2.27Affidavit
The affidavit is the beginning of the search warrant process and must set forth grounds and establish probable cause to support the issuance of the warrant. See People v Waclawski, 286 Mich App 634, 698 (2009). In addition, the Michigan search warrant statute provides that “[t]he magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit” before him or her. MCL 780.653.
For a summary of the search warrant process, see the Michigan Judicial Institute’s checklist describing the process for issuing a search warrant and the checklist describing the process for electronically issuing a search warrant.
“‘The affidavit must contain facts within the knowledge of the affiant, as distinguished from mere conclusions or belief. An affidavit made on information and belief is not sufficient. The affidavit should clearly set forth the facts and circumstances within the knowledge of the person making it, which constitute the grounds of the application. The facts should be stated by distinct averments, and must be such as in law would make out a cause of complaint. It is not for the affiant to draw his own inferences. He must state matters which justify the drawing of them.’” People v Rosborough, 387 Mich 183, 199 (1972), quoting 2 Gillespie, Michigan Crim Law & Proc (2d ed), Search and Seizure, § 868, p 1129.
Committee Tip:
Facts to establish probable cause must be contained within the document, and no other information can contribute to the probable cause finding. For example, information that comes from a conversation with a police officer cannot form the basis for probable cause if it is not also contained in the affidavit.
“In Michigan, there is a presumption that an affidavit supporting a search warrant is valid.” People v Mullen, 282 Mich App 14, 23 (2008). See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 3, for information on hearings challenging the validity of a search warrant.
C.Affidavits Based Upon Hearsay Information
An affidavit may be based on hearsay information supplied to the affiant by a named or unnamed person, subject to the following requirements:
“(a) If the person is named, affirmative allegations from which the judge or district court magistrate may conclude that the person spoke with personal knowledge of the information.
(b) If the person is unnamed, affirmative allegations from which the judge or district court magistrate may conclude that the person spoke with personal knowledge of the information and either that the unnamed person is credible or that the information is reliable.” MCL 780.653.
1.Informant Must Speak with Personal Knowledge
“In general, the requirement that the informant have personal knowledge seeks to eliminate the use of rumors or reputations to form the basis for the circumstances requiring a search.” People v Stumpf, 196 Mich App 218, 223 (1992). “The personal knowledge element should be derived from the information provided or material facts, not merely a recitation of the informant’s having personal knowledge.” Id. “If personal knowledge can be inferred from the stated facts, that is sufficient to find that the informant spoke with personal knowledge.” Id. See also People v Martin, 271 Mich App 280, 302 (2006) (“[p]ersonal knowledge can be inferred from the stated facts”).
2.Informant Must Be Credible or Information Must Be Reliable
“MCL 780.653(b) derives from the defunct ‘two-pronged test’ enunciated by the United States Supreme Court in Aguilar v Texas, 378 US 108[](1964), and Spinelli v United States, 393 US 410[](1969), for determining whether an anonymous informant’s tip established probable cause for issuance of a search warrant.” People v Hawkins, 468 Mich 488, 501 (2003). “Under the Aguilar-Spinelli formulation as it was generally understood, a search warrant affidavit based on information supplied by an anonymous informant was required to contain both (1) some of the underlying circumstances evidencing the informant’s basis of knowledge and (2) facts establishing either the veracity or the reliability of the information.” Hawkins, 468 Mich at 501-502.
In Illinois v Gates, 462 US 213 (1983), “the United States Supreme Court abandoned the Aguilar-Spinelli two-pronged test in favor of a ‘totality of the circumstances’ approach.” Hawkins, 468 Mich at 502 n 11. “Accordingly, in determining whether a search warrant affidavit that is based on hearsay information passes Fourth Amendment muster, ‘[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” Id., quoting Gates, 462 US at 238.
A statement in the affidavit that the informant is a “credible person” does not satisfy the statutory requirement set out in MCL 780.653(b). People v Sherbine, 421 Mich 502, 511 n 16 (1984), overruled on other grounds by People v Hawkins, 468 Mich 488 (2003).
Examples of factual information that is probative of “informant credibility” include:
•A course of past performance in which the informant has supplied reliable information;
•Admissions against the informant’s penal interest; and
•Corroboration of non-innocuous details of the informant’s story by reliable, independent sources or police investigation. Sherbine, 421 Mich at 510 n 13.
The statutory alternative of “informational reliability” must also be established by factual averments in the affidavit. In most cases, once “informant credibility” is established, it logically follows that the information is reliable, and vice versa. However, a subtle distinction may be drawn in situations where the method of procuring the information is unknown. In Spinelli, 393 US at 416, the United States Supreme Court explained:
“In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he [or she] is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.”
Thus, by describing the criminal activity in detail, the reliability of the information can be proven independent of informant credibility.
If an affidavit in support of a search warrant is based on other information sufficient in itself to justify the judge or district court magistrate’s finding of probable cause, it is not necessary for purposes of MCL 780.653 to determine whether the informant was credible or whether the information provided was reliable. People v Keller, 479 Mich 467, 477 (2007). In Keller, marijuana discovered in the defendants’ trash was itself sufficient to support the conclusion that there was a fair probability that evidence of illegal activity would be found in the defendants’ home. Id. at 477. Even though an anonymous tip prompted the initial investigation into the defendants’ possible illegal activity, the marijuana alone supported the probable cause necessary to issue a search warrant and “the statutory requirement that an anonymous tip bear indicia of reliability d[id] not come into play.” Id. at 483.