            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 26, 2019
               Plaintiff-Appellant,

v                                                                  No. 345243
                                                                   Wayne Circuit Court
DEANDRE TAIWAN HAYWOOD,                                            LC No. 18-003452-01-FH

               Defendant-Appellee.


Before: O’BRIEN, P.J., and BECKERING and LETICA, JJ.

PER CURIAM.

        Following execution of a search warrant at a home in Detroit, police arrested and charged
defendant, Deandre Taiwan Haywood, with possession with intent to deliver less than five
kilograms of marijuana, MCL 333.7401(2)(d)(iii). Defendant filed a motion in the trial court
seeking to quash the search warrant and suppress the evidence obtained from execution of the
warrant. The trial court granted defendant’s motion and dismissed the charge against defendant
without prejudice. The prosecution appeals this order as of right. We reverse the trial court’s
order granting defendant’s motion and dismissing the case, and remand to the trial court for
further proceedings.

                         I. RELEVANT FACTS AND PROCEEDINGS

       On March 15, 2018, and March 16, 2018, Detroit Police Officers Michael Bailey and
Youssef Manna conducted surveillance at defendant’s residence, where they observed multiple
suspected narcotic transactions. Officer Bailey obtained information from the license plate of a
vehicle parked outside the residence and learned that the vehicle’s registered owner was Derrick
Haywood. The officers obtained a photograph of Derrick and concluded that he resembled the
person Officer Bailey observed participating in the suspected narcotic transactions.

        On March 17, 2018, Officer Bailey drafted an affidavit and search warrant for the
residence. The search warrant named Derrick as the seller to be searched, but also noted that
narcotics sellers often change, and a different seller might be present during execution of the
warrant. However, the date in the footer at the bottom of the search warrant and affidavit was
“January 17, 2017,” which was more than a year before the dates of the surveillance activity and
the date that the warrant was actually drafted and signed. Officer Bailey testified at the hearing
                                               -1-
on defendant’s motion to quash that the January date was a typographical error. He explained, “I
have a formatted page that has a footer at the bottom and during each search warrant I will edit
that footer.” He further explained that he forgot to edit the date in the footer of the documents at
issue. After drafting the documents, Officer Bailey faxed a copy of them to the magistrate, who
promptly signed and returned them to Officer Bailey. Stamped across the top of the returned
copy was March 17, 2018, the date that Bailey drafted, and the magistrate signed, the warrant.
The magistrate did not write the date next to her signature.

        On March 17, 2018, the Detroit Police Department executed the search warrant at
defendant’s residence. Detroit Police Officer Ryan Jones recovered three large plastic bags and
a blue box containing marijuana from the back room of the house. Inside two of the bags and the
box were smaller plastic bags containing marijuana, which Officer Jones testified was consistent
with the intent to sell and deliver marijuana. In the same room, Officer Mana also recovered
proof that defendant resided in the home. Officers arrested defendant and took him into custody,
and the prosecution charged him as indicated.

        On July 2, 2018, defendant filed a motion to quash the search warrant and suppress the
evidence seized pursuant to execution of the warrant. He argued that the affidavit and search
warrant were defective because of the incorrect date in the footer of each document. Defendant
further argued that, because the affidavit and search warrant identified Derrick Haywood as the
seller to be searched, and Derrick was in federal prison at the time, Officer Bailey provided
information in reckless disregard of the truth. After an evidentiary hearing, the trial court found
that the search warrant was defective on its face because of the incorrect date in the footer. The
court reasoned:

               The affidavit supports activity in March of 2018, the search warrant is
       dated January 17, 2017. And I was looking to see if maybe January 17, 2018,
       might have been the activity that’s reported in the affidavit but that wasn’t the
       case either. It didn’t happen, the activity didn’t happen until about three months
       later.

              We don’t really know what happened but we do know that the search
       warrant is defective and I’ll grant the defense’s motion.

Accordingly, the court issued the order now appealed from, granting defendant’s motion to
quash the search warrant, and suppressing the evidence and dismissing the case.

                                          II. ANALYSIS

        The prosecution argues that the trial court erred by granting defendant’s motion to quash
the search warrant and suppress the evidence, and by dismissing the case. We agree.

         “This Court reviews a trial court’s findings at a suppression hearing for clear error[,]” and
its ultimate ruling on the motion to suppress de novo. People v Williams, 472 Mich 308, 313;
696 NW2d 636 (2005). “Clear error exists if the reviewing court is left with a definite and firm
conviction that the trial court made a mistake.” People v Armstrong, 490 Mich 281, 289; 806
NW2d 676 (2011). This Court also reviews de novo the application of the exclusionary rule to a
Fourth Amendment violation. People v Jenkins, 472 Mich 26, 31; 691 NW2d 759 (2005).
                                                 -2-
        The Fourth Amendment of the United States Constitution provides, in relevant part, that
“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.” People v
Slaughter, 489 Mich 302, 310-311; 803 NW2d 171 (2011), quoting US Const, Am IV. The
Michigan Constitution provides the same protection as the Fourth Amendment of the United
States Constitution. Id. at 310-311 (citation omitted). In reviewing a magistrate’s decision, this
Court must determine that the magistrate had a substantial basis for finding probable cause and
must evaluate the search warrant and underlying affidavit using a realistic and commonsense
approach. People v Darwich, 226 Mich App 635, 636-637; 575 NW2d 44 (1997). “Probable
cause to issue a search warrant exists where this is a substantial basis for inferring a fair
probability that contraband or evidence of a crime will be found in a particular place.” People v
Kazmierczak, 461 Mich 411, 417-418; 605 NW2d 667 (2000).

        The exclusionary rule generally bars the admission of evidence obtained by the execution
of an unconstitutional search. See People v Hawkins, 468 Mich 488, 498-499; 668 NW2d 602
(2003). The primary purpose of the exclusionary rule is to deter “ ‘official misconduct by
removing incentives to engage in unreasonable searches and seizures.’ ” People v Hellstrom,
264 Mich App 187, 194; 690 NW2d 293 (2004), quoting People v Goldston, 470 Mich 523, 529;
682 NW2d 479 (2004). Michigan, however, recognizes a good-faith exception to the
exclusionary rule, which allows the admission of evidence obtained through a defective search
warrant when the executing officer relied upon the validity of the warrant in objective good faith.
Goldston, 470 Mich at 525-526, 540-541. Relying on federal precedent, Michigan’s Supreme
Court has reasoned, “ ‘suppressing evidence obtained in objectively reasonable reliance on a
subsequently invalidated warrant’ ” produces “ ‘ marginal or nonexistent benefits’ ” and “
‘cannot justify the substantial costs of exclusion.’ ” Goldston, 470 Mich at 530, quoting United
States v Leon, 468 US 897, 922; 104 S Ct 3405, 3420; 82 L Ed 2d 677 (1984). Nevertheless, the
United States Supreme Court has recognized that if a warrant is so facially deficient—“i.e., in
failing to particularize the place to be searched or the things to be seized”—that the executing
officer could not reasonably presume it to be valid, the good-faith exception does not apply. Id.
at 923; 104 S Ct at 3421.

        The prosecution argues that the incorrect date on the search warrant and affidavit did not
render the search warrant invalid. We agree. The prosecution relies, in part, on People v
Hampton, 237 Mich App 143; 603 NW2d 270 (1999), in which the defendant challenged the
validity of a search warrant based on a typographical error that resulted in a different description
of the target premises than that provided by the affidavit. Hampton, 237 Mich App at 148-149.
This Court upheld the validity of the search warrant because the supporting affidavit correctly
described the target premises and the relevant information known by the executing officers
eliminated the possibility that the officers would mistakenly search another premises. Id. at 151-
154.

        Similarly, the Second Circuit Court of Appeals has held that dating errors in an officer’s
affidavit and in the search warrant did not invalidate the warrant. United States v Waker, 534




                                                -3-
F3d 168, 171-172 (CA 2, 2008).1 In Waker, an affidavit correctly dated April 25, 2005,
indicated that the surveillance described in the affidavit took place on “April 26, 2005.” Id. at
170. In addition, “the magistrate judge specified [in the search warrant] an execution deadline of
April 30, 2004, a date that had passed a year earlier.” Id. Based in part on the typographical
errors in these documents, the defendant moved to suppress the evidence seized on grounds that
the search warrant was invalid. Id. at 169. The federal district court denied the defendant’s
motion, and the federal appeals court affirmed, holding that “[t]he types of errors presented by
the search warrant and supporting affidavit in this case do not invalidate the warrant[,]” and that
“ ‘affidavits for search warrants . . . must be tested and interpreted by magistrates and courts in a
commonsense and realistic fashion.’ ” Id., quoting United States v Ventresca, 380 US 102, 108;
85 S Ct 741, 745; 13 L Ed2d 684 (1965). The Second Circuit affirmed its prior explanation that
“when information within a search warrant permits the establishment of intended—but
imperfectly scribed—dates, the document is not rendered deficient.” Id., citing Velardi v Walsh,
40 F3d 569, 576 (CA 2, 1994).

        Likewise, in United States v White, 356 F3d 865, 869 (CA 8, 2004), the Eighth Circuit
Court of Appeals affirmed the denial of a motion to suppress evidence obtained by a search
warrant that had an incorrect date that resulted from the affiant’s use of a preprinted application
form. According to the Appeals Court, “[t]he warrant described the premises and items to be
seized with particularity[,]” and the officer-affiant “testified that it was common practice for him
to re-use application forms when applying for a search warrant.” White, 356 F3d 869. The Eight
Circuit concluded that the inconsistency between the date on the warrant application form and
the date on the search warrant does not eliminate probable cause[,]” noted that the federal district
court found the officer-affiant’s testimony credible, and concluded that execution of the search
warrant was lawful. Id.

        Applying these principles to the case at bar leaves us definitely and firmly convinced that
the trial court clearly erred in determining that the incorrect date in the footer of the search
warrant and supporting affidavit invalidated the search warrant. Williams, 472 Mich at 313.
Using this finding as the basis for its ultimate decision, the court then erred in granting
defendant’s motion to quash the warrant and to suppress the evidence obtained from execution of
the warrant. Id. We agree with the Second Circuit Court of Appeals that courts must “not test
the validity of search warrants and their supporting affidavits in a vacuum[,]” but should
interpret such documents in a commonsense manner. See Waker, 534 F3d at 171.

        The search warrant and affidavit in the present case contained information from which
one could easily establish the correct date that the warrant was signed. See id. The affidavit
stated that Officer Bailey conducted surveillance at defendant’s residence on March 15, 2018,
and March 16, 2018, and detailed the suspected narcotic transactions observed. The affidavit
and the search warrant bear time and date stamps indicating that Officer Bailey faxed the
documents to the magistrate judge for her signature on March 17, 2018 at approximately 11:49
a.m. The search warrant bears an additional date stamp of March 17, 2018, again indicating


1
  Although decisions of the federal courts of appeals are not binding, we may nevertheless find
them persuasive. Abela v General Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).

                                                -4-
when the magistrate signed the warrant. This objective evidence eliminated the possibility that
the magistrate judge had signed the warrant more than a year before Officer Bailey conducted
surveillance and received the necessary approvals for the warrant, and supported the officer’s
testimony that the incorrect date was merely a typographical error. See id. Because
typographical errors do not generally invalidate search warrants and the correct date was
ascertainable from the information within the documents, the trial court erred by finding that the
warrant was invalid. Id.

         Even if the search warrant had been invalid, the trial court erred nonetheless by applying
the exclusionary rule to suppress the evidence obtained with the warrant. There is no evidence
that Officer Bailey acted in bad faith, and the supporting affidavit was not “ ‘so lacking in indicia
of probable cause’ ” that Officer Bailey could not “objectively believe that the warrant was
supported by probable cause.” Hellstrom, 264 Mich App at 199, quoting Leon, 468 US at 923;
104 S Ct at 3421 (quotation marks and citation omitted). The supporting affidavit listed the
dates that Officer Bailey surveilled the target house and how long the surveillance lasted, and
detailed the suspected narcotic transactions he observed, describing the vehicles, persons, and
activities involved. There is no reason to believe, and defendant did not argue during his motion
to suppress, that the facts alleged in the affidavit were false or that Bailey misled the magistrate
with false information. Leon, 468 US at 923; 104 S Ct at 3421; Hellstrom, 264 Mich App at 199.
Given Officer Bailey’s experience with and knowledge of drug transactions, it was entirely
reasonable for him to believe that he would find “contraband or evidence of a crime” at the
surveilled location and, thus, to rely upon the validity of the search warrant and the magistrate’s
determination of probable cause. Kazmierczak, 461 Mich at 417; Goldston, 470 Mich at 526.

        Further, the search warrant was not so facially deficient that Officer Bailey could not
reasonably presume it to be valid. Leon, 468 US at 923; 104 S Ct at 3421. The warrant lists the
location to be searched and the items to be seized with particularity. Id. It is true, as defendant
argued in the trial court, that the warrant incorrectly names the suspected seller as “Derrick
Haywood.” However, Officer Bailey’s error in naming the suspected seller in the search warrant
was irrelevant to the magistrate’s finding that the affidavit, which did not name Derrick as the
suspected seller, established probable cause sufficient to support issuance of the search warrant.
In addition, given his efforts to identify the suspected seller and the result he obtained from those
efforts, it seems unlikely that Officer Bailey would have viewed the warrant as so facially
deficient that he could not reasonably presume it to be valid. Leon, 468 US 897, 923; 104 S Ct at
3421. Because the search warrant was supported by probable cause and not so facially deficient
that the executing officers could not have reasonably relied on its validity, even if the warrant
had been invalid, the good-faith exception to the exclusionary rule would have applied to allow
admittance of the evidence seized pursuant to the warrant.

      Reversed and remanded to the trial court for proceedings consistent with this opinion.
We do not retain jurisdiction.



                                                              /s/ Colleen A. O’Brien
                                                              /s/ Jane M. Beckering
                                                              /s/ Anica Letica

                                                -5-
