                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      May 8, 2018
               Plaintiff-Appellant,

v                                                                     No. 337113
                                                                      Oakland Circuit Court
DONALD WAYNE BARNES III,                                              LC No. 2016-257776-FH

               Defendant-Appellee.


Before: SERVITTO, P.J., and MARKEY and O’CONNELL, JJ.

Servitto, J. (concurring in part and dissenting in part).

       I concur with the majority’s conclusion that the trial court’s order quashing the search
warrants for the Perry Street and Brown Road properties should be reversed and the case should
be remanded to the trial court for further proceedings with respect to charges stemming from
evidence found at those properties. I, however, would affirm the trial court’s ruling quashing the
search warrant with respect to defendant’s home on Meadowbrook Lane, suppressing any
evidence obtained from that location, and dismissing any charges against defendant stemming
from evidence obtained from his home.

        A search warrant may only be issued on a showing of probable cause. US Const. Am IV;
Const 1963, art 1, § 11; MCL 780.651(1). “Probable cause for issuance of a search warrant
exists if there is a substantial basis for inferring a fair probability that contraband or evidence of
a crime exists in the location to be searched.” People v Malone, 287 Mich App 648, 663; 792
NW2d 7 (2010), overruled on other grounds by People v Jackson, 498 Mich 246; 869 NW2d 253
(2015). Probable cause must be based on facts presented to the issuing magistrate by oath or
affirmation. People v Brown, 297 Mich App 670, 675; 825 NW2d 91 (2012). “When probable
cause is averred in an affidavit, the affidavit must contain facts within the knowledge of the
affiant rather than mere conclusions or beliefs.” People v Waclawski, 286 Mich App 634, 698;
780 NW2d 321 (2009).
        “When reviewing a magistrate's decision to issue a search warrant, this Court must
examine the search warrant and underlying affidavit in a common-sense and realistic manner.”
Malone, 287 Mich App at 663. This Court must then determine whether a “reasonably cautious
person,” under the totality of the circumstances, “could have concluded that there was a
substantial basis for the magistrate's finding of probable cause.” Id.




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        In this matter, the investigation was into illegal sales of marijuana at the Metro Detroit
Compassion Club (MDCC), a Michigan nonprofit corporation. Based on controlled buys of
marijuana made at that location, there was probable cause to issue a search warrant for the
MDCC facility. In the affidavit supporting the search warrant for a warehouse located on Brown
Road, it was averred that during the execution of the search warrant at the MDCC documents
were found indicating that a marijuana dispensary was located on Brown Road. While perhaps a
stretch, there was sufficient probable cause to issue a search warrant for the Brown Road
property. The same, however, does not hold true with respect to the search warrant issued for
defendant’s home.

        In the affidavit submitted by Detective Eric Buckberry in support of his request for a
search warrant of defendant’s home, Buckberry averred that he was in charge of an ongoing
narcotics investigation at the MDCC. Buckberry swore that he received information that
employees of the MDCC were selling marijuana to persons who had medical marijuana cards but
were not registered patients of anyone at the MDCC, and that he had conducted four controlled
buys at the MDCC with a confidential informant. Buckberry swore that, in his experience,
persons trafficking drugs often document transactions and keep other evidence of their
transactions and that said evidence may be located at defendant’s home. Buckberry swore that
defendant was shown to be the resident agent of MDCC. Buckberry also swore that a vehicle
registered to defendant has been seen at the MDCC numerous times in the past 30 days. The
magistrate signed a search warrant for defendant’s home based on the affidavit provided by
Buckberry.

        Notably absent from the affidavit is any mention of defendant being present at the MDCC
at the time of the controlled buys, or any mention of defendant having taken part in any of the
controlled buys or having been suspected as being part of the illegal drug sales out of the MDCC.
Instead, the affidavit simply stated that defendant’s vehicle was seen at the MDCC numerous
times. With respect to defendant being listed as MDCC’s resident agent, the address of the
resident agent provided on the MDCC articles of incorporation filed with the state was not his
home address. Rather, the address listed was on Joslyn Road in Lake Orion. More importantly,
the naming of a resident agent is simply a statutory requirement of every domestic and foreign
corporation authorized to conduct affairs in the state of Michigan. MCL 450.2241(b). Pursuant
to MCL 450.2241(b):

       Any of the following may serve as resident agent:

       (i) An individual resident in this state whose business office or residence is
       identical with the registered office.

       (ii) A domestic corporation, a domestic business corporation, a foreign
       corporation, a foreign business corporation, a limited liability company, or
       another entity, if it is authorized to conduct affairs or transact business in this state
       and it has a business office identical with the registered office.

Thus, the only requirement of a resident agent is that it have a business office or residence
identical to the registered office of the business. Moreover, the general purpose of a resident
agent is only to serve as an agent of the corporation for purposes of accepting service of process

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on behalf of the corporation. MCL 450.2246. A resident agent need not have any ownership in,
control over, or otherwise participate in the running of the corporation. I would find, then, that
the facts that defendant was listed as the resident agent of the MDCC and his vehicle was there
on several occasions were insufficient to establish probable cause to believe that evidence of
illegal drug sales would be found at his home. Buckberry did not state that he had any
information whatsoever tying defendant to the controlled buys or that the illegal sales being
made by employees of the MDCC were in fact being made by defendant, nor did he attest to any
drug sales or information concerning drug sales being made out of defendant’s home. There was
no substantial basis for inferring a fair probability that drugs or evidence of drug sales would be
found at defendant’s home based on the scant information contained in Buckberry’s affidavit
(Malone, 287 Mich App at 663) and the search warrant for defendant’s home was thus invalid.

        “Ordinarily, if a warrant is determined to be invalid because it lacked a probable-cause
basis or was technically deficient in some other manner, any evidence seized pursuant to that
warrant, or seized subsequently as a result of the initial illegal search, is inadmissible as
substantive evidence in related criminal proceeding.” People v Hellstrom, 264 Mich App 187,
193; 690 NW2d 293 (2004). There are, however, exceptions to this exclusionary rule. In People
v Goldston, 470 Mich 523, 543; 682 NW2d 479 (2004), our Supreme Court adopted the “good-
faith exception” to the exclusionary rule in Michigan. The exclusionary rule “does not bar the
admission of evidence seized in reasonable, good-faith reliance on a search warrant ultimately
found to have been defective.” Id. at 525–26. The Goldston Court relied primarily upon and
adopted the reasoning in United States v Leon, 468 US 897; 104 S Ct 3405; 82 L Ed 2d 677
(1984), wherein it was concluded that the exclusionary rule should be employed on a case-by-
case basis and only where exclusion would further the purpose of deterring police misconduct.

       The Court emphasized, however, that a police officer's reliance on a magistrate's
       probable cause determination and on the technical sufficiency of a warrant must
       be objectively reasonable. Evidence should also be suppressed if the issuing
       magistrate or judge is misled by information in the affidavit that the affiant either
       knew was false or would have known was false except for his reckless disregard
       of the truth. Further, the Court stated that the good-faith exception does not apply
       where the magistrate wholly abandons his judicial role or where an officer relies
       on a warrant based on an affidavit “ ‘so lacking in indicia of probable cause as to
       render official belief in its existence entirely unreasonable.’ ” [Leon 468 US] at
       923. [Goldston, 470 Mich at 531]

I would find that, under the totality of the circumstances in this case, the officers relied on a
warrant to search defendant’s home based on an affidavit so lacking in indicia of probable cause
as to render belief in its existence entirely unreasonable. It is entirely unreasonable to find that
the resident agent of a corporation opens himself up to personal searches whenever the
corporation is suspected of wrongdoing. A resident agent is simply a statutorily required
figurehead authorized to accept service of process on behalf of the corporation—nothing more.
That fact, alone, does not render a resident agent susceptible to giving up his Fourth Amendment
rights due to suspected criminal activity by employees of the corporation. That defendant’s
vehicle was seen at the MDCC on numerous occasions does not change my opinion. Any citizen
can and should be able to visit a nonprofit corporation without giving up his or her Fourth
Amendment rights to have probable cause support a search warrant. I would thus affirm the trial

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court’s ruling quashing the search warrant with respect to defendant’s home on Meadowbrook
Lane, suppressing any evidence obtained from that location, and dismissing any charges against
defendant stemming from evidence obtained from his home.



                                                         /s/ Deborah A. Servitto




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