If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

February 10, 2022

v No. 355771

Muskegon Circuit Court

ROBERT DAVID BERNDT, JR., LC No. 19-002520-FH

Defendant-Appellant.

Before: BORRELLO, P.J., and M. J. KELLY and REDFORD, JJ.

PER CURIAM.

Defendant, Robert Berndt, Jr., entered a conditional plea of no contest to one count of 

allowing an intoxicated person to operate a motor vehicle causing death, MCL 257.625(4), (10)(b). 

The conditional plea preserved his right to appeal the circuit court’s order denying his motion to 

suppress the results of a blood test. He appeals now by leave granted.1 For the reasons stated in 

this opinion, we affirm.

I. BASIC FACTS

On September 23, 2018, Berndt ran a stop sign and was struck by a semitruck. As a result 

of the impact, the semitruck flipped over and its driver was killed. After three search warrant

affidavits for a blood draw from Berndt were rejected, the fourth search warrant affidavit was 

approved and his blood was drawn. The lab test found a level of THC in Berndt’s blood sufficient 

for the court to find that he was under the influence of THC at the time of the accident.

Berndt was charged with operating while intoxicated causing death and moving violation 

causing death. On January 23, 2019, he filed with the district court a motion to suppress the 

evidence obtained pursuant to the search warrant. He alleged that the search warrant affidavit 

contained false statements, omitted material information, was supported by evidence that was 

 

1 People v Berndt, unpublished order of the Court of Appeals, entered February 16, 2021 (Docket 

No. 355771).
-2-

illegally obtained, and lacked probable cause. On April 8, 2019, a hearing on defendant’s motion 

to suppress was held in the district court. At that time, Berndt placed a number of stipulations on 

the record involving the search warrant. Per the stipulations, the following information was 

removed from the search warrant affidavit:

That [the affiant] has personally observed the above named driver or been 

informed by ________ who had personally observed the above named driver and 

believes that said driver to be Under the Influence of Intoxicating Liquor and/or 

Controlled Substances based on the following observations:

That said driver has refused a Breathalyzer Test after having been informed 

of his rights under the Implied consent Law.

The three bags were searched by Deputy Vanas and Deputy Bean. Deputy 

Bead advised that residue of plant material consistent with marijuana was located 

in the gray bag.

Additionally, the following information was added to the search warrant affidavit:

Defendant Berndt was administered the [Horizontal Gaze Nystagmus] Test, 

Walk and Turn Test and One Leg Stand Test and passed all tests with no problems.

Defendant Berndt was administered a preliminary breath test (PBT) with 

results showing .000% BAC.

There was no stipulation, however, concerning the first sentence in Appendix A to the 

affidavit. Berndt argued that the sentence was false, was included in the affidavit by the affiant 

knowingly and intentionally or with reckless disregard for the truth, and was also necessary for the 

finding of probable cause. Therefore, he asserted that once it was removed, there would not be 

sufficient information to establish probable cause, and the search warrant and the blood test results 

would have to be suppressed. The challenged sentence provided: “Deputy [Jason] VanAndel 

spoke with Berndt if he had been drinking and using drugs and he hesitated about the use of drugs.”

At the hearing, Deputy VanAndel testified that at the scene of the accident he asked Berndt 

if he had “drank anything today,” and Berndt, “without hesitation,” said, “I haven’t drank any 

alcohol today.” He asked Berndt “if he could pass a drug test.” Berndt “hesitated and . . . then he 

just, sort of, kind of, gave a ho, yeah, sort of, a hesitating unsure answer.” Deputy VanAndel then 

informed Berndt that when there were serious crashes, the police ask the drivers to take a blood 

test. Berndt answered that he would pass a breathalyzer test because he had not been drinking, but 

he was not sure if he would pass a drug test and did not answer whether he would take the blood 

test. Deputy VanAndel told Berndt, if he refused, then they would seek a search warrant for the 

blood test. Deputy VanAndel told Berndt that he would “need more of a clarifying answer,” and 

Berndt said, “if you’re making me—if you’re saying that I have to take one you’re going to 

mandate me to take one then I’ll take one.” Deputy VanAndel replied that he was not “mandating,” 

he was “requesting.” He told Berndt, “I’m not going to make you take something. I will seek a 

search warrant if that’s the case.” Berndt never said that he would take the test. Deputy VanAndel 

did not see any signs of intoxication and did not administer any of the tests to determine whether 

defendant was intoxicated. Deputy VanAndel then had Deputy Kendall Jeppesen, who was at the 
-3-

accident scene, take Berndt down to the jail to seek a search warrant. Deputy VanAndel testified 

that he told Deputy Jeppesen, who prepared the search warrant affidavits, that Berndt did not “give 

me a yes or no answer which I had specifically asked for.”

Deputy Jeppesen testified that Deputy VanAndel specifically told him that he had asked 

Berndt if “he had been drinking and using drugs and he hesitated about the use of the drugs.” 

Deputy VanAndel specifically told him that “he hesitated about the use of drugs.” On the basis of

that information, Deputy Jeppesen wrote the challenged sentence. Both deputies and the sergeant 

testified that they had no intention to submit false information. During the preparation of the 

affidavits, Berndt was administered all the tests for intoxication at the jail, and passed them all.

Finally, the judge who issued the search warrant testified that if he had been presented with 

the search warrant affidavit after the stipulated removals and additions, and even if the disputed 

sentence had also been removed, he still would have found probable cause to grant the search 

warrant.

Following testimony and the parties’ arguments, the district court denied the motion to 

suppress. The court stated that, with regard to the challenged sentence, it did not find any evidence 

of intentional, knowing, false statements or reckless disregard for the truth. It further held that the 

difference between “will you pass a drug test versus did he deny using controlled substances . . . 

[was] a distinction without difference.” The court explained that it looked at the totality of the 

circumstances and found that while there was some superfluous information included in the search 

warrant affidavit, after the stipulated removals and additions, there remained sufficient information 

for a reasonable person to conclude that there was a probability that evidence of a crime would be 

found.

Berndt was bound over to the circuit court. He then filed a second motion to suppress,

which contained essentially the same allegations that were raised in the district court. Additional 

testimony was taken from the deputies and the sergeant. The parties agreed that one of the main 

issues before the court was whether the challenged sentence should be removed because it was 

false and made intentionally or with reckless disregard for the truth. The circuit court issued a 

written opinion denying the motion to suppress. Addressing the challenged sentence, the court 

stated:

Responding to a question about whether he would pass a drug test is tantamount to 

answering whether or not he had used drugs. The controversial sentence is not 

false. Moreover, to the extent it is [in] any manner inaccurate, it clearly is not an 

intentional or knowing falsity nor was it made with reckless disregard for the truth.

Regarding whether the search warrant affidavit, in its totality—after the stipulated information was 

removed and the stipulated addition was included—established probable cause for a search warrant 

to draw Berndt’s blood, the court stated:

This Court finds, as did the District Judge and the judge who issued the warrant, 

that these facts provided sufficient information for a reasonably cautious person to 

conclude there was a substantial basis for a finding of probable cause to believe the 
-4-

Defendant had operated a motor vehicle in violation of MCL 257.601(d)(1) and/or 

MCL 257.625(8), and that evidence of prohibited drugs will be found in his blood.

Thereafter, Berndt entered a conditional plea of no contest to allowing an intoxicated 

person operate a motor vehicle causing death. This appeal by leave granted follows.

II. MOTION TO SUPPRESS

A. STANDARD OF REVIEW

Berndt argues that the circuit court erred by denying his motion to suppress. This Court 

reviews a trial court’s findings of fact at a suppression hearing for clear error and reviews de novo 

its ultimate decision on a motion to suppress the evidence. People v Brown, 297 Mich App 670, 

674; 825 NW2d 91 (2012).

B. ANALYSIS

As this Court explained in Brown, 297 Mich App at 675:

A search warrant may only be issued upon a showing of probable cause. 

Probable cause to issue a search warrant exists if there is a substantial basis for 

inferring a fair probability that evidence of a crime exists in the stated place. 

Probable cause must be based on facts presented to the issuing magistrate by oath 

or affirmation, such as by affidavit. [Citations omitted.]

In Illinois v Gates, 462 US 213, 238-239; 103 S Ct 2317; 76 L Ed 2d 527 (1983), the Court held:

The 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, 

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. And the duty of a reviewing court is simply to ensure 

that the magistrate had a substantial basis for . . . conclud[ing] that probable cause 

existed. [Citation omitted.]

A magistrate’s finding of probable cause and his or her decision to issue a search warrant should 

be given great deference. People v Keller, 479 Mich 467, 474; 739 NW2d 505 (2007). 

Consequently,

a search warrant and the underlying affidavit are to be read in a common-sense and 

realistic manner. Affording deference to the magistrate’s decision simply requires 

that reviewing courts ensure that there is a substantial basis for the magistrate’s 

conclusions that there is a fair probability that contraband or evidence of a crime 

will be found in a particular place. [People v Russo, 439 Mich 584, 604; 487 NW2d 

698 (1992) (quotation marks and citation omitted.]
-5-

Regarding the allegation of false statements in an affidavit, in Franks v Delaware, 438 US 

154, 155-156; 98 S Ct 2674; 57 L Ed 2d 667 (1978), the United States Supreme Court held:

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, as incorporated 

in the Fourteenth Amendment, requires that a hearing be held at the defendant’s 

request.

In People v Franklin, 500 Mich 92, 111; 894 NW2d 561 (2017), our Supreme Court held that 

“even in the absence of the substantial preliminary showing required by Franks[,] a trial court may 

conduct an evidentiary hearing concerning the veracity of a search warrant affidavit[.]” However, 

“the defendant must still meet his or her full burden of establishing by a preponderance of the 

evidence that the affidavit contains a reckless or deliberate falsehood and that with this material 

‘set to one side, the affidavit’s remaining content is insufficient to establish probable cause.’ ” Id.,

quoting Franks, 438 US at 156.

Berndt first argues that deference should not be afforded to the magistrate’s determination 

of probable cause because it was based on content that was later removed and the absence of 

content that was later added by stipulation of the parties. Berndt contends that, after those removals 

and additions, the facts were insufficient to establish probable cause. However, although at the 

time of the magistrate’s decision the affidavit contained information that was later removed and 

did not contain information that was later added, both the district court and the circuit court made 

their findings on the basis of the stipulated removals and additions to affidavit. In addition, the 

magistrate testified before the district court that if he had seen a “corrected” affidavit, he still would 

have found probable cause to grant the search warrant. See People v Czuprynski, 325 Mich App 

449; 926 NW2d 282 (2018) (stating that “only when material misstatements or omissions 

necessary to the finding of probable cause have been made should a search warrant be 

invalidated”). Therefore, reversal is not warranted on this basis.

Next, Berndt argues that the evidence that he passed all the tests regarding whether he was 

under the influence of alcohol should have precluded finding probable cause to support a search 

warrant. This argument misapprehends the purpose for the warrant in this case. The officers did 

not suspect that he was under the influence of alcohol, so the fact that he passed tests designed to 

detect intoxication by alcohol is not dispositive.

Berndt also argues that the following statement in the affidavit was false: “Deputy [Jason] 

VanAndel spoke with Berndt if he had been drinking and using drugs and he hesitated about the 

use of drugs.” Like the district court and the circuit court, however, we find the issue to be one of 

semantics. Although Deputy VanAndel directly asked if Berndt would pass a drug test, the 

question implicitly inquired as to whether Berndt had been using drugs. As a result, neither the 

district court nor the circuit court clearly erred by finding that the statement was not false.

The officers were seeking a blood test to determine if there were any drugs in Berndt’s 

system. Berndt hesitated when asked about whether he could pass a drug test. Implicit in that 

question was an inquiry into whether he had used drugs. Berndt’s contention on appeal that the 
-6-

officer’s “subjective interpretation” of his hesitation was not sufficient for a reasonably cautious 

person to conclude that there was a substantial basis for a finding of probable cause is not supported 

by caselaw. As explained in United States v Cortez, 449 US 411, 418; 101 S Ct 690, 695; 66 L 

Ed 2d 621 (1981), the search warrant process deals with probabilities, and common-sense 

conclusions about human behavior, and that law enforcement officers are permitted to use their 

common sense and, in this case, their many years of experience. The officers were seeking a blood 

test to determine if there were any drugs in Berndt’s system. The affidavit contained a reasonable 

probability that drugs would be found, given Berndt’s hesitation to answer whether he would pass 

a drug test, his failure to consent to a blood draw, and the fact that a K-9 alerted on bags removed 

from the vehicle and the center console of the vehicle. Viewing the affidavit in a “common-sense 

and realistic manner,” we conclude that the court did not clearly err by concluding that a reasonable 

and prudent person would have found a fair probability that the evidence of the suspected crime 

would be found in Berndt’s blood. The court did not clearly err in finding sufficient evidence in 

the affidavit to support the issuance of a search warrant. Therefore, the trial court did not err by 

denying the motion to suppress.

Affirmed.

/s/ Stephen L. Borrello

/s/ Michael J. Kelly

/s/ James Robert Redford