Regarding today's canceled hearing.

This is the defendant's request to dismiss the misdemeanor charges. It was to be put before Judge Schmucker today, which only did not happen due to the last minute reponse from the Michigan Court of Appeals. (Wonder who pulled strings.) What text I removed includes supportive case law references cited that most people would skip over anyway, but I do have the full text of the document on file.

Background

The charges in this case arise out of a Jackson County Animal Control investigation in which 69 horses owned by Defendant Henderson were seized on a farm operated by Defendant Mercier. The Defendants are each charged one count of misdemeanor failure to provide adequate care to 66 horses. The operative time period these offenses are alleged to have occurred is from January 1, 2007, through March 20, 2007.
The testimony at the District Court proceedings indicated that at former ACO Wheaton’s request, Mr. Mercier made arrangements to have Dr. Robert Sray, the veterinarian for Jackson County, meet with him and Former ACO Wheaton at the farm on March 16, 2007, to review the concerns Former ACO Wheaton had after trespassing on the farm during the prior two days. Dr. Sray is the veterinarian that Jackson County Animal Control has relied upon to assist them with animal cruelty cases for the past 29 years. Dr. Sray told Former ACO Wheaton that “it had been a hard winter and it’s nothing that four weeks worth of good weather wasn’t going to fix.” Dr. Sray did not recommend seizing the farm or the horses. He recommended that Animal Control let Mr. Mercier continue taking care of the horses and that Animal Control could monitor the situation.
As a result of not being satisfied with their own veterinarian’s opinions, Animal Control contacted two veterinarians from Michigan State University, Dr. Denis Altemose and Dr. Vicki Chickering. On March 20, 2007, Animal Control obtained a search warrant to seize the horses and to allow the two MSU veterinarians to examine them. The search warrant was obtained based on fraudulent information in the affidavit that was attested to by ACO Machell Dunlap. ACO Dunlap testified that she spoke with Dr. Sray and that he informed her that Mr. Mercier was a personal friend and that he had known Mr. Mercier since he was a child. ACO Dunlap manufactured this information in order to obtain probable cause for an “independent” veterinarian to examine the farm and the horses. The suggestion of a longstanding personal relationship between Dr. Sray and Mr. Mercier was absolutely false.
This fabricated conflict of interest was the primary basis for the finding of probably cause in the affidavit to the search warrant, as well as the other misrepresentations and omissions that are discussed below.

Applicable Law

The Fourth Amendment of the United States Constitution and the parallel provision of the Michigan Constitution guarantee the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. The Fourth Amendment protection against unreasonable searches and seizures is a limitation on governmental action. Therefore, the touchstone of a reviewing court's Fourth Amendment analysis is always “the reasonableness in all the circumstances of the governmental invasion of the citizen's personal security.”
The United States Constitution requires search warrants to be based “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Those seeking the warrant must demonstrate to the magistrate their probable cause to believe that “the evidence sought will aid in a particular apprehension or conviction” for a particular offense. To determine whether probable cause exists, a magistrate must evaluate “whether, given all the circumstances ..., 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.”
Under the exclusionary rule, evidence obtained by methods violating constitutional proscriptions is excluded from use in criminal prosecutions. Fruits of evidence so obtained are excluded as well.
The standards for determining whether erroneous information in an affidavit for a search warrant should be excluded in determining whether probable cause existed to issue the search warrant were set out in Franks v. Delaware.

• (W)e hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.”

• “There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.”
  

In challenging the sufficiency of an affidavit used to support a search warrant, the defendant has the burden of showing, by a preponderance of the evidence, that the affiant knowingly and intentionally, or with a reckless disregard for the truth, inserted false material into the affidavit and that the false material was necessary to the finding of probable cause; the same standard applies to material omissions from affidavits.
For purposes of rule allowing severance of valid portions of a search warrant from invalid portions, there is a multi-step analysis to determine whether severability is applicable; first, court must divide warrant into categories, then, court must evaluate the constitutionality of each category, and, if only some categories are constitutional, court must determine if the valid categories are distinguishable from the invalid ones and whether the valid categories make up the great part of the warrant.
Where tainted information comprises more than a very minor portion of that found in an affidavit supporting a search warrant, the warrant will be held invalid.
Where an affidavit in support of a search warrant includes false information provided either intentionally or with a reckless disregard for the truth, evidence obtained pursuant to that warrant must be suppressed if probable cause would not exist without the misinformation.
Suppression of the evidence is required even if the affidavit remains valid after excising an erroneous statement, when the statement was intentionally false or given with reckless disregard for the truth.

The March 20, 2007 Search Warrant

The following is a list of the false statements, misrepresentations, or omissions that are contained in the affidavit sworn to by ACO Machell Dunlap:
1. “[O]bserved a dead horse in the drive of the property.” This statement is misleading at best, as there was no evidence that the horse died from anything other than natural causes. To date, no investigation has been done into the cause of death of this horse, and both Defendants have not been charged with any crime as a result of the death of this horse.
2. “[O]bserving a collapsed building and multiple piles of garbage....” This statement is misleading at best as the collapsed building and the piles of garbage are in an area of the property that the horses are fenced off from. This was obvious upon casual inspection.
3. “A second horse had an injury that was... untreated.” This statement (referring to Ice who had the injury caused by the wire) is false. Mr. Mercier testified that Ice was injured about a week to ten days before former ACO Wheaton first came to the farm on March 14, 2007. An electrical fence had come loose and one of the wires got wrapped around the horse’s leg. Mr. Mercier removed the wire and treated the wound with bandages and antibiotics. The wound initially got better, but later took a turn for the worse. Mr. Mercier had an appointment to take Ice in for treatment at Dr. Irving’s office on March 16, 2007. He was not able to make that appointment because of the amount of time he had to spend on the farm with Former ACO Wheaton and Dr. Sray on March 16, 2007. Dr. Sray examined the wound on March 16, 2007. The appointment with Dr. Irving was rescheduled for March 21, 2007, but that was cancelled by ACO Dunlap on March 20, 2007, when Animal Control took over the farm. None of this information was provided in the search warrant.
4. “Officer Wheaton did not observe any available food or water for the horses except for one tank with ice.” This statement is false and is contradicted by former ACO Wheaton’s own report. In the report, former ACO Wheaton states regarding her observations on March 14, 2007:

• “RO and Off. Deland observed 25 to 30 square bales of hay in a pile inside the barn.”
• “RO observed a full tank of water in a pen that was completely enclosed and the horses did not have access to it.” (The statement regarding the lack of access is also false)
• “RO...observed...approx 25 horses eating on a round bale....”

In further support of the falsity of the statement in the search warrant, please see the report of Dr. Sray regarding his observations on the farm on March 16, 2007: “There was plenty of good quality alfalfa hay in the form of round bales and the horses were eating.” Also, “There were watering troughs at the front and back of the barn and the horses had free access to water.” Former ACO Wheaton was present at the time of Dr. Sray’s visit to the farm, and presumably, since she walked around with Dr. Sray and Mr. Mercier, made the same observations as Dr. Sray.
5. “The horses appear to be in different stages of malnutrition. The horses ribs, hips, and back bone are all very visible a lot of these horses.” These statements are false. Again, refer to Dr. Sray’s report. Further, the two expert veterinarians that were brought down from MSU as a result of the search warrant, Drs. Altmose and Chickering, both testified that 56 of the 69 horses had a body condition score that was ideal or near ideal.
6. “Officer Wheaton make [sic] contact with several people who stated the owners of the horses may be out of town at this time, and that when they are in town they only cared for the horses once per week.”
The “several people” are not identified in the search warrant. This information must also be stricken from the search warrant as a violation of statute.
7. “Matt Mercier stated that Dr. Sray...is...a personal friend of Mr. Mercier.... Animal Control Officer Dunlap did contact Dr. Sray...who did state...he...had known him [Mr. Mercier] since he was a small child.” ACO Dunlap manufactured this information in order to obtain probable cause for an “independent” veterinarian to examine the farm and the horses. The suggestion of a longstanding personal relationship between Dr. Sray and Mr. Mercier was absolutely false.
8. While the search warrant mentions the examination of the farm and horses by Dr. Sray, the affidavit omits much the of positive statements made by Dr. Sray, and omits that Dr. Sray did not recommend seizing the farm or the horses. In fact, he recommended that Animal Control let Mr. Mercier continue taking care of the horses and that Animal Control could monitor the situation.
The affidavit to the search warrant then finishes with a request for an “impartial veterinarian.” This fabricated conflict of interest was the primary basis for the finding of probable cause in the affidavit to the search warrant, as well as the other misrepresentations and omissions that are discussed above. If the false and misleading information is stricken from the warrant, and the information that was omitted is considered, there is no probable cause to search and seize this farm and the horses.

Relief Requested

Defendants respectfully request that this Honorable Court make a finding that the search warrant dated March 20, 2007 is invalid, suppress all evidence obtained as a result of that search warrant, and dismiss all charges pending or on appeal.

Posted with permission.