Summary
recognizing that a search warrant may be issued on the basis of an affidavit that contains hearsay as long as the police have conducted an independent investigation to verify the information
Summary of this case from People v. WaclawskiOpinion
Docket No. 130561.
Decided October 7, 1991, at 9:35 A.M.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, First Assistant Prosecuting Attorney, for the people.
R. Michael Stillwagon, for the defendant on appeal.
Before: MICHAEL J. KELLY, P.J., and DOCTOROFF and CAVANAGH, JJ.
Pursuant to a conditional plea, defendant pled guilty to operating a vehicle while under the influence of intoxicating liquor (OUIL), third offense, MCL 257.625(6); MSA 9.2325(6), and to operating a motor vehicle with a suspended license, MCL 257.904(1); MSA 9.2604(1). Defendant was sentenced to two years' probation for the OUIL conviction, with the first sixty days to be served in the Washtenaw County Jail or in a residential treatment center. He also received a concurrent sixty-day sentence in the Washtenaw County Jail for operating a motor vehicle with a suspended license. On appeal, defendant argues that the trial court committed error requiring reversal in denying his motion to prohibit the use of a prior conviction for OUIL to enhance the present offense to a third offense and in denying his motion to suppress evidence of the search warrant and blood test results. We disagree and affirm.
Defendant argues that the trial court erred in denying his motion to prohibit use of a 1981 conviction for OUIL to enhance the present charge to OUIL, third offense. Defendant contends that his 1981 guilty plea is invalid because the district court failed to advise him at that time of his right to a trial by jury.
The court rule in effect at the time of defendant's 1981 plea-based conviction, DCR 785.4(d)(1), now MCR 6.610(E), required that, before accepting a guilty plea, the district court "advise the defendant that if his plea is accepted, he will not have a trial of any kind, so he gives up the rights he would have at a trial." We note that, before February 1, 1988, district courts were not required to advise defendants of their Boykin/Jaworski right of confrontation and the privilege against self-incrimination. People v Yost, 433 Mich. 133, 139-140; 445 N.W.2d 95 (1989).
Boykin v Alabama, 395 U.S. 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969); People v Jaworski, 387 Mich. 21; 194 N.W.2d 868 (1972).
A conflict exists regarding whether under DCR 785.4(d) a district court judge was required to personally advise defendants of the rights waived by pleading guilty. In a split decision, the majority in People v Tallieu, 132 Mich. App. 402; 347 N.W.2d 469 (1984), held that the failure of a district court judge to personally advise the defendant of the rights waived by pleading guilty required reversal. The panel in People v Cain, 148 Mich. App. 765; 385 N.W.2d 632 (1985), consideration of certified conflict declined 424 Mich. 894 (1986), agreed with Chief Judge DANHOF'S dissent in Tallieu and held that a district court judge need not orally explain to defendants the rights waived by pleading guilty and that a writing explaining the rights was sufficient.
Defendant's assertion that the holding of Tallieu was adopted by the Michigan Supreme Court in Yost, supra, is without merit. After careful consideration, we find Chief Judge DANHOF'S dissent in Tallieu and the opinion in Cain well-reasoned and persuasive. In addition, we note that the present court rule concerning guilty pleas in district court, MCR 6.610(E), also requires that a defendant be advised that, by pleading guilty, he gives up his right to a trial and other specified trial rights. Significantly, MCR 6.610(E)(4) specifically provides that a defendant may be informed of the trial rights on the record, in a writing made part of the record, or in a writing referred to on the record.
The record in the instant case indicates that defendant's rights were explained in a written form that defendant signed. Defendant has failed to provide this Court with a copy of the written form and, therefore, has failed to meet his burden of demonstrating that his 1981 district court plea was accepted in violation of the applicable court rule.
Defendant also argues that the search warrant was invalid under MCL 780.653; MSA 28.1259(3).
We find no abuse of discretion here. A search warrant may be issued on the basis of an affidavit that contains hearsay. MCL 780.653; MSA 28.1259(3); People v Sherbine, 421 Mich. 502; 364 N.W.2d 658 (1984). Where the information is supplied to the affiant by a named person, the affidavit must contain "affirmative allegations from which the magistrate may conclude that the person spoke with personal knowledge of the information." MCL 780.653; MSA 28.1259(3). It is well settled that a search warrant may be issued where the police have conducted an independent investigation to verify the information supplied by the informant. People v Lucas, 188 Mich. App. 554; 470 N.W.2d 460 (1991); People v Sellars, 153 Mich. App. 22, 27; 394 N.W.2d 133 (1986).
The affidavit in the instant case satisfies the requirements of the statute. The informant was named, the affidavit contains an affirmative allegation that the informant observed defendant driving erratically and weaving, and it indicates that the affiant conducted an independent investigation that produced corroborating evidence. Accordingly, we reject defendant's claims that the affidavit did not contain affirmative allegations that the informant spoke from personal knowledge and that the affidavit is conclusory.
Furthermore, we reject defendant's claim that the affidavit is invalid because a printed form was used. Defendant's reliance on In re Way, 41 Mich. 299; 1 N.W. 1021 (1879), is misplaced. The affidavit here, when viewed by any reasonable person, contains sufficient specific facts to support a finding of probable cause.
Affirmed.