According to
the government, the marijuana is currently in the custody of
the state officers and will likely remain in their custody
until introduced as evidence at trial.
B-10
of such evidence against defendant would work a violation
of due process of law under the Fourteenth Amendment.
The government responds that this argument is not
timeiy raised. Even if considered timely, the United States
contends that the argument clearly lacks merit. The
government acknowledges that custody of the firearms was
delivered to the ATF shortly after seizure. However, the
prosecution maintains that defendant has made no showing
that the evidence was not "safely kept" in accordance with
the Michigan statute. Furthermore, even if the statute is
interpreted to mean that the seizing officer must keep the
evidence in the custody of his own state agency, the
government maintains that no part of the statute itself, nor
any case law, indicates that the remedy for such a violation
is suppression of the evidence. The government does not
address defendant's allegation that officers failed to provide
defendant with a tabulation of seized items.
In People v. Lucas, 188 mich. App. 554, appeal
denied, 439 Mich. App. 888 (1991), the Michigan Court of
Appeals held that a technical violation of the "complete
tabulation" requirement pursuant to M.C.L. § 780.655 does
not require suppression of the seized evidence. See /d. at
573. In Lucas, police officers committed a technical
violation of M.C.L. § 780.655 when they neglected to make
a complete tabulation of all items seized and failed to give
copies of the warrant and a tabulation "forthwith" to the
person from whom items were taken. See Jd However,
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defendant in that case was provided with such documents at
his arraignment. See Jd. The Michigan appellate court held
that "this "hypertechnical’ violation of the statute does not
require suppression of the evidence seized, particularly
where defendant cannot articulate any harm or prejudice
that resulted." See /d. (citing People v. Myers, 163 Mich.
App. 120, 122-123, 413 N.W.2d 749 (1987) and People v.
Tennon, 70 Mich. App. 447, 245 N.W.2d 756 (1976)).
Michigan courts have also addressed the failure of
officers to "safely keep" seized evidence. See In _re
Forfeiture of $25,505, 220 Mich. App. 572 (1996). In that
case, the Michigan Court of Appeals held that failure to
"safely keep" seized evidence in violation of M.C.L. §
780.655 creates a rebuttable presumption that unpreserved
evidence would have been adverse to the government. /d.
at 579-80. The court commented that "a ministerial defect
did not void the effectiveness of the warrant or contaminate
the evidentiary value of the property seized under the
warrant." /d. at 578 (quoting People v. Tennon, 70 Mich.
App. 447, 450 (1976) (internal quotation marks omitted)).
Furthermore, “any defect in failing to give the defendant a
copy of the search warrant at issue was *hypertechnical in
nature and did not prejudice defendant and, as a result, the
evidence seized pursuant to the search warrant should not
be suppressed.’" Jd. (quoting People v. Myers, 163 Mich.
App. 120, 122 (1987)).
In view of the Michigan case law discussed above,
defendant’s request to suppress the firearms based upon an
alleged technical violation of M.C. L. § 780.655 must be
denied. Defendant has made no showing nor has he even
asserted that any prejudice flowed to defendant from either
the failure to immediately provide a tabulation of items or
from the transfer of the weapons to the ATF. Defendant
has failed to cite any authority for the proposition that the
Michigan statute’s "safely keep" requirement prohibits the
transfer of items seized for the legitimate purposes of
testing and evaluation.
The government makes the additional argument that
the Michigan statute has no application to the instant case.
As a case involving the prosecution for violations of federal
laws in a federal court, the statute, according to the United
States, should have no bearing on the suppression of
evidence question. While it is true that "states are not free
to impose on Federal courts requirements more strict than
those of Federal laws or [the] Constitution," this Court need
not reach the issue of whether the requirements of M.C.L.
§ 780.655 are more or less strict than those imposed by the
federal Constitution: See United States v. Combs, 672 F.2d
574, 578 (6th Cir.), cert. denied, 458 U.S. 1111 (1982); see
also United States v. Allen, 954 F.2d 1160 (6th Cir. 1992);
United States v. Loggins, 777 F.2d 336, 338 (6th Cir.
1985). Even assuming that M.C.L. § 780.655 were
applicable to the case at bar, and also assuming arguendo
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that the state police officers had somehow violated the
statute, such a violation would not, under the Michigan case
law cited above, warrant suppression of the firearms.
Defendant simply has not made any showing of harm or
prejudice which would warrant suppression. Even if the
state agents had failed to "safely keep" the 26 firearms,
defendant would be entitled, at most, to rebuttable
presumption and not suppression.
For the reasons set forth above, this Court will deny
defendant’s Amended and Supplemental Motion to Suppress
the Fruits of a State Search Warrant.
Ill. DEFENDANT’S MOTION TO QUASH
WARRANTS) OF 12/23/96 AND 1/15/97,
SUPPRESS EVIDENCE, DISMISS THE
INDICTMENT, AND/OR DISMISS COUNTS I
THROUGH IX, COUNT XII, AND COUNTS
XVI THROUGH XVIII OF THE FIRST
SUPERSEDING INDICTMENT
Defendant has filed an additional motion seeking to
quash two search warrants, suppress evidence, dismiss the
indictment and/or dismiss the firearms counts of the
indictment. This motion addresses issues arising not just
from the search conducted on December 23, 1996, but also
from subsequent searches conducted on January 16, 1997,
pursuant to search warrants issued on January 15, 1997.
According to defendant’s motion, Mr. Wolfe’s house was
"again raided and some of the tax records had been returned
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to Wolfe’s house." Brief in Support of Motion to Quash,
p. 2. Also on January 16, 1997, the DEA raided Wolfe's
mother’s gun shop, "and seized "tax records’ and turned
them over to Livingston County as evidence." Id.’
At the outset, the government argues that to the
extent defendant seeks to suppress any items seized during
the execution of the additional search warrants on January
16, 1997, defendant’s motion should be denied as moot.
Counsel for the government has advised defendant that the
United States does not intend to offer in evidence any
documents or items seized pursuant to the January 15, 1997
warrant. As a consequence, the Court will deny as moot
defendant’s motion, insofar as it seeks suppression of
evidence seized on January 16, 1997.
In the instant motion, defendant raises the following
three arguments, which will be discussed hereinbelow: (1)
that disclosure of tax "return information" in the December
23, 1996 warrant and/or affidavit supporting the search
warrant constitutes a violation of the Internal Revenue
Code, and that the use of confidential information is
unlawful; (2) that under Federal Rule of Criminal Procedure
41, only a federal law enforcement office or a U.S.
>The government provides the date of January 15, 1997,
one day prior as the date for the execution of these
subsequent search warrants. See Government's Brief in
Support of Response to Defendant’s Motion to Quash, p.2.
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Attorney is authorized to request a search warrant for
federal tax records; (3) that defendant may not be found
guilty of possession of an unregistered machine gun
pursuant to 26 U.S.C. § 5861(d), because to do so would
violate due process, as defendant is precluded by law from
complying with the requirements of 26 U.S.C. § 5861(d).
A. Whether disclosure of "return
information" in the December 23, 1996
search wafrant or in the supporting
affidavit constituted a violation of the
Internal Revenue Code, and thus requires
suppression of evidence
Defendant argues that the December 23, 1996
warrant is unlawful because it relied upon the following
language: "[i]nvestigation with agent Randy Evans of the
[ATF] has determined that Ronald Napoleon Wolfe has a
Federal Firearms Dealer License." Defendant also claims
that Agent Evans revealed that Wolfe possessed a federally
issued Class III firearm license. However, the supporting
affidavit contains no such disclosure. Furthermore, the
government denies that Agent Evans revealed the type of
license involved. To the contrary, the United States
maintains that witness Al Perry testified at the hearing held
on July 31, 1998 that Evans refused to tell him what type
of license Wolfe possessed.
B-16
Defendant claims that inclusion of language in the
warrant revealing that Wolfe has a federal firearms dealer
license is a violation of 26 U.S.C. § 6103. That section
prohibits government employees from disclosing tax returns
and tax return information. Defendant has cited no case
law holding that an individual’s status as a licensed firearms
dealer is "return information" within the meaning of Section
6103. Furthermore, even in the event that a dealer’s status
were considered "return information," defendant has cited
no case law holding that suppression of evidence is the
appropriate remedy.
The government directs the Court’s attention to
United States v. Hunter, 863 F. Supp. 462 (E.D. Mich.
1994) (Rosen, J.), wherein the district court considered
whether the government’s disclosure of defendant’s "ATF
Form 3 transfer papers" in a non-tax criminal proceeding
violated 26 U.S.C. § 6103. Judge Rosen stated that "the
Court does not see the need to resolve the issue of whether
the government violated § 6103’s confidentiality provisions
in the investigation or prosecution of this case." /d. at 477.
The court continued, "[t]his is because even if the Court
were to hold that § 6103 was violated . . . it is largely
settled that suppression and dismissal are inappropriate
remedies for such a violation." /d. (citing United States v.
Michaelian, 803 F.2d 1042 (9th Cir. 1986).
Defendant attempts to distinguish Hunter on the
ground that that opinion does not discuss 26 U.S.C. § 5848,
B-17
a statute arguably applicable in the instant case. Section
5848 provides, in pertinent part, that
[nJo information or evidence obtained from an
application, registration, or records required to be
submitted or retained by a natural person in order to
comply with any provision of [the National Firearms
Act] or regulations issued thereunder, shall, except
as provided in subsection (b) of this section, be
used, directly or indirectly, as evidence against that
person in a criminal proceeding with respect to a
violation of law occurring prior to or concurrently
with the filing of the application or registration, or
the compiling of the records containing the
information or evidence.
26 U.S.C. § 5848 (a) (emphasis added). However, as the
government points out, Judge Rosen had considered Section
5848 in a previous opinion issued in the same case. See
United States v. Hunter, 843 F. Supp. 235, 249-253 (E.D.
Mich. 1994). In that earlier decision, the court found that
as long as the information was not used "as evidence," but
merely for purposes of investigation, there was no violation
of the statute. See Jd at 252. As the court specifically
noted:
§ 5848(a) bars the use of such records as evidence.
The Court reads this provision to prohibit the
introduction of protected records in a trial; it does
not appear to proscribe the Government’s utilization
of the records so far in this case in order to
investigate and indict Defendants. Furthermore, and
more pointedly, should the Government wish to use
the records as evidence in trial, the Court believes
B-18
that the "future crimes" and "furnishing false
information" exceptions in § 5848 permit it to do so.
A step-by-step review of each of the registrations
and recordkeeping events set out in the indictments
supports the Court’s conclusion.
Id. (emphasis added).
In keeping with the decisions in United States v.
Hunter, this Court finds that neither 26 U.S.C. § 6103 nor
26 U.S.C. §5848 (a) is an appropriate basis for suppression
of the evidence in the case at bar. The government argues
that it does not need to introduce the fact that defendant is
a licensed firearms dealer to prove any element of the
crimes charged. See United States’ Brief in Response to
Defendant’s Motion to Quash, p. 5. Since the government
does not intend to introduce such evidence, and has merely
used information regarding Wolfe’s status as a licensed
firearms dealer for investigative purposes, Section 5848’s
prohibition is not applicable. In addition, again following
Judge Rosen’s lead in Hunter, this Court need not decide
whether Section 6103 has been violated in view of the fact
that suppression and dismissal are inappropriate remedies
for such a violation. See United States v. Hunter, 863 F.
Supp. 462, 477 (E.D. Mich. 1994) (citing United States v.
Michaelian, 803 F.2d 1042 (9th Cir. 1986)).
B-19
B. Whether, under Federal Rule of Criminal
Procedure 41, only a federal law enforce-
ment officer or a U.S. Attorney is
authorized to request a search warrant for
federal tax records
Defendant further argues that since federal courts
have exclusive jurisdiction over federal tax issues, a state
" court judge is not authorized to issue a search warrant to
local law enforcement officers to seize federal tax records.
In an attempt to support this position defendant cites
Federal Rule of Criminal Procedure 41 (a), providing that
"[u]pon request of a federal law enforcement officer or an
attorney for the government, a search warrant . . . may be
issued . . . by a federal magistrate judge or a state court . .
..").* In the case at bar, defendant argues that federal ATF
agent Evans did not personally request issuance of the
December 23, 1996 search warrant. Instead, the warrant
“Federal Rule of Criminal Procedure 41 (a) provides a
full:
(a) Authority to Issue Warrant. Upon the request of
a federal law enforcement officer or an attorney for the
government, a search warrant authorized by this rule may
be issued (1) by a federal magistrate judge, or a state court
of record within the federal district, for a search of property
or for a person within the district and (2) by a federal
magistrate judge for a search of property or for a person
either within or outside the district if the property or person
is within the district when the warrant is sought but might
move outside the district before the warrant is executed.
B-20
was requested by Detective Perry, a state law enforcement
officer. As a consequence, defendant requests suppression
of the evidence seized.
The government responds that defendant’s argument
rests upon the erroneous assumption that the object of the
search warrant was the seizure of federal tax codes. The
language of the warrant supports the prosecution’s position
that tax records were not the target of the officers’ search.
Rather, the warrant is aimed at uncovering evidence relating
to various items allegedly stolen by defendant. The warrant
authorizes a search for:
[djocuments or evidence indicative of the ownership
or occupancy of the . . . premises; insurance records
including contracts, claim forms and payment forms;
bales of hay; golf carts; records relating to building
materials for the structures on the premises; shingle
samples; building material samples; photographs;
records relating to the purchase, ownership or
registration of firearms; records relating to the
possession, ownership or registration of vehicles;
records or evidence relating to horse ownership,
sales or veterinary treatment.
See United States’ Brief in Response to Defendant’s Motion
to Quash, p. 7. As is apparent from the above enumeration,
the search warrant was not targeted at uncovering federal
tax records.
The Court agrees with the government’s position
that defendant’s argument relies on a mistaken assumption.
furthermore, and more importantly, defendant has cited no
B-21
4 in
pi
PR: ee een =
2 ig el os" IS aes
authorize a search for federal tax records as evidence of
facts pertinent to state law offenses. Defendant has utterly
failed to provide any legal authority for his assertion that
the "basic principles of federalism have been clearly
violated in this case." Defendant’s Brief in Support of
Motion to Quash, p. 9. The only authority cited for this
allegation is Federal Rule of Criminal Procedure 41.
However, no part of that rule in any way buttresses
defendant’s position that state courts are prohibited from
issuing warrants relating to federal tax records.
Cc. Whether defendant may be found guilty of
possession of an unregistered machine gun
pursuant to 26 U.S.C. § 5861 (d), when,
according to defendant, he is precluded by
law from complying with the
requirements of 26 U.S.C. § 5861 (d)
Defendant’s last argument concerns the interplay
between two statutes: 26 U.S.C. § 5861 (d) and 18 U.S.C.
§ 922 (0). Section 922 (0) bans the private possession of
any machine gun made after the effective date of the
Firearm Owners’ Protection Act (FOPA) on May 19,
1986.° Section 5861 (d) of the National Firearms Act
* 18 U.S.C. § 922 (0) provides, in full, as follows:
(1) Except as provided in paragraph (2), it shall be
unlawful for any person to transfer or possess a machine
B-22
(NFA) prohibits a person from receiving or possessing "a
firearm which is not registered to him in the National
Firearms Registration and Transfer Record." 26 U.S.C. §
5861 (d).° Defendant argues that "it is simply a violation
gun.
(2) This subsection does not apply with respect to--
(A) a transfer to or by, or possession by
or under the authority of, the United
States or any department or agency
thereof or a State, or a department,
agency, or political subdivision
thereof; or 2
(B) any lawful transfer or lawful
possession of a machine gun that was
lawfully possessed before the date
this subsection takes effect.
° 26 U.S.C. § 5861 contains the following
prohibitions:
It shall be unlawful for any person--
(A) to engage in business as a
manufacturer or importer of, or
dealer in, firearms without having
paid the special (occupational) tax
required by section 5801 for his
business or having registered as
required by section 5802; or
(B) to receive or possess a firearm
transferred to him in violation of the
provisions of this chapter; or
B-23
(C)
(D)
(E)
(F)
(G)
(H)
(I)
(J)
(K)
to receive or possess a firearm made
in violation of the provisions of this
chapter; or
to receive or possess a firearm which
is not registered to him in the
National Firearms Registration and
Transfer Record; or
to transfer a firearm in violation of
the provisions of this chapter; or
to make a firearm in violation of the
provisions of this chapter; or
to obliterate, remove, change, or alter
the serial number or other
identification of a firearm required
by this chapter; or
to receive or possess a firearm
having the serial number or other
identification required by this chapter
obliterated, removed, changed, or
altered; or
to receive or possess a firearm which
is not identified by a serial number
as required by this chapter; or
to transport, deliver, or receive any
firearm in interstate commerce
which as not been registered as
required by this chapter; or
to receive or possess a firearm which
has been imported or brought into the
United States in violation of section
5844; or
B-24
of due process for the government to continue to arrest
citizens for failing to file a tax return and pay their federal
income taxes if Congress passed a law prohibiting the
government from accepting tax returns and tax payments
[with respect to banned machine guns]." Defendant’s Brief
in Support of Motion to Quash, p. 12.
At the outset, it should be noted that defendant’s
argument applies only to machine guns manufactured after
May 19, 1986. According to the government, at least two
of the machine guns involved in the instant case were
manufactured during World War II, and therefore
possession of these items would not be illegal pursuant to
Section 922 (0), assuming they were appropriately
registered. | Furthermore, defendant’s argument would
obviously not be applicable to the silencers, pen guns, short-
barreled rifle, or other items seized by the officers on
December 23, 1996.
In response to defendant’s argument, the government
cites appellate court decisions holding that Section 922 (0)
. did not repeal 26 U.S.C. § 5861 (d). See United States v.
Ardoin, 19 F.3d 177, 179-80 (Sth Cir. 1994); see also
United States v. Jones, 976 F.2d 176 (4th Cir. 1992), cert.
(L) to make, or cause the making of, a
false entry on any application, return,
or record required by this chapter,
knowing such entry to be false.
B-25
United States v. Jones, 976 F.2d 176 (4th Cir. 1992), cert.
denied, 508 U.S. 914 (1993). Defendant cites Ardoin as
well, but relies upon language of the dissenting opinion.
Defendant’s Brief in Support of Motion to Quash, p. 12. In
addition, the Eighth Circuit has directly addressed the
relationship between these two statutes in United States v.
Elliott, 128 F.3d 671 (8th Cir. 1997), wherein the court
stated as follows:
[Defendant] Elliott contends his § 5861 (d)
conviction for failure to register the machine gun
violates due process. Elliott argues § 5861 (d) was
implicitly repealed by the later-enacted § 922 (0)
(1), which prohibits possession of a machine gun.
Because Elliott can comply with both statutes by
simply refusing to possess the machine gun, we
agree with the Fourth, Fifth, Seventh, Ninth, and
Eleventh Circuits that the statutes are reconcilable.
See United States v. Hunter, 73 F.3d 260, 261-62
(9th Cir. 1996); United States v. Rivera, 58 F.3d
600, 601-02 (11th Cir. 1995); United States v.
Ardoin, 19 F.3d 177, 179-80 (Sth Cir. 1994); United
States v. Ross, 9 f.3d 1182, 1193-94 (7th Cir. 1993),
vacated on other grounds, 511 U.S. 1124 (1994);
United States v. Jones, 976 F.2d 176, 182-83 (4th
Cir. 1992); but see United States v. Dalton, 960
F.2d 121, 123-24 (10th Cir. 1992). In sum, Elliott
was fairly convicted under § 5861 (d).
Elliott, 128 F.3d at 672 (emphasis added). This Court
agrees with the reasoning articulated in the Elliott, decision.
The two statutes - Section 5861 (d) and Section 922 (0) (1)
- are not irreconcilable. A person may easily comply with
B-26
possess the illicit machine guns. Defendant’s argument
attempts to circumvent Congress’s intent, as expressed in
Section 922 (0), by creating the illusion of a contradiction
where none exists.
Despite the Tenth Circuit’s decision in United States
v. Dalton, 960 F.2d 121 (10th Cir. 1992), and a district
court’s ruling in United States v. Gambill, 912 F. Supp. 287
(S.D. Ohio 1996) (Spiegel, J.), the great weight of authority
has affirmed the Elliott court’s holding that these two
statutes are indeed reconcilable. In United States v. Dijelaj,
842 F. Supp. 278 (E.D. Mich. 1984) (Rosen, J.), the court
strongly criticized the Dalton decision, stating that:
[t]he Court finds the analysis in [United States v.
Jones, 976 F.2d 176 (4th Cir. 1992) and [United
States v. Ross, 9 F.3d 1182 (7th Cir. 1993)] clearly
superior to that of Dalton. Just as the defendant in
Jones could have complied with both the NFA [26
U.S.C. § 5861 (d)] and § 922 (0) by not dealing in
newly-made machine guns, so, too, Defendants in
this case could have complied with NFA § 5861 (d)
and Michigan’s ban on Molotov cocktails by not
possessing those destructive devices in the first
place. Dalton’s impossibility analysis is therefore
flawed, and this Court declines to apply it.
Furthermore, this Court believes that there is
nothing fundamentally unfair with holding
Defendants to answer for their breach of federal law
regardless of what state law may say. If this were
not the case, federal criminal statutes could be
enforced only in states which agreed with and
accepted them. This is a preposterous contention.
B-27
Defendants’ arguments to dismiss the indictment,
then, when boiled down to their essence, collapse
under simple common-sense... .
Djelaj, 842 F. Supp. at 281 (footnotes omitted).
This Court will join the Djelaj court in rejecting
Dalton. Just as in Djelaj, defendant Wolfe’s request in the
instant case to dismiss certain counts in the indictment will
be denied. Mr. Wolfe’s due process rights have not been
violated because of an alleged inability to comply with both
of the above-discussed statutes. The two statutes ar
compatible, as shown above, despite defendant's
impossibility argument.
For the reasons set forth above, this Court will deny
defendant’s Motion to Quash Warrants of 12/23/96 and
1/15/97, Suppress Evidence, Dismiss the Indictment, and/or
Dismiss Counts I through IX, Count XII, and Counts XVI
through XVIII of the First Superseding Indictment.
ORDER
NOW, THEREFORE, IT IS HEREBY
ORDERED that defendant’s Amended and Supplemental
Motion to Suppress the Fruits of a State Search Warrant is
DENIED;
IT IS FURTHER ORDERED that defendant’s
Motion to Quash Warrants of 12/23/96 and 1/15/97,
Suppress Evidence, Dismiss the Indictment, and/or Dismiss
B-28
IT IS FURTHER ORDERED that defendant’s
Motion to Quash Warrants of 12/23/96 and 1/15/97,
Suppress Evidence, Dismiss the Indictment, and/or Dismiss
Counts I through IX, Count XII, and Counts XVI through
XVIII of the First Superseding Indictment is DENIED;
insofar as defendant’s motion seeks suppression of evidence
seized on January 16, 1997, it is DENIED AS MOOT.
SO ORDERED.
Dated: 1/13/99
(
/s/ Paul V. Gadola
HON. PAUL V. GADOLA
UNITED STATES DISTRICT JUDGE
B-29
— ————-
STATE OF MICHIGAN
IN THE CIRCUIT COURT ee
FOR THE COUNTY OF LIVINGSTON
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff,
CASE NO. 99-9961
vs.
RONALD NAPOLEON WOLFE, SR.,
Defendant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff,
CASE NO. 99-9962
vs.
MARIE ELIZABETH WOLFE,
Defendant.
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OPINION and ORDER
Pending before the Court are Defendants’ motions
to quash a search warrant issued December 23, 1996, which
authorized a search of their home, outbuildings, and
property located in Livingston County, and to suppress
evidence which was seized pursuant to the execution of said
warrant.
C-1
The Livingston County Prosecutor has filed
numerous separate criminal cases against both Ronald
Wolfe Sr. and his wife Marie in this Court, and this motion
will unquestionably have an effect on some of those cases
as well. Defendants are charged in the instant cases with
manufacturing the controlled substance marijuana, with
intent to deliver, contrary to MCL 333.7401(2)(d)(iii); MSA
14, 15 (7401).
An evidentiary hearing on this motion was
conducted on February 9th, 10th, 11th and 23rd, and March
2nd, 6th, 17th and 18th, 1998. Briefs were thereafter filed
by the parties. Testimony was taken from the Honorable
Michael K. Hegarty, Lt. Ivan Deering, Detective Alan
Perry, Chief Assistant Prosecutor Dan Garber, Detectives
John Westendorf, Ed Moore, Robert Swackhammer and
Todd Luzod, Sgt. Victoria York, Deputies James Bolling
and Michael Hawry, William Harp, Harold Van Patten,
Ronald Wolfe, Sr. and Marie Wolfe. Twenty-four (24)
exhibits were received into evidence.
ISSUES
Defendants have raised the following issues:
1. Was the December 19, 1996 affidavit
properly sworn to as required by the Constitution of the
United States, and the Michigan Constitution and Statutes?
y Does the affidavit include sufficient facts to
satisfy the probable cause requirements of the United States
and Michigan Constitutions, so as to have permitted the
C-2
officers to enter upon the Defendant’s premises on
December 23, 1996 to search for any evidence of crime or
contraband?
3. Does the affidavit include sufficient facts to
satisfy the probable cause requirements of the Constitutions
of the United States and Michigan, so as to have permitted
the officers to search the Defendants’ home, other than in
order to secure it as an incident to the Defendant’s arrest?
4. Did the officers who executed the search
warrant comply with the requirements of MCL 780.656;
MSA 28.1259(6) prior to their entry into the gun vault?
5. Can the seizure of items upon the
Defendant’s premises, in the home, or from within the gun
vault, be justified under the "plain view" exception to a
valid search and seizure?
Defendants argue that the answer to each of these
questions is NO.
The Prosecution failed to directly respond to the five
issues as framed. Instead, the Prosecutor rephrased the
legal issues into four of its own, and then proceeded to
answer its own questions. The Court undertakes analysis of
the issues raised from the perspective that the Prosecution
argues that the answer to each of these questions raised is
YES.
C-3
BACKGROUND
As a result of an investigation of certain claimed
conduct of Ronald Wolfe, Sr., the Livingston County
Sheriff's Department requested, and was granted, a search
warrant for the home, outbuildings, and property of
Defendants Ronald and Marie Wolfe, all of which are
situated on a 60-acre parcel located in Howell Township.
Livingston County, Michigan.
To that end, the affidavit and proposed search
warrant were drafted by Chief Assistant Prosecutor Daniel
Garber. He signed and dated the same on December 19,
1996. Prior thereto, he interviewed the detective in charge
of the case. Detective Alan Perry; witnesses Harold Van
Patten and William Harp; and reviewed various police
reports. Harp and Van Patten gave both Detective Perry
and Chief Assistant Prosecutor Garber information which
implicated themselves as participants in one or more of the
crimes charged against Ronald Wolfe, Sr. Each were given
assurances by Perry and Garber that they would not be
prosecuted as a result of these admissions, however, no
immunity order was ever entered by the Court.
Although the affidavit and warrant were authorized
by Garber December 19, 1996, it was not taken to a judge
for authorization until December 23, 19976, he day that it
was executed.
As described in the affidavit, the investigation
concerned the theft of two wagon loads of hay, which were
stolen from Oceola Township on August 19, 1996; building
materials, which were stolen from Byron Road on
September 15, 1996; roofing materials, which were stolen
from Fisher Road on September 28, 1996; two golf carts
which were stolen from the Oak Pointe Golf Course on
January 7, 1995; two horses, which were stolen May 23,
1996, from a neighbor who lives four miles away; and an
insurance fraud claim allegedly made by Defendant Ronald
Wolfe, Sr. on or about September 14, 1994.
The warrant was taken to the home of District Judge
Michael K. Hegarty at about seven o’clock in the morning,
December 23, 1996, following which he issued the same.
Thereafter, at about eight o’clock a.m., in reliance upon the
search warrant thus obtained a team of officers from the
Michigan State Police, the Sheriff's Department, and the
City of Brighton entered Defendants’ home and property
and conducted an extensive day-long search of their
residence, grounds, outbuilding and automobiles.
The officers also came armed with a valid warrant
for the arrest of Defendant Ronald Wolfe, Sr., Mr. Wolfe
was immediately arrested upon entry into the residence, and
thereafter he was taken to the Livingston county Jail.
Harold Van Patten had informed the police that he
had constructed a hidden gun vault for Wolfe in the
basement of the home, which was located behind moveable
C-5
bookcases. Discovery of the bookcase hinges and the
subsequent release of its locking device allowed officers to
swing open the shelves from the center, thus revealing the |
otherwise concealed door to the vault. When the officers
found that the vault door was locked with a combination
lock, they attempted to secure the combination from Mrs.
Wolfe, who was still on the premises. When it was
determined that she could not assist them, calls were made
to the Livingston County Jail in an attempt to secure the
combination from Mr. Wolfe. The officers were
determined to enter the vault, with or without the
combination. After securing the combination from Mr.
Wolfe, they entered the vault under the assumed authority
of the search warrant which they had obtained from Judge
Hegarty early that morning.
Within that vault they discovered numerous
weapons, many of which were loaded, together with various
gun parts and ammunition, and a small active marijuana
growing operation. Perry then made a call to the
Prosector’s office for advice on what to do following this
discovery, after which the officers seized the marijuana and
all of the weapons within the home. Ronald Wolfe, Sr. was
a licensed gun dealer, and numerous loaded weapons were
found in many locations throughout the home.
A myria of other items of evidence were also seized
all of which Defendants now seek to have suppressed.
DISCUSSION
ISSUE 1 .
Was the December 19, 1996 affidavit properly
sworn to as required by the Constitution of the United
States, and the Michigan Constitution and statutes?
The Fourth Amendment to the United States
Constitution provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched and the persons
or things to be seized.
Article 1, 411 of the 1963 Michigan Constitution
provides:
The person, houses, papers and possessions of every
person shall be secure from unreasonable searches
and seizures. No warrant to search any place or to
seize any person or things shall issue without
describing them, nor without probable cause,
supported by oath or affirmation. The provisions of
this section shall not be construed to bar from
evidence in any criminal proceeding any narcotic
drug, firearm, bomb, explosive or any other
C-7
dangerous weapon, seized by a peace officer outside
the curtilage of any dwelling house in this state.
It is clear that both the United States and Michigan
Constitutions require search warrants to be based upon
probable cause, supported by oath or affirmation. The
Legislature has enacted MCL 780.651(1); MSA 28.1259(1)
to implement this constitutional mandate.
MCL 780.651; MSA 28.1259(1), provides in
pertinent part as follows:
(1) When an affidavit is made on oath to a
magistrate authorized to issue warrants in criminal
cases, and the affidavit establishes grounds for
issuing warrant pursuant to this act, the magistrate,
if he or she is satisfied that there is probable cause
for the search, shall issue a warrant to search the
house, building, or other location or place where the
property or thing to be searched for and seized is
situated.
(2) An affidavit for a search warrant may be
made by any electronic or electromagnetic means
of communication if both of the following occurs:
(a) The judge or district court
magistrate orally administers the oath or
affirmation to an applicant for a search
warrant who submits an affidavit under this
subsection.
(b) The affiant signs the affidavit.
Proof that the affiant has signed the affidavit
C-8
may consist of an_ electronically or
electromagnetically transmitted facsimile of
the signed affidavit.
(6) If an oath or affirmation is orally
administered by electronic or electromagnetic means
of communication under this section, the oath or
affirmation is considered to be administered before
the judge or district court magistrate.
Affidavits for search warrants must be sworn to by
the person named as the affiant therein. "It is well
established that a search warrant can issue only on probable
cause supported by oath or affirmation. See, MCL
780.651:MSA 28.1259(1)." People v. Lovett, 85 Mich App
534, 538; 272 NW2d 126 (1978), Iv app den, 412 Mich 904
(1982).
Detective Perry, shown on the warrant to be the
affiant, testified during the hearing that he personally took
the affidavit and warrant to Judge Hegarty’s home in
Hartland Township on the morning of December 23, 1996,
where it was presented to the judge, who read the affidavit,
administered him an oath, and signed the warrant.’
'See Vol. L p38. L 25; Vol Ill, p79.L 25-p80. L18:p
119. L 16-18: p 126.L 11-p 130, L3: p 204. L 5-p 204, L2;
p 220. L 3-24.
C-9
It was clear to this Court at the time Perry’s
testimony was offered, that there was something wrong with
his recitation of events, since those having current local
familiarity would know that Judge Hegarty, who had lived
in Hartland Township for some 25 years had moved to
Brighton Township less than a month before December 23,
1996.
Some days after Perry’s testimony on this issue,
during the trial of one of the other pending cases against
Ronald Wolfe, Sr.,? Deputy James Bolling testified that it
was he and Deputy Michael Hawry, both uniformed
officers, who carried Perry’s "affidavit" and warrant to
Judge Hegarty’s Brighton Township home for signature the
early morning hours of December 23, 1996.‘ Bolling
testified that the search team, including the Michigan State
Police entry team, assembled early that morning at the
Detective Bureau to make appropriate preparations for the
search. Perry was in charge and gave Bolling instructions
to take the affidavit and warrant to the judge’s home for
2Judge Hegarty later testified to this move himself when
called as a witness.
3File No.97-9958 FH.
‘March 11, 1998 special record testimony during jury
trial file 97-9958. T p 68-74, 79.
C-10
signature. Neither Bolling nor Hawry were named as the
affiant on the affidavit. |
A careful comparison of the testimony of the judge
and all of the witnesses who testified on the matter, leads
to the inescapable conclusion that Detective Perry did not
take the affidavit to the judge’s home for signature that
morning, as he had testified. Both Bolling and Hawry
demonstrated excellent memory of the incident, were
consistent in their testimony about making the run, and
supported their testimony with Bolling’s log sheet, which
showed that they had made the run at seven o’clock in the
morning, December 23, 1996.° Bolling clearly
remembered having taken the paperwork to the judge’s
home in Brighton Township, as indicated by his memory of
a comment made on they way that the judge might not
appreciate being awakened so early in the morning. The
times indicated on Bolling’s log sheet were consistent with
the times inserted on the affidavit and warrant by the judge
as he was reviewing and signing the same.
Perry was in charge of making preparations for the
search at the Detective Bureau when he gave the paperwork
to Bolling, and assigned he and Hawry the task of making
the run to the judge’s home. Uniformed officers appeared
*March 11, 1998, special record testimony during jury
trial, file 97-9958. T p 53-116.
C-11
at the judge’s home that morning.® Detective Luzod
testified that Perry, a detective, does not wear a uniform
and had not been required to wear a uniform for many
years. Judge Hegarty had no independent recollection of
Perry being at his home to secure the warrant that morning.
The District Judges in Livingston County have been
furnished fax machines in order to streamline the process of
securing search warrants from a judge’s home. However,
Judge Hegarty’s fax machine was apparently unreliable.
When utilized, the officer will initiate a telephone call to
the judges home, be administered an oath, and then fax the
signed affidavit and warrant to the judge for signature.
Where there is an unsuccessful attempt to fax the warrant
to a judge, the officers must then drive it over to the
judge’s home. It is clear from the testimony of Judge
Hegarty, Perry, Bolling, and Hawry that the fax method of
securing a warrant was not utilized here, and there is no
direct evidence in the record that Perry was administered an
oath during any telephone conversation with Judge Hegarty.
In its brief, the Prosecution - argues that Perry
testified that he had called the judge that morning, and that
the judge testified that he talked to Perry on the telephone
that morning. The record does not support the Prosecutor’s
position that either witness testified to these facts. On the
contrary, Perry testified that he personally went to the
°T Vol VIII, p 21, 25-26.
C-12
judge’s home in Hartland for the purpose of presenting the
affidavit. He testified that he was administered an oath at
the judge’s home, and that he judge signed the warrant in
his presence.’ The judge testified that he had no
recollection of talking to Perry on the telephone that
morning, nor any recollection of Perry being at his home
that morning.
The argument presented by the Prosecution presumes
that the procedure used to obtain the search warrant was a
consequence of the fax machine not working that day. The
only testimony presented regarding the functioning of the
fax machine was by Deputy Hawry. He testified that the
fax machine was working, but due to the length of the
affidavit and search warrant, it was more expeditious to just
physically take the paperwork to the judge.* After a break
in his testimony, Deputy Bolling testified that he took the
affidavit and search warrant to the judge because the fax
machine was broken. However, he testified that he was not
aware that the fax machine was broken until the recess
’The Prosecution also notes this testimony from
Detective Perry, however, fails to recognize a conflict.
®See March 11, 1998 special record testimony during
jury trial in file 97-9958. T p 108-116.
C-13
during his testimony, at which time the examining
Prosecutor told him that the fax machine was broken.”
Since giving his testimony in this matter, Detective
Perry abruptly resigned from the Sheriff's Department in
the face of criminal allegations against him suggesting
obstruction of justice in another unrelated case in which he
was involved as an investigating officer. When recalled to
testify by Defendant, he asserted his Fifth Amendment
rights. }
Other unresolved conflicting evidence in this matter
is also disturbing. Particularly, Detective Perry has
identified Lt. Deering, the chief of the Detective Bureau as
one of the persons who —— the search team to the
Wolfe property that morning. Deering has absolutely
denied these assertions, and log sheets attached to
Defendant’s brief indicate that Deering may not have
worked that day. While it is unnecessary to resolve either
this or other conflicts now, they serve as a source of
concern as other testimony is examined.
Testimony establishes that there is no love lost
between Lt. Deering and Defendant Ronald Wolfe, Sr. The
depth of this feeling was graphically illustrated when
Deering testified that if he observed Wolfe on fire, he
%March 11, 1998 special record testimony during jury
trial, file 97-9958. T p 91-95.
See T Vol. II p 33-35.
C-14
would refrain from quenching the conflagration with
water.'' This testimony is one basis for Marie Wolfe’s
argument (brief, p.17) that Perry had a motive to perjure
himself concerning circumstances surrounding the issuance
of the warrant.
This Court has already found on the record that it
does not believe the testimony of Detective Perry that he
personally took the affidavit and warrant to Judge Hegarty’s
home for signature. His testimony in this regard in
incredulous. On the other hand, the Court restates here that
it believes the testimony of both Bolling and Hawry that it
was they, and not Perry, who took the affidavit to the
judge’s home for the purpose of securing a search warrant
that morning. There is adequate evidence in this record that
Detective Perry signed the affidavit, but no credible direct
evidence that Detective Perry was administered the requisite
oath by Judge Hegarty.
Like the judge in People v. Mitchell, 428 Mich. 364;
408 NW2d 798 (1987), Judge Hegarty testified that he had
no independent recollection of administering an oath to
Perry. Also, like the judge in Mitchell, supra, he testified
that from habit he would not authorize a warrant without
having the affiant attest to the facts supporting the search
warrant. However, unlike Mitchell, supra, there is no
"'T Vol VIII, p 118.
C-15
credible : affirmative testimony here that Perry was
administered an oath.
Neither party has directed the Court’s attention to
any case law directly on point. The question is whether
evidence of the judge’s habit, coupled with a signed
affidavit is sufficient to conclude that the affidavit was
supported by oath or affirmation as required by law, when
the name affiant did not have the only contact he claims to
have had with the judge.
People v. Tice, 220 Mich App 47; 558 NW2d 245
(1996), recognizes that a search warrant which lacks an
affiant’s signature is presumed to be invalid, and relying
upon Mitchell, supra, that the presumption can be rebutted
by a showing that the facts in the affidavit were presented
under oath to the magistrate who authorized the warrant.
By corollary, an affidavit and warrant which appears on its
face to be valid, is also subject to the claim that it is invalid
for want of the requisite oath or affirmation.
Here, Judge Hegarty has testified that by custom he
would have administered an oath before signing a search
warrant. Such evidence is admissible on the question of
validity, MRE 406, and is sufficient to overcome the other
evidence on the matter. Hendrickson v. Moghissi, 158 Mich
App 290; 404 NW2d 728 (1987). Accordingly, Defendant’s
motion to quash the search warrant on the basis that the
affiant was not placed under oath is DENIED.
C-16
ISSUE 2
Does the affidavit include sufficient facts to
satisfy the probable cause requirements of the United
States and Michigan Constitutions, so as to have
permitted the officers to enter upon the Defendant’s
premises on December 23, 1996 to search for any
evidence of crime or contraband?
ISSUE 3
3. Does the affidavit include sufficient facts to
satisfy the probable cause requirements of the
Constitutions of the United States and Michigan so as to
have permitted the officers to search the Defendant’s
home other than in order to secure it as an incident to
the Defendant’s arrest?
The same assertions must be addressed for each of
these arguments, so this Court will address them together.
‘Defendants’ arguments raised several issues relating to the
sufficiency of the warrant based upon the allegations
regarding the theft and/or storage of various items, together
with allegations of a claimed insurance fraud. Each
professed crime form the basis for the search warrant and
each will be discussed separately.
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. Jt is not for the affiant to
draw his own inferences. He must state matters
which justify the drawing of them. People v.
Rossborough 387 Mich 183, 199 (1972), [emphasis
supplied] citing 2 Gillespie, Michigan Criminal Law
& Procedure (2d ed), § 868, p 1129.
In reviewing an affidavit in support of a search
warrant the magistrate’s task
_ is simply to make a practical, common-sense
decision whether given all the circumstances set
forth in the affidavit before him including the
"veracity" and "basis of knowledge" of persons
supply hearsay information there is a fair probability
that contraband or evidence of a crime will be found
in a particular place. Illinois v. Gates 462 US 213,
438: 103 S C: 2317;76 L Ed 2d 527.548 (1983)
(citation omitted).
Illinois v. Gates also guides this Court’s review of
the issuance of the search warrant:
[T]he duty of a reviewing court is simply to ensure
that the magistrate had a "substantial basis for ...
C-18
conclud[ing]" that probable cause existed. J/linois v.
Gates, supra, at 238-239. (Citations omitted).
The Prosecution has asked that this Court keep in
mind that:
Affidavits are normally drafted by non-lawyers in
the midst and haste of a criminal investigation.
Technical requirements of elaborate specificity once
exacted under common law pleadings have no
proper place in this area. United States v.
Ventresca, 380 US 102, 108; 85 S Ct 741; 13 L
Ed2d 684 (1985).
While this principal should generally be considered,
it is simply not the case here. Testimony established that
Chief Assistant Prosecuting Attorney Dan Garber drafted
the affidavit and search warrant, and that it was done over
a period of time.'? In fact, the Chief Assistant Prosecutor
that "authored" this search warrant and affidavit interviewed
two of the informants.'’ Perry testified that much of the
language used in the affidavit was the ’author’s choice.’"*
First, Defendants claim that the warrant is devoid of
information concerning the "veracity" and "basis of
T Vol III. 82-83; Vol VI, p9.
°T Vol IV, p 10-11.
See T Vol II. p 176-180: Vol III. p 10-14; Garber
agreed Vol IV, p9.
C-19
knowledge" of persons supplying hearsay information
alleging that there is fair probability that contraband or
evidence of a crime would be found in a particular place,
and second they claim that the information contained in the
affidavit was stale, citing People v. David, 119 Mich App
289; 326 NW2d 485 (1982). Finally, they claim that the
facts contained in the affidavit do not supply any basis to
suspect that evidence of the crimes set out in the affidavit
would be found in the Wolfe residence.
THE HAY
Pages 2 and 3 of the affidavit detail the substance of
the claim dealing with stolen hay. In narrative form, with
facts not attributed to anyone in particular, the reader is
told: "on August 19, 1996 at approximately 12:30 A.M. to
wagon loads of hay were stolen from a hay field ...." It
then continues with details, some of which are apparently
attributed to Deputy Thomas Dorsey’s police report, some
to Harold Van Patten, and some to the affiant, Detective
Perry. The basis for concluding that the stolen hay was
somehow connected to the Wolfe property is found in a
statement attributed to Harold Van Patten.
The hay wagons were hitched to the pickup
trucks and driven to the above premises to be
searched were (sic) the hay was unloaded and
subsequently stacked in the airplane hangar structure
C-20
—
north/northeast of the residence on those premises.
Van Patten noted that the hay wagons had to be
driven through an area of pine trees to get to the
airplane hangar structure and affiant has personally
verified that numerous pine trees are in the vicinity
on the premises ....Affiant has personally verified
that Wolfe has livestock on the premises to be
searched which utilize hay as part of their diet.
Through affiant’s investigation, it has been
determined that Ronald Napoleon ‘Wolfe knew the
prior Lessee of the hay field’s (sic) in question and
knew of the hay field location.
Defendants assert that the credibility of Van Patten
had not been established either by a recitation of any facts
or vouched for in the form of assertions of having
previously provided reliable information to Detective Perry.
Defendants argue that the indicia of credibility attributable
to Van Patten would be the appearance of an admission
against penal interest. However, upon Perry’s first meeting
with Van Patten. Perry informed him that he would not be
prosecuted. '® |
Where material information is omitted from an
affidavit and that information has a bearing upon a probable
cause finding for issuance of a search warrant evidence
seized pursuant to a search warrant which would not have
'*Van Patten testified that Perry "assured me that the
Prosecutor...was not gonna [issue] charges against me as
long as I cooperate." T Vol VI,p 136-137.
C-21
otherwise been obtained but for the absence of that
information must be suppressed if the omission was
intentional. People v. Kort, 162 Mich App 680; 413 NW2d
83 (1987), lv den 430 Mich 860 (1988).
Further, Defendants note that there are statements of
fact in the affidavit which Perry alleges to have personally
verified. Particularly, that there are "numerous pine trees in
the vicinity on the premises;" and that "Wolfe has livestock
on the premises to be searched which utilize hay as part of
their diet." Detective Perry testified that he had never been
to the Wolfe residence before executing the search warrant.
He initially testified that this verification was made during
a fly over.'® Later, he acknowledged that the fly over
occurred after the affidavit was drafted and approved by
Garber.'’ Perry testified that the basis for his personal
verification of presence of livestock was through his
interview with Van Patten, and that he believed
Swackhammer possibly told him the same.'* Detective
Swackhammer was on the premises between July 18, 1995
and September, 1995.'° Both statements regarding
T Vol I. p 15-17.
"T Vol Il. p 72-74.
'8T Vol II. p 173.
'°T Vol V. p 85.
affiant’s personal verification were misleading. Likewise,
literary license was taken in the statement that both Wolfe
and Wolfe, Jr. were armed with automatic pistols. Perry
testified that reference to ’automatic pistols’ was an error by
the author which Perry missed during his review of the
approved affidavit.”
[I]f false statements are made in an affidavit in
Support of a search warrant, evidence obtained
pursuant to the warrant must be suppressed if the
false information was necessary to a finding of
probable cause. 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. (citations omitted) People v. Strumpf, 196
Mich App 218, 224; 492 NW2d 795 (1992), citing
Franks v. Delaware, 438 US 154; 98 S Ct 2674; 57
L Ed2d 667 (1978).
Perry testified that the term "personal verification"
means that he obtained the information through
interviews.*! There is a specific meaning to the term
°T Vol Il. p 173.
"T Vol II p 15-16.
C-23
"personally," such that a person using it as a modifier
should know that it has a meaning distinct from simple
verification through interviews. Information independently
verified lends credibility to the informant and bolsters a
finding of probable cause. People v. Harris, 191 Mich App
422: 479 NW2d 6 (1991); People v. Sellars, 153 Mich App
22, 27; 394 NW2d 133 (1986). An indication of
verification, which is in fact conducted through the same
informant, is deceitful.77 Defendant has established that
false information was inserted with reckless disregard for
the truth. Under Strumpf, the false statements must be
redacted.”
Neither the affidavit nor testimony elicited during
the hearing demonstrate any continuing thefts of hay.
Notwithstanding this fact or the lapse of four months from
the theft to the date of warrant authorization, the magistrate
could conclude from the affidavit that some of the hay
might still be found in the airplane hangar. However, there
is no basis in the affidavit upon which one might come to
the conclusion that there was probable cause to believe that
any of the stolen hay would be found inside the residence.
2T Vol II p 173, 174.
23] anguage in the affidavit that ATF was conducting an
investigation regarding fraud and larceny is also inaccurate.
(T Vol Il, p 115-116) However, this information does not
appear to be necessary to a finding of probable cause.
C-24
BUILDING MATERIALS
The substance of the claim dealing with stolen
building materials is found on page 3 of the affidavit. Like
the allegations concerning the stolen hay, it starts out in
narrative form, not attributed to anyone in particular.
In the early morning hours of September 15, 1996,
building materials were stolen from the construction
site of a new home located at 5195 Byron Road,
Howell Township, Livingston County. Included
within the stolen materials were approximately 172
sheets of 4 x 8 x 7/16 OSB board, twenty 2 x 12 x
16 boards, thirty 2 x 4 x 14 boards, fifteen 2 x 6 x
16 boards and three boxes of 8D nails....
The affidavit goes on to state that the theft was
reported to the police by a third party. Further, that Harold
Van Patten supplied information that he was employed by
Ronald Wolfe, Sr. to construct a new pole barn located
southeast of the Wolfe residence, and that: "during the time
frame in question, Wolfe provided a delivery of building
materials which matched the itemized list of property stolen
from the construction site at 5195 Byron Road."
Additionally, that "Ronald Napoleon Wolfe, Ronald Nap
Wolfe, Jr. and Richard Herbert Culbert subsequently
admitted that those materials had been stolen from the
Byron Road construction site."
C-25
Similar to their claims concerning the hay,
Defendants claim that the warrant is devoid of information
concerning the "veracity" and "basis of knowledge" of
persons supplying hearsay information that there is fair
probability that contraband or evidence of a crime will be
found in a particular place, and that information contained
in the affidavit was false. Particularly, Defendants note
that the allegation that Defendant Ronald Napoleon Wolfe
admitted to Van Patten that the materials were stolen from
the Byron Road construction site is false.
In their brief, the People suggest that Van Patten
saw Defendant deliver to his residence, items matching the
stolen items during the same time frame. The affidavit
asserts that "Wolfe provided a delivery." Van Patten
testified that he went to bed one night and when he got up
the next morning it was there.”
Again, striking the claimed admission from the
affidavit, the magistrate still would have some basis to
conclude that the building materials might be located at the
site of the pole barn. Like the situation with the hay, there
‘s no factual basis in the affidavit upon which one might
come to the conclusion that there was probable cause to
believe that any of the building materials would be found
inside the residence.
4T Vol VI. p 138.
C-26
ROOFING MATERIALS
The claim dealing with the stolen roofing materials
is contained on pages 3 and 4 of the affidavit. This claim
also proceeds in narrative form without reference to the
information source.
During the early morning hours of September 28,
1996 a quantity of roofing materials was stolen from
the construction site of a residence located at 5110
Fisher Road in Oceola Township, Livingston
County. Those materials jncluded dark brown
shingles, ice guard, 15 Ib. felt and 90 Ib. rolled
roofing.
The affidavit recites the discovery of the theft, a
report to the police, and statements, again attributed to
Harold Van Patten that he saw the materials on the roof of
the building at the victim’s property, and
[s]hortly thereafter, Ronald Napoleon Wolfe made a
delivery of roofing materials to the pole barn under
construction on the premises to be searched. The
roofing materials provided by Wolfe matched the
itemized list of the roofing materials stolen from the
Fisher Road construction site and the shingle color
of those materials also matched the color of the
shingles stolen from the Fisher Road construction
site.
C-27
The affidavit again describes an admission from
Wolfe to Van Patten that Wolfe had stolen the roofing
materials at the Fisher Road site so that they could be used
on the pole barn under construction. It goes on to describe
that Van Patten also noticed that the Wolfe shingles were
damaged, consistent with having been thrown off the
victim’s roof, the place where Van Patten had first seen
them. It also recites a confirmation by William Harp that
he personally observed the color of the shingle on Wolfe’s
pole barn.
Defendants assert that the alleged admissions
contained in the affidavit are inconsistent with Detective
Perry’s pre-affidavit write-up of his interview with Van
Patten. The Prosecution relies on this purported admission
to establish probable cause. False and misleading
information must be redacted from the affidavit. Perry
testified that Van Patten stated that Ron Wolfe, Jr. and Rick
Culbert delivered the shingles.” He also acknowledged
that the statement in the affidavit that Wolfe made a
delivery of roofing materials was an assumption.”°
Further, Perry testified that he did not remember a
statement by Van Patten that admissions were made by Ron
Wolfe, Sr. and Ron Wolfe, Jr. that they had stolen the
°5T Vol Ill. p 10.
26T Vol Ill. p 10.
C-28
shingles.” Perry testified that the claimed admission may
have been made to Garber, the drafter of the affidavit."
Again, Perry explained it as an assumption.
...1 can only assume that it did come from him. It’s
half right.
I missed it. It was just poor judgment on my part
and not going further in detail word for word into
the affidavit. (Vol III T p 14, L 2-10).
The affidavit professes further verification of the
stolen roofing materials through affiant’s interview with
William Harp, who observed the pole barn under
construction. The affidavit asserts that Harp "verified the
dark brown color of the shingle provided by Ronald
Napoleon Wolfe which were nailed onto the roof by Harold
Van Patten." William Harp testified that he spoke with
Detective Perry about the golf carts. Further, that he
reviewed the write-up of that interview with the Prosecutor
and Perry, and did not speak to the Prosecutor regarding the
hay, building materials, roofing materials, or horses.”
"T Vol III. p 12, 13.
87 Vol Ill, p 13.
°T Vol VI. p 49-50.
C-29
Again, like the situation with the hay and the
building materials, there are no facts stated in the affidavit
which would cause the magistrate to come to the conclusion
that the roofing materials would be found on or within the
residence.
GOLF CARTS
The golf cart claim is set forth on pages 4 and 5 of
the affidavit.
Affiant is also investigating the theft of two golf
carts from the Oak Pointe Golf Course located at
5341 Brighton Road, Genoa Township, Livingston
County. On or about January 7, 1995 two gas driven
cream in color "Club Car" golf carts were stolen
from the golf course.
The affidavit then describes a report to the Michigan
State Police, and the content of an interview with William
harp who indicated that he (Harp) helped Defendant Ronald
Wolfe steal two cream colored "Club Car" golf carts from
the golf course, that Wolfe gave one of the carts to Harp,
and that the other was taken to the Wolfe property. The
affidavit went on to say:
Affiant has verified through serial numbers that the
golf cart in Harp’s possession was one of the two
carts stolen from the Oak Pointe Golf Course on
January 7, 1995. Additionally, Harold Van Patten
C-30
provided a photograph taken in October, 1996 to
affiant which depicts a golf cart parked near the log
constructed residence on the premises to be
searched. Additionally, Affiant has spoken to
Detective Robert Swackhammer of the Michigan
State Police and Swackhammer indicated that he has
observed golf carts on the property to be searched
while he was there on an unrelated matter.
Defendants again argue that there is no basis for Mr.
Harp’s credibility. Similar to the statements attributed to
Van Patten regarding the hay, Defendants note that the
indicia of reliability attributed to Harp’s statements against
interest is weakened when the officer of immunity is
revealed. They further argue that the statement, "Affiant
has verified through serial numbers that the golf cart in
Harp’s possession was one of the two carts stolen from the
Oak Pointe Golf Course..." was false.
Detective Perry testified that he could not remember
if he verified the golf cart serial number himself, or if he
received the information from Detective Swackhammer.”?
Swackhammer testified that he did not speak with Harp
until after the search o the 23rd.*' Further, that he did not
provide Perry with the ’verified information’ alleged in the
YT Vol III p 26-27.
*'T Vol p 98, Vol VI p 22-23.
C-31
affidavit.*? He further testified that due to a bookkeeping
error at the golf course, the golf cart from Harp’s property
was not listed as missing.” Interestingly, Harp testified
that Wolfe had removed the serial numbers from both carts
in Harp’s garage the night of the theft.”
Again, there are no articulated facts in the affidavit
from which the magistrate could come to the conclusion
that there was probable cause that a golf cart would be
found inside the Wolfe residence.
STOLEN HORSES
The affidavit describes the investigation of the theft
to two horses which were stolen May 23, 1996. The
affidavit describes the interview with Van Patten who said
that in mid May, 1996 Defendant brought two horses to the
property and that they were kept there for approximately
three weeks, then removed on a Saturday. It further states
that:
[t]hrough various witness interviews and
investigations affiant has determined that Ronald
2T Vol VI. p 119.
37 Vol VI. p 100-109.
4T Vol VI. p 69-70.
C-32
Napoleon Wolfe and the owners of the Michigan
Horse Auction at 7335 Old U.S. 23 in Fenton are
close friends. Affiant has further determined that
horse auctions are conducted on Saturdays at the
Michigan Horse Auction premises.
Other statements attributed to Van Patten attempt to
link the horses at the Wolfe property to those that were
stolen. Testimony elicited at the evidentiary hearing reveals
that at the time that the affidavit was created, Perry was
aware that the owner of the horses had contacted the
Michigan Horse Auction, and that the horses had not been
seen.” This is a material omission. Based upon the
overview provided by the Prosecutor in arguing that
probable cause as established, this Court notes that the
affidavit suggests that Van Patten was provided one
photograph and identified one horse. This Court further
notes the Prosecutor’s argument that "...it is reasonable to
infer that the defendant sold the stolen horses...."(Brief p 8).
There are no facts stated in the affidavit which
would justify a conclusion that there was probable cause to
believe that these horses would be found at the Wolfe
property. On the contrary, the clear conclusion to be drawn
is that the horses would not be found there. Indeed, Perry
testified that "[t]he only thing that my investigation led me
°T Vol III. p 48-49.
C-33
to believe was that they had been removed from the
premises." (T Vol III p 39).
INSURANCE CLAIM
The factual allegations concerning the insurance
fraud claim are contained on pages 5-6 of the affidavit.
"Affiant is investigating a potential insurance fraud crime
involving new windows which were installed in the log
construction residence on the above premises to be
searched.” It then details a conversation with William
Harp, who indicated that in the summer of 1994 Ronald
Wolfe stored a shipment of new residential windows at his
(Harp’s) residence. According to Van Patten, Ronald
Wolfe, Jr. began delivering the windows to the Wolfe home
for installation in repeated pickup truck loads to the fully
framed home. It then states:
Affiant, subsequently interviewed Harold Van
Patten’s brother Scott Van Patten, who indicated
that Ronald Napoleon Wolfe had stated that he had
made an insurance claim and recovered money for
his "stolen windows." Affiant believes that the
windows had originally been delivered to the
construction site, and thereafter concealed at Harp’s
residence for sufficient time for Wolfe to make a
fraudulent insurance claim for a phony theft of said
windows.
The only statement regarding an appropriation is
attributed to Scott Van Patten. The Prosecution’s
suggestion that Defendant admitted to Scott Van Patten that
his windows were stolen and that he had made an insurance
claim has no basis in the affidavit or hearing. The
statement not only makes no nexus to an insurance fraud,
it is attributed to a person mentioned for the first and only
time in the same sentence. There is no basis for the
magistrate to determine the veracity of Scott Van Patten,
other than that he is Harold Van Patten’s brother. The
affidavit lacks even pro forma statements that Scott Van
Patten is a credible person. The test to determine if
probable cause exists based upon information received from
an informant is whether the affidavit furnishes facts from
which the magistrate could conclude that the information
was based on personal knowledge and that either the
unnamed person was credible or that the information was
reliable. People v. Poole, 218 Mich App 702, 706; 555
NW2d 485 (1996).
Furthermore, nothing contained in the affidavit
suggests that any evidence related to this speculative crime
ever existed at any place. The affidavit is void of any
information that would amount to a fair probability that
evidence of this chimera would be found on the Wolfe
residence, thus prohibiting the issuance of a search warrant.
*°T Vol III. p 55-57.
C-35
Illinois v. Gates, 462 U.S. 213; 103 S ct 2317; 76 L Ed2d
(1983).
The allegations in the "insurance fraud" portion of
the affidavit are so clearly lacking in facts that one could
hardly find probable cause that a crime had been
committed, much less that evidence of that crime would be
at the Wolfe residence. The affiant’s conclusions based on
his own belief is insufficient to meet the requirements for
issuance of a search warrant. People v. Rosborough, 387
Mich 183; 195 NW2d 255 (1972). The allegations
concerning the insurance claim would not justify the
issuance of a warrant for any portion of the property.
The affidavit for search warrant lists the "person,
place, or thing to be searched” as:
The entire premises including the residence and
outbuildings commonly referred to as 5753 Fisher
Road; said premises include a multi story log
construction residence located on the west side of
Fisher Road in Section I of Howell - Township,
Livingston County, a gray barn with a brown roof
having living quarters in the upper story that is
located south of the log constructed residence, a new
pole barn with a dark brown shingled roof and OSB
siding located southeast of the log constructed
residence and a gray airplane hangar structure with
a steel roof located north/northeast of the log
constructed residence.
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The facts establishing probable cause or the grounds
for the search have been set forth above. As stated with
each alleged crime, there is no evidence which would
justify a search of the entire premises, particularly including
the log constructed residence. The hay was taken to the
airplane hangar, the shingles were taken to the new pole
barn, and the building materials were taken to the area
where the pole barn was to be constructed.” The only -
structures upon the premises in which any evidence of any
of the alleged crimes may be found are the new pole barn
with a dark brown shingled roof and OSB siding, and a
gray airplane hangar structure with a steel roof. A search
of any other structure of the premises was not supported by
probable cause.
Defendants have also objected to the over broad
nature of items to be seized. The affidavit for search
warrant describes the "property to be searched for and
seized, if found" as:
Documents or evidence indicative of the ownership
or occupancy of the above premises; insurance
records including contacts, claim forms and payment
forms; bales of hay; golf carts; records relating to
building materials for the structures on the premises;
shingle samples; building material samples;
photographs; records relating to the purchase,
*'T Vol III. p 200-202; Vol IV. p 29-31.
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ownership or registration of firearms; records
relating to the possession, ownership or registration
of vehicles: records or evidence relating to horse
ownership, sales or veterinary treatment.
MCL 780.652: MSA 28.1259(2) Property subject of
search: provides:
Sec. 2 A warrant may be issued to search for
and seize any property or other thing which is either:
(a) Stolen or embezzled in violation of any
law of this state.
(b) Designed and intended for use or which
is or has been used as the means of committing a
criminal offense.
(c) Possessed, controlled or used wholly or
partially in violation of any law of this state.
(d) Evidence of crime or criminal conduct on
the part of any person.
(e) Contraband.
(f) The bodies or persons of human beings or
of animals, who may be the victims of a criminal
offense.
(g) The object of a search warrant under any
other law of this state providing for the same. If a
conflict exists between this act and any other search
warrant law, this act shall be deemed controlling.
As to "[djocuments or evidence indicative of the
ownership or occupancy of the above premises,” the
affidavit provides: "through investigation, public records,
and affiant’s personal knowledge, it has been determined
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that Ronald Napoleon Wolfe resides at the above place to
be searched." Perry testified to numerous independent
sources wnich verified that Mr. Wolfe lived at the
premises.”* Garber testified that there was not a great deal
of questions that Wolfe owned and occupied the premises,
they had previously verified that he paid taxes and that it
was his mailing address, and people had gone to the
premises to see who lived there.*? Proof of residency was
not required.
The "insurance records including contracts, claim
forms and payment forms" were requested in connection
with the insurance claim, discussed above. Likewise, bales
of hay, golf carts, shingle samples, and building material
samples are discussed above.
In asserting their position regarding the over breadth
of the property to be seized, Defendants note that the search
warrant allows the officers to seize all bales of hay; which
they did, irrespective of the presence of a "funny loop’ in
the rope. This is significant in that there was testimony that
there were bales of hay in the hangar other than those
which Van Patten had described as stolen.“ All of the
hay was seized. Detective Perry testified that he "had it
8T Vol II. p 59.
*T Vol IV. p 27-28.
“T Vol VI. p 189.
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hauled off by the victim Mr. Salom." (T Vol Il. p 133).
Defendants note that fifty-one (51) OSB boards were seized,
whic
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