People v. Goldston

Michigan Supreme Court
Lansing, Michigan

Opinion
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 15, 2004

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 122364

GLENN GOLDSTON,

Defendant-Appellee.

_______________________________

BEFORE THE ENTIRE BENCH

CORRIGAN, C.J.

In this case, we must determine whether to recognize a

“good-faith” exception to the exclusionary rule. In United

States v Leon, 468 US 897; 104 S Ct 3405; 82 L Ed 2d 677

(1984), the United States Supreme Court interpreted US

Const, Am IV and adopted a good-faith exception to the

exclusionary rule as a remedy for unreasonable searches and

seizures. Under Leon, 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. The exclusionary rule in Michigan is a

judicially created remedy that is not based on the text of
our constitutional search and seizure provision, Const

1963, art 1, § 11. Indeed, records of the 1961

Constitutional Convention evidence an intent on behalf of

the people of Michigan to retreat from the judge-made

exclusionary rule consistent with the United States Supreme

Court’s interpretation of the Fourth Amendment in Leon. We

therefore adopt the good-faith exception to the

exclusionary rule in Michigan. The purpose of the

exclusionary rule is to deter police misconduct. That

purpose would not be furthered by excluding evidence that

the police recovered in objective, good-faith reliance on a

search warrant. We thus reverse the circuit court’s ruling

suppressing the evidence seized pursuant to the defective

warrant in this case.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

On September 23, 2001, twelve days after the terrorist

attacks of September 11, 2001, police officers observed

defendant collecting money on a street corner. He was

wearing a shirt with the word “Fireman” written on it and

holding a fireman’s boot. He also carried a firefighter’s

helmet and jacket. Defendant told a police officer that he

was collecting money for the firefighters in New York, but

denied being a firefighter himself. The officers

2

confiscated $238 from defendant along with the firefighter

paraphernalia, but did not immediately arrest him.

Thereafter, the officers successfully sought a search

warrant for defendant’s home. The warrant listed the

address as “29440 Hazelwood, Inkster” and authorized the

police to seize the following items:

Police/Fire scanner(s) or radios, fire, EMS,
Police equipment. Any and all emergency
equipment, bank accounts, currency, donation type
cans or containers, any and all other illegal
contraband.

The search uncovered more firefighter paraphernalia, a

firearm, and marijuana. The prosecutor charged defendant

with being a felon in possession of a firearm, MCL

750.224f; possession of a firearm during the attempt or

commission of a felony, MCL 750.227b; two counts of

possession of marijuana, MCL 333.7403(2)(d); and larceny by

false pretenses, MCL 750.218.

Defendant filed a motion to suppress evidence,

asserting both federal and state grounds, US Const, Am IV;

Const 1963, art 1, § 11, which the circuit court granted.

The court ruled that the search warrant affidavit did not

connect the place to be searched with defendant and did not

state the date that the police observed defendant

soliciting money. The court thus concluded that the

affidavit did not establish probable cause for the issuance

3

of a warrant and dismissed the felon in possession, felony-

firearm, and marijuana possession charges.1

The Court of Appeals denied the prosecutor’s delayed

application for leave to appeal. Thereafter, we granted

leave to appeal, limited to the issue whether this Court

should adopt a good-faith exception to the exclusionary

rule.2

II. STANDARD OF REVIEW

Whether Michigan should recognize a good-faith

exception to the exclusionary rule is a question of law

that this Court reviews de novo. People v Gonzalez, 468

Mich 636, 641; 664 NW2d 159 (2003).

III. ANALYSIS

A. The federal good-faith exception

In Weeks v United States, 232 US 383; 34 S Ct 341; 58

L Ed 2d 652 (1914), the United States Supreme Court held

that, in a federal prosecution, the Fourth Amendment barred

the use of evidence obtained pursuant to an illegal search

or seizure. The Court reasoned:

If letters and private documents can thus be
[illegally] seized and held and used in evidence

1
The court did not dismiss the misdemeanor charge of
larceny by false pretenses.
2
467 Mich 939 (2003).

4

 against a citizen accused of an offense, the
protection of the Fourth Amendment declaring his
right to be secure against such searches and
seizures is of no value, and, so far as those
thus placed are concerned, might as well be
stricken from the Constitution. [Id. at 393.]

In Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d

1081 (1961), the United States Supreme Court extended the

Weeks exclusionary rule to the states. The Court reasoned

that because the Fourth Amendment right is enforceable

against the states by virtue of the Due Process Clause of

the Fourteenth Amendment, the same sanction, i.e., the

exclusion of illegally obtained evidence, must apply to

state prosecutions as well as to federal prosecutions. Id.

at 655, 660.

In Leon, the Supreme Court adopted a good-faith

exception to the exclusionary rule. In that case, the

Court rejected the notion that “the exclusionary rule is a

necessary corollary of the Fourth Amendment.” Leon, supra

at 905-906. The Court stated that the exclusionary rule is

not derived from the text of the Fourth Amendment:

The Fourth Amendment contains no provision
expressly precluding the use of evidence obtained
in violation of its commands, and an examination
of its origin and purposes makes clear that the
use of fruits of a past unlawful search or
seizure “[works] no new Fourth Amendment wrong.”
United States v Calandra, 414 US 338, 354 [94 S
Ct 613; 38 L Ed 2d 561] (1974). The wrong
condemned by the Amendment is “fully
accomplished” by the unlawful search or seizure

5

 itself, ibid., and the exclusionary rule is
neither intended nor able to “cure the invasion
of the defendant’s rights which he has already
suffered.” Stone v Powell, [428 US 465, 540; 96
S Ct 3037; 49 L Ed 2d 1067 (1976)] (WHITE, J.,
dissenting). The rule thus operates as “a
judicially created remedy designed to safeguard
Fourth Amendment rights generally through its
deterrent effect, rather than a personal
constitutional right of the party aggrieved.”
United States v Calandra, supra at 348. [Id. at
906.]

The Court clarified that whether the exclusion of evidence

is an appropriate sanction in a particular case is a

separate issue from whether police misconduct violated a

person’s Fourth Amendment rights. The Court further stated

that whether invocation of the “judicially created remedy”

is appropriate involves weighing the costs and benefits in

each particular case. Id. at 906-907. The primary benefit

of the exclusionary rule is that it deters official

misconduct by removing incentives to engage in unreasonable

searches and seizures. The costs, however, include

preventing the use in the prosecutor’s case-in-chief of

trustworthy evidence obtained in reliance on a search

warrant subsequently found to be defective. Id.

The Court expressed concern that rigid adherence to

the exclusionary rule, particularly when law enforcement

officers act in good faith or when their transgressions are

minor, “offends basic concepts of the criminal justice

6

system” and breeds contempt for the law and the

administration of justice. Id. at 907-908. Thus, the

Court recognized the potential for the exclusionary rule to

impede the truth-seeking function of the judiciary,

resulting in guilty parties either evading punishment

altogether or receiving favorable plea bargains. The Court

concluded that “the marginal or nonexistent benefits

produced by suppressing evidence obtained in objectively

reasonable reliance on a subsequently invalidated search

warrant cannot justify the substantial costs of exclusion.”

Id. at 922.

Central to the Court’s reasoning was the exclusionary

rule’s purpose of deterring police misconduct. The Court

opined that no deterrence occurs when police reasonably

rely on a warrant later found to be deficient. Id. at 916-

919.

In short, where the officer’s conduct is
objectively reasonable, “excluding the evidence
will not further the ends of the exclusionary
rule in any appreciable way; for it is painfully
apparent that . . . the officer is acting as a
reasonable officer would and should act in
similar circumstances. Excluding the evidence
can in no way affect his future conduct unless it
is to make him less willing to do his duty.”
[Id. at 919-920, quoting Stone, supra at 539-540
(White, J., dissenting).]

The Court stated that this is particularly true when a law

enforcement officer acts within the scope of, and in

7

objective, good-faith reliance on, a search warrant

obtained from a judge or magistrate. Excluding the

evidence recovered in such cases would have no deterrent

effect on the officer. Id. at 920-921.

The Court rejected the notion that a purpose of the

exclusionary rule is to rectify the errors of judges and

magistrates. It stated that no evidence exists that judges

and magistrates are inclined to ignore the Fourth Amendment

or that the extreme sanction of exclusion is necessary for

“lawlessness” among judges and magistrates. Id. at 916.

The Court could discern no basis for believing that

exclusion of evidence would have a significant deterrent

effect on an issuing judge or magistrate because they are

not “adjuncts to the law enforcement team.” Id. at 917.

The Court 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

8

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.’”3 Id. at

923, quoting Brown v Illinois, 422 US 590, 610; 95 S Ct

2254; 45 L Ed 2d 416 (1975) (Powell, J., concurring in

part).

B. The exclusionary rule in Michigan

Five years after the United States Supreme Court

issued its opinion in Weeks, this Court decided People v

Marxhausen, 204 Mich 559; 171 NW 557 (1919). In

Marxhausen, this Court examined the language of Michigan’s

then-existing search and seizure provision, Const 1908, art

2, § 10:

The person, houses, papers and possessions
of every person shall be secure from unreasonable
searches and seizures. No warrant to search any
place or to seize any person or things shall

3
In Arizona v Evans, 514 US 1, 14-16; 115 S Ct 1185;
131 L Ed 2d 34 (1995), the Supreme Court followed Leon and
held that a court employee’s clerical error did not warrant
the exclusion of evidence. Such a remedy would not have
deterred future errors by court personnel or the behavior
of the arresting officer who reasonably relied on the
erroneous computer record.

9

 issue without describing them, nor without
probable cause, supported by oath or affirmation.

This Court stated that the above provision was “in effect

the same provision found in the Fourth Amendment to the

Federal Constitution.”4 Marxhausen, supra at 562. This

Court then reviewed federal case law, including Weeks, and

concluded that Michigan would follow the federal

exclusionary rule. Id. at 568-574. Thus, long before the

Mapp Court required the states to follow the Weeks

exclusionary rule, this Court elected to follow the

exclusionary rule in Michigan. This Court did not,

however, base its decision on the language of the Michigan

Constitution. In fact, nowhere in Marxhausen did this

Court opine that the language of our Constitution required

the exclusion of evidence seized in violation of our

constitutional provisions. Rather, the Marxhausen Court

followed the exclusionary rule as a matter of policy

4
US Const, Am IV provides:

The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall
not be violated, and 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.

10

preference in favor of the federal law.5 Thus, similar to

the Weeks exclusionary rule, our exclusionary rule in

Michigan is purely a common-law, judge-made rule.

Notwithstanding the Leon Court’s adoption of the

federal good-faith exception to the exclusionary rule, to

date, this Court has not recognized a similar state

exception. The United States Supreme Court has stated,

5
In this vein, the Marxhausen Court stated:

An examination of many cases decided by the
United States Supreme Court involving both the
Fourth and Fifth Amendments satisfies us that the
rule announced by that court will be reached by
careful consideration of three cases decided by
that court, and only three; that by a careful
consideration of these three cases we will be
able to clearly understand the rule laid down by
that, the court of last resort of the nation, and
the reason for the rule. These cases are Boyd v
United States, 116 US 616 (6 Sup Ct 524 [29 L Ed
746 (1886)]); Adams v New York, 192 US 585 (24
Sup Ct 372 [48 L Ed 575 1904)]); and Weeks
[supra].

* * *

We are impressed, however, that a careful
consideration of the Boyd Case in connection with
the Adams Case and the decisions of the State
courts, some of which are cited above, but many
of which are not, taken in the light of what was
said by the court in the Weeks Case, demonstrates
that in the main the United States Supreme Court
and the courts of last resort of the various
States are in accord, and that the Boyd Case does
not conflict, as its critics claim, with the
holdings of the many State courts. [Marxhausen,
supra at 568, 571.]

11

however, that the states are free to impose higher

standards on searches and seizures than the Fourth

Amendment requires. Cooper v California, 386 US 58, 62; 87

S Ct 788; 17 L Ed 2d 730 (1967). Thus, the question arises

whether Const 1963, art 1, § 116 provides more search and

seizure protection than does its federal counterpart.

In interpreting our Constitution, we are not bound by

the United States Supreme Court’s interpretation of the

United States Constitution, even where the language is

identical.7 Harvey v Michigan, 469 Mich 1, 6 n 3; 664 NW2d

767 (2003). Conversely, we are free to interpret our

Constitution consistent with the United States Supreme

6
Const 1963, art 1, § 11 provides:

The person, houses, papers and possessions
of every person shall be secure from unreasonable
searches and seizures. No warrant to search any
place or to seize any person or things shall
issue without describing them, nor without
probable cause, supported by oath or affirmation.
The provisions of this section shall not be
construed to bar from evidence in any criminal
proceeding any narcotic drug, firearm, bomb,
explosive or any other dangerous weapon, seized
by a peace officer outside the curtilage of any
dwelling house in this state.
7
It is not necessary that the wording of our
Constitution be different from that of the United States
Constitution, however, in order for this Court to interpret
our Constitution different from the United States Supreme
Court’s interpretation of the United States Constitution.
People v Smith, 420 Mich 1, 7 n 2; 360 NW2d 841 (1984).

12

Court’s interpretation of the United States Constitution

unless a compelling reason precludes us from doing so. As

this Court stated in Sitz v Dep’t of State Police, 443 Mich

744, 758; 506 NW2d 209 (1993), however, a “‘compelling

reason’ should not be understood as establishing a

conclusive presumption artificially linking state

constitutional interpretation to federal law.” Rather, we

must determine what law “‘the people have made.’” Id. at

759, citing People v Harding, 53 Mich 481, 485; 19 NW 155

(1884). The following factors are relevant in determining

whether a compelling reason exists to interpret the

Michigan Constitution and the United States Constitution

differently:

1) [T]he textual language of the state
constitution, 2) significant textual differences
between parallel provisions of the two
constitutions, 3) state constitutional and
common-law history, 4) state law preёxisting
adoption of the relevant constitutional
provision, 5) structural differences between the
state and federal constitutions, and 6) matters
of peculiar state or local interest. [People v
Collins, 438 Mich 8, 31 n 39; 475 NW2d 684
(1991).]

The above factors are also helpful in determining the

intent of the ratifiers with respect to our state

constitutional provisions.

In People v Nash, 418 Mich 196; 341 NW2d 439 (1983)

(opinion by BRICKLEY, J.), this Court examined the

13

circumstances surrounding the creation of Const 1963, art

1, § 11 to determine whether the provision provided a

higher degree of search and seizure protection than the

Fourth Amendment. See also Sitz, supra at 752-757. In

Nash, this Court stated:

The focus of the Michigan Constitutional
Convention of 1961 was on the effect of Mapp on
the third sentence of Const 1908, art 2, § 10.[8]
The Committee on Declaration of Rights, Suffrage,
and Elections proposed that the final sentence of
Const 1908, art 2, § 10 be deleted in favor of
the phrase “Evidence obtained in violation of
this section shall not be used except as
authorized by law.” The committee reasoned that
the broad holding of Mapp may have invalidated
the final sentence of Const 1908, art 2, § 10.
The merits of that sentence were also considered
by the committee. The committee added the phrase
“except as authorized by law” because:

8
Const 1908, art 2, § 10 was the predecessor of Const
1963, art 1, § 11 and was “in effect the same provision
found in the Fourth Amendment to the Federal Constitution.”
Marxhausen, supra at 562. In 1936, the people ratified an
amendment of Const 1908, art 2, § 10 that added a third
sentence commonly referred to as the “antiexclusionary
clause.” Sitz, supra at 753. That clause stated:

Provided, however, That the provisions of
this section shall not be construed to bar from
evidence in any court of criminal jurisdiction,
or in any criminal proceeding held before any
magistrate or justice of the peace, any firearm,
rifle, pistol, revolver, automatic pistol,
machine gun, bomb, bomb shell, explosive,
blackjack, slungshot, billy, metallic knuckles,
gas-ejecting device, or any other dangerous
weapon or thing, seized by any peace officer
outside the curtilage of any dwelling house in
the state. [Id. at 753-754.]

14

 “Should the definition of the federal limits
imposed on the States with respect to the
admissibility of evidence change in the future,
the Michigan Legislature and the Michigan courts
could incorporate, in statute and court
decisions, those rules with respect to the
admissibility of evidence which reflect the
opinion of the Legislature and the Michigan
courts as to what ought to constitute sound
practice in this State, subject only to the
continuing recognition of the limits set by
federal constitutional supremacy.” Committee
Proposals and Reports, Constitutional Convention
1961, Supporting Report, Committee Proposal No
15, pp 7, 10.

It therefore appears that the committee was
attempting to allow for the possibility of a less
stringent application of the exclusionary rule if
allowed by federal law, rather than attempting to
strengthen Michigan search and seizure
protection.

The debates of the committee of the whole at
the convention considered both the merits of, and
the effect of Mapp on, Const 1908, art 2, § 10.
See 1 Official Record, Constitutional Convention
1961, pp 464-484, 488-533, 674-688. The view
that Mapp was limited to searches of dwellings
and that a limitation on the exclusionary rule
was proper on the merits carried the day.
Attempts to unite Michigan and United States
search and seizure law by adopting the exact
language of the Fourth Amendment in the proposed
Michigan Constitution were defeated. Instead,
the anti-exclusionary-rule proviso of Const 1908,
art 2, § 10 was amended back in to the proposed
constitution. 1 Official Record, Constitutional
Convention 1961, pp 531-688. Ultimately,
language substantially similar to that of Const
1908, art 2, § 10, as amended, was adopted by the
convention and recommended to the people.

The convention’s address to the people
stated that proposed Const 1963, art 1, § 11 was
“No change from Sec. 10, Article II, of the

15

 present constitution except for improvement in
phraseology.” 2 Official Record, Constitutional
Convention 1961, pp 3364. Indeed, the common
understanding of the people upon reading the
proposed constitutional provision could be
nothing but the belief that the search and
seizure provision of the new constitution
represented no change. There had been no
substantive alterations. There is no indication
that in readopting the language of Const 1908,
art 2, § 10 in Const 1963, art 1, § 11 the people
of this state wished to place restrictions on law
enforcement activities greater than those
required by the federal constitution. In fact,
the contrary intent is expressed. [Nash, supra
at 211-213; quoted also at Sitz, supra at 754-756
(emphasis added).]

The Nash Court concluded:

Though the people of the State of Michigan
have corrected this Court when they have believed
it to have gone too far, the historical general
power of this Court to construe the
constitutional provision relating to searches and
seizures has not been removed. The history of
Const 1963, art 1, § 11, and its plain import,
however, suggest that its further expansion, with
the concomitant expansion of the exclusionary
rule to enforce it, should occur only when there
is a compelling reason to do so. [Nash, supra at
214.]

Thus, it is clear from the records of the

constitutional convention that the people favored less

stringent search and seizure protections than required

under the Fourth Amendment at that time. Approval of the

antiexclusionary clause evidenced the people’s intent to

move away from the exclusionary rule of Marxhausen and Mapp

16

as a matter of state constitutional law and to restrict

application of the judicially created remedy.

The text of Const 1963, art 1, § 11 itself is

consistent with the above conclusion that the people

intended to retreat from the exclusionary rule. Const

1963, art 1, § 11 provides:

The person, houses, papers and possessions
of every person shall be secure from unreasonable
searches and seizures. No warrant to search any
place or to seize any person or things shall
issue without describing them, nor without
probable cause, supported by oath or affirmation.
The provisions of this section shall not be
construed to bar from evidence in any criminal
proceeding any narcotic drug, firearm, bomb,
explosive or any other dangerous weapon, seized
by a peace officer outside the curtilage of any
dwelling house in this state.

The antiexclusionary clause, i.e., the last sentence quoted

above, precludes this Court from excluding from evidence

any of the enumerated items. This clause does not

constrain this Court’s authority regarding items not

specifically enumerated in the provision. In other words,

the directive of the people that this Court may not exclude

certain evidence does not require the exclusion of all

other evidence. The antiexclusionary proviso should be

viewed not as a ratification of the common-law exclusionary

rule regarding items enumerated in the proviso, but,

rather, as a restriction on this Court’s authority to apply

17

the judge-made rule to those enumerated items. Because

the proviso does not restrict this Court’s authority

regarding evidence not enumerated in the antiexclusionary

clause, this Court remains free to repudiate or modify the

exclusionary rule by virtue of the fact that it is a

judicially created rule, not a constitutional rule.

Under the above authority, we are free to retain,

modify, or retreat from the Marxhausen rule altogether.

Because we find the reasoning of Leon persuasive, we choose

to embrace Leon as a matter of our interpretive right under

the common law and retreat from the judicially created

exclusionary rule announced in Marxhausen. The goal of the

exclusionary rule, as expressed in Leon, is to deter police

misconduct. Leon, supra at 906-907; see also People v

Hawkins, 468 Mich 488, 510-511; 668 NW2d 602 (2003); People

v Sobczak-Obetts, 463 Mich 687, 711 n 19; 625 NW2d 764

(2001). Thus, the goal of the exclusionary rule would not

be furthered where police officers act in objectively

reasonable good-faith reliance on a search warrant.

Our dissenting colleagues rely on several pre-Leon

cases in contending that deterring police misconduct is not

the only purpose of the exclusionary rule. Post at 7. The

United States Supreme Court in Leon, however, stated that

“the exclusionary rule is designed to deter police

18

misconduct rather than to punish the errors of judges and

magistrates.” Leon, supra at 916. Further, the Court

directed “that suppression of evidence obtained pursuant to

a warrant should be ordered only on a case-by-case basis

and only in those unusual cases in which exclusion will

further the purposes of the exclusionary rule.” Id. at

918. Thus, in determining whether to apply the

exclusionary rule, the proper focus is on the deterrent

effect on law enforcement officers, if any. “If exclusion

of evidence obtained pursuant to a subsequently invalidated

warrant is to have any deterrent effect, therefore, it must

alter the behavior of individual law enforcement officers

or the policies of their departments.” Id. Thus, while

the exclusionary rule may have had other purposes ascribed

to it before Leon, the Leon Court effectively narrowed the

focus of the rule as a remedy for police misconduct.

Further, the Leon Court rejected the notion that the

exclusionary rule is an effective tool in remedying the

errors of judges and magistrates and deterring violations

of the Fourth Amendment generally:

To the extent that proponents of exclusion
rely on its behavioral effects on judges and
magistrates in these areas, their reliance is
misplaced. First, the exclusionary rule is
designed to deter police misconduct rather than
to punish the errors of judges and magistrates.
Second, there exists no evidence suggesting that

19

 judges and magistrates are inclined to ignore or
subvert the Fourth Amendment or that lawlessness
among these actors requires application of the
extreme sanction of exclusion.

Third, and most important, we discern no
basis, and are offered none, for believing that
exclusion of evidence seized pursuant to a
warrant will have a significant deterrent effect
on the issuing judge or magistrate. Many of the
factors that indicate that the exclusionary rule
cannot provide an effective “special” or
“general” deterrent for individual offending law
enforcement officers apply as well to judges or
magistrates. And, to the extent that the rule is
thought to operate as a “systemic” deterrent on a
wider audience, it clearly can have no such
effect on individuals empowered to issue search
warrants. Judges and magistrates are not
adjuncts to the law enforcement team; as neutral
judicial officers, they have no stake in the
outcome of particular criminal prosecutions. The
threat of exclusion thus cannot be expected
significantly to deter them. [Leon, supra at
916-917.]

The reasoning of Leon is persuasive. If judges and

magistrates are “neutral and detached,” the exclusion of

evidence would have no deterrent effect on their practices.

Because the exclusionary rule would not deter judicial

errors, the purpose of the rule would not be served by

requiring exclusion in all cases.9

9
The dissent also criticizes our decision to depart from
precedent by not following our decision in People v Bloyd,
416 Mich 538; 331 NW2d 447 (1982), post at 4, in which this
Court declined to recognize a good-faith exception to the
exclusionary rule. Our decision in Bloyd, however,
predated Leon and declined to adopt a good-faith exception
without any analysis of the issue.
(continued . . . .)

20

 Neither the text of Const 1963, art 1, § 11 nor the

history of the provision ascribes broader protections to

our constitutional provision than the Fourth Amendment

requires. In fact, examination of the 1961 Constitutional

Convention reveals that the delegates favored a less

stringent application of the exclusionary rule at that

time, but felt constrained by Mapp to limit the

antiexclusionary clause to searches occurring outside the

curtilage of a dwelling. Nash, supra at 212-213. As this

Court recognized in Nash, there is no indication that by

adopting Const 1963, art 1, § 11 and adhering to the

language of Const 1908, art 2, § 10, as amended, the people

sought to place restrictions on law enforcement activity

greater than those under the Fourth Amendment. “In fact,

Our dissenting colleagues further contend that our
decision “forsake[s] [our] commitment to our citizens,”
“fail[s] to resist the lure of expediency,” “discard[s]
decades of sound analysis,” and “treat[s] our Constitution
as an impediment.” Post at 1, 4, 10. The dissent fails to
acknowledge, however, the very high cost of the
exclusionary rule, including preventing the prosecutor’s
use of trustworthy evidence obtained in good-faith reliance
on a search warrant because of a subsequently discovered
technical defect in the warrant. See Leon, supra at 906-
907. Excluding the use of such evidence impedes, rather
than promotes, the truth-seeking function of the judiciary
and thereby hinders public confidence in the integrity of
the judicial process. While the dissent favors such a
result, we believe that the high cost of the exclusionary
rule exacts too great a toll on our justice system. See
Leon, supra at 907-908, 922.

21

the contrary intent is expressed.” Id. at 213. The intent

of the delegates in 1961 is consistent with the United

States Supreme Court’s adoption of the good-faith exception

in Leon, and the text of the Constitution is consistent

with recognizing that exception. Because the exclusionary

rule in Michigan is a judicially created, nonbinding rule,

we interpret Const 1963, art 1, § 11 consistent with the

Leon Court’s interpretation of the Fourth Amendment and

adopt the good-faith exception to the exclusionary rule in

Michigan.10

10
By adopting the good-faith exception to the
exclusionary rule in Michigan, we are not overruling Sitz,
which did not involve the scope of the exclusionary rule
but which instead interpreted Const 1963, art 1, § 11 as
affording greater substantive protection than does the
Fourth Amendment in the context of automobile seizures.
Sitz, supra at 776. Rather, we are overruling several
Court of Appeals cases in which the Court declined to
recognize a good-faith exception. See, e.g., People v
Hill, 192 Mich App 54, 56; 480 NW2d 594 (1991); People v
Jackson, 180 Mich App 339, 346; 446 NW2d 891 (1989).

The dissent notes that other jurisdictions have
rejected the good-faith exception. See post at 4-5 n 2.
While the manner in which other states have construed their
respective constitutions and statutes is entirely
irrelevant to our constitutional analysis, we note that
numerous jurisdictions have adopted a good-faith exception.
See e.g., State v Eason, 245 Wis 2d 206; 629 NW2d 625
(2001); McDonald v State, 347 Md 452; 701 A2d 675 (1997);
Ex parte Morgan, 641 So 2d 840 (Ala, 1994); Crayton v
Commonwealth, 846 SW2d 684 (Ky, 1992); People v Camarella,
54 Cal 3d 592; 286 Cal Rptr 780; 818 P2d 63 (1991); Bernie
v State, 524 So 2d 988 (Fla, 1988); State v Saiz, 427 NW2d
(continued . . . .)

22

 C. Application of the good-faith exception in this
case11

Applying the good-faith exception to the exclusionary

rule in this case, we conclude that the circuit court erred

by suppressing the marijuana, firearm, and firefighter

paraphernalia. The police officers’ reliance on the

district judge’s determination of probable cause and on the

technical sufficiency of the search warrant was objectively

reasonable. The information in the affidavit was not false

or misleading, and the issuing judge did not “wholly

abandon[]” her judicial role. See Leon, supra at 923. A

review of the affidavit and search warrant can lead to no

other logical conclusion than that the address listed was

that of defendant.12 Indeed, it probably did not even occur

825 (SD, 1988); United States v Edelen, 529 A2d 774 (DC
App, 1987); State v Wilmoth, 22 Ohio St 3d 251; 490 NE2d
1236 (1986); State v Ebey, 491 So 2d 498 (La App, 1986);
State v Sweeney, 701 SW2d 420 (Mo, 1985); McCrary v
Commonwealth, 228 Va 219; 321 SE2d 637 (1984). Still other
jurisdictions have adopted the good-faith exception to the
exclusionary rule by statute, including Arizona (Ariz Rev
Stat 13-3925), Colorado (Colo Rev Stat 16-3-308), Illinois
(725 Ill Comp Stat 5/114-12(b)(1)), Indiana (Ind Code 35-
37-4-5), and Texas (Tex Code Crim Proc art 38.23(b).
11
The prosecutor concedes that the search warrant was
not based on probable cause. Thus, the search and seizure
was, in fact, unconstitutional.
12
The dissent, post at 12-13 n 7, likens this case to
Groh v Ramirez, 540 US ___ ; 124 S Ct 1284, 1290; 157 L Ed
2d 1068 (2004), in which the search warrant failed
(continued . . . .)

23

to the magistrate or executing officers that the address

was not defendant’s address. Further, the affidavit was

not “so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable.”

Id., quoting Brown, supra.

Although the warrant was later determined to be

deficient, excluding the evidence recovered in good-faith

reliance on the warrant would not further the purpose of

the exclusionary rule, i.e., to deter police misconduct.

Because the exclusionary rule should be employed on a case-

by-case basis and only when exclusion would further the

purpose of the rule, it should not be employed in this

case.

IV. CONCLUSION

We adopt the good-faith exception to the exclusionary

rule in Michigan. The purpose of the rule, i.e., deterring

altogether to describe the “things to be seized.” In that
case, the United States Supreme Court stated that “even a
cursory reading of the warrant . . . would have revealed a
glaring deficiency that any reasonable police officer would
have known was constitutionally fatal.” Id. at 1294. The
search warrant in the instant case does not contain a
“glaring deficiency” such as that present in Groh. Indeed,
the warrant in Groh would not even apprise police officers
of which items to seize, thereby impeding the very purpose
of the search. As we have previously recognized, an
examination of the warrant on which the officers relied in
this case can lead to no logical conclusion other than that
the premises to be searched belonged to defendant.

24

police misconduct, would not be served by applying the

exclusionary rule in this case because the police officers’

good-faith reliance on the search warrant was objectively

reasonable. Thus, the officers committed no wrong that

exclusion of the evidence would deter. Accordingly, we

reverse the circuit court’s ruling suppressing the evidence

and remand for reinstatement of the charges against

defendant.

Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

25

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

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN

Plaintiff-Appellant,

v No. 122364

GLENN GOLDSTON,

Defendant-Appellee.

_______________________________

MARKMAN, J. (concurring).

I concur with the majority in its adoption of the good-

faith exception to the exclusionary rule, an exception

recognized by the United States Supreme Court. I write

separately only in order to respond more fully to the

dissent.

Among myriad other shortcomings, the dissent accuses

the majority of "fail[ing] to resist the lure of

expediency," "forsak[ing] its commitment to our citizens,"

"discard[ing] decades of sound analysis," "contract[ing]

citizen protections," and "treat[ing] our Constitution as

an impediment."1 Post at 1, 4, 5, 10. It must be

1
Further, the dissent characterizes this concurring
opinion as a "diatribe," post at 15; as an "hysterical[]"
argument, post at 15; and as somehow predicated upon its
own "divine notion" of the Constitution's meaning. Post at
(continued . . . .)
understood that this overwrought language stands in support

of the following proposition, which is found nowhere in

either the Michigan Constitution or the United States

Constitution, to wit, no matter how much good faith is

demonstrated by the police in the conduct of a criminal

investigation, no matter how slight an imperfection in such

investigation,2 no matter how serious the crime under

investigation, and no matter how indispensable the evidence

obtained during the investigation in determining the truth

19. What all the dissent's unrestrained language cannot
obscure, however, is that it offers little in the way of
response to the principal arguments set forth in the
majority and concurring opinions: (1) an exclusionary rule
without a good-faith exception is not mandated by either
the United States Constitution or the Michigan
Constitution; (2) the costs of an exclusionary rule without
a good-faith exception are enormously high, while the
benefits are virtually nonexistent; and (3) the
exclusionary rule that has existed in the United States and
in Michigan, unlike that preferred by the dissent, has
always taken into consideration a balancing of costs and
benefits.

One doubtlessly would search in vain over the past
twenty-two years for similar language from other dissenting
justices of this Court whose opposition to my dissenting
colleague's criminal justice decisions, and whose
opposition to the direction in which his decisions took
this Court and the Michigan Constitution for many years,
was no less deeply felt than that of my dissenting
colleague.
2
While the dissent asserts that the imperfection in
this case is not slight, in truth, it is not relevant to
the dissent whether it is slight or not because, under the
dissent’s view, whatever the magnitude of the imperfection,
the evidence must be excluded.

2

of who perpetrated a crime, the prosecutor, in carrying out

his responsibilities on behalf of the people of Michigan,

must proceed to trial without that evidence. That is, the

prosecutor must proceed to trial (if that is even possible

after evidence has been excluded) as though the dead body

in the basement did not exist, as though the illegal

firearm under the sofa was never really there, and as

though the incendiary materials in the garage were merely a

figment of one’s imagination, in the process requiring that

a jury of defendant's peers—a jury comprised of twelve

citizens brought together for the sole purpose of

exercising their judgment and common sense in order to

determine the truth of a criminal charge—render an accurate

and just verdict while being deprived of what may well be

the most relevant available evidence.

In urging such a justice system, the dissent also

gives little consideration to the effect that decision-

making by a blindfolded jury has upon public confidence in

the integrity of a process viewed by the people, correctly,

as indispensable in carrying out the first responsibility

of government—the maintenance of what the Constitution of

the United States describes as "domestic tranquility." The

dissent's denunciation of the majority is in defense of a

justice system in which more juries will be deprived of

3

more evidence, and, therefore, in which more juries will

render more verdicts in which guilt or innocence is

determined inaccurately. The dissent's denunciation is

also in defense of a system in which more citizens serving

on more juries will perform their civic obligation only to

learn afterward, for the first time, that they have been

deprived of access to facts and evidence that might have

been determinative in their decisions. The attitude of

these jurors, as well as the attitude of victims,

witnesses, and the public, toward a system of justice in

which the government's ability to carry out its

responsibility of protecting the people from criminals is

compromised by such a cavalier attitude toward evidence can

only be imagined.

While the exclusion of evidence may, under exceptional

circumstances, be constitutionally compelled, where it is

not compelled—as the United States Supreme Court has

determined to be the case where the police have carried out

their responsibilities in good faith—it is hardly self-

evident why the people of our State would wish to have

more, rather than fewer, critical decisions of guilt or

innocence decided by jurors who each has one of his hands

tied behind his back. Evidence is the lifeblood of the

4

criminal justice process, and it is indispensable in

ensuring fair and just determinations.

Concerning what furthers "citizen protections" under

our Constitution, the dissent's dismissive conclusion that

Michigan has "managed to exist for decades with the

exclusionary rule and our streets have yet to become

teeming with criminals released on 'technicalities,'" post

at 14-15, belies that there is a real, but uncertain,

number of criminals on our streets who have gone either

unprosecuted, prosecuted on lesser charges, or unconvicted,

because evidence has been withheld from a jury. That is an

undeniable and logical reality of an exclusionary rule that

pertains even to good-faith errors on the part of the

police. While perhaps the extent to which our streets are

or are not "teeming" with criminals who would have been

incarcerated but for the absence of a good-faith exception

cannot be precisely calculated, rates of violent crime

have, in fact, grown enormously over recent decades.3 Had

3
The dissent is, of course, correct that crime rates
do not uniformly proceed upward or downward. Post at 15 n
9. This point notwithstanding, violent crime rates in the
United States, and in Michigan specifically, are far higher
today than they were forty years ago. This can be
confirmed by a cursory analysis of Bureau of Justice
Statistics or FBI Uniform Crime figures. According to the
latter, murder rates have grown by approximately 90%,
forcible rape rates by 237%, aggravated assault rates by
240%, and overall violent crime rates by 144%. (accessed July 9,
2004).
4
The dissent finds this discussion to be
"hysterical[],” post at 15. The dissent apparently wishes
to have its cake and eat it as well, i.e., being allowed to
criticize the majority for the damage that it allegedly is
doing to the cause of constitutional government, while
being immune itself from criticism for the consequences of
its own position. If, from the perspective of the dissent,
the cost of the majority position is the loss of
constitutional protections, from the perspective of the
majority, the cost of the dissent's position is that,
absent any constitutional imperative and absent any
conceivable impact in deterring unconstitutional searches
or seizures, the dissent's position would result in more
violent offenders populating our streets. Certainly, this
is not a consequence that is intended or desired by the
dissenting justices, but it nonetheless would be the
inevitable consequence of their position. There is no free
lunch for the dissent. It is entitled to argue its
positions, but it is no more immune than the majority from
accountability and responsibility for these positions.
Further, it should be understood that the dissent does not
dispute what this opinion asserts about the practical
consequences of its far-reaching exclusionary rule; it
merely responds that such assertions are "hysterical[]."

6

 Despite the hyperbolic rhetoric of the dissent, the

rights of criminal defendants have remained well-protected,

both in the federal system and in those growing numbers of

states in which the good-faith exception to the

exclusionary rule has been adopted.5 On the other hand, the

rights of everyone else, and of society generally, have

been better protected because the criminal justice system

has been allowed to assess a defendant's guilt or innocence

on the basis of the full range of relevant evidence. And,

as a result, in some unknown, but very real, number of

cases, criminal defendants, who, under the dissent's

approach, would have been left on the streets to continue

to prey upon their communities, have been convicted of

5
Moreover, the rule advanced by the dissent, i.e., an
exclusionary rule without a good-faith exception, by
definition, could have no effect in deterring even a single
improper search; all that this rule could do would be to
afford a serendipitous windfall to an occasional guilty
party by enabling such person to exclude reliable,
inculpatory evidence from trial. "[A]ny rule of evidence
that denies the jury access to clearly probative and
reliable evidence must bear a heavy burden of
justification, and must be carefully limited to the
circumstances in which it will pay its way by deterring
official lawlessness." Illinois v Gates, 462 US 213, 257-
258; 103 S Ct 2317; 76 L Ed 2d 527 (1983)(White J.,
concurring). The hard-to-understand calculus of the
dissent's approach would be to deny the jury access to
clearly probative and reliable evidence without any
apparent countervailing benefit in deterring official
lawlessness.

7

serious crimes on the basis of trustworthy evidence and

after full due process of law.

The dissent asserts that it is "unclear how an

allegedly increasing crime rate is relevant in determining

our citizens' constitutional rights . . . ." Post at 15.

That is, of course, neither my position nor that of the

majority. Increasing crime rates have been cited only in

response to the dissent's suggestions that there are no

adverse consequences to its position and that Michigan has

"managed to exist" despite the absence of a good-faith

exception. More accurately, my position is that the

absolutist exclusionary rule of the dissent's constitution,

has little to do with the exclusionary rule of the

constitutions that actually prevail in the United States

and Michigan.

The dissent seems agitated that this concurrence would

invoke such considerations as the impact of the dissent's

rule upon crime, the absence of deterrent effect of the

dissent's rule on police misconduct, and the adverse impact

of the dissent's rule upon the integrity of the justice

system. These considerations allegedly are in contrast to

the dissent's more focused concern about the Constitution.

The problem with this analysis is that the dissent's

8

constitution is not that of James Madison,6 not that of the

United States Supreme Court, and not that ratified by the

people of Michigan. Rather, the United States Supreme

Court has made clear that the exclusionary rule is of

“quasi-constitutional” dimension and that its applicability

in particular contexts is a function of a variety of

pragmatic and balancing considerations.7 While the dissent

6
That the dissent's rule is not part of James
Madison's Constitution is manifest by the absence of any
mention in the Constitution of such a rule as well as by
consistent early judicial practice. As summarized by one
scholar:
[S]earches of private premises generally
required warrants. In all other circumstances,
warrants were unnecessary. Any person, including
a private citizen, acting on his own, could
search and seize at his own peril. If the search
uncovered contraband or property otherwise
subject to forfeiture, then he was completely
justified. If, however, the search proved
fruitless, then the party who made the search was
liable to damages unless he could find the
shelter of a statute. A search conducted in good
faith pursuant to statutory authority was
considered reasonable. [Harris, Back to basics:
An examination of the exclusionary rule, 37 Ark L
R 646, 647 (1983).]
See also Gelston v Hoyt, 16 US 246; 4 L Ed 381 (1818); Wood
v United States, 41 US 342; 10 L Ed 987 (1842).
7
While, from the dissent's perspective, the majority’s
approach to interpreting the breadth of the exclusionary
rule may seem "distinctive" or "idiosyncratic," post at 15-
16 n 9, it is essentially indistinguishable from that of
the United States Supreme Court in view of that Court's
characterization of the rule as a uniquely "judicially
created" remedy. Pennsylvania Bd of Probation v Scott, 524
US 357, 363; 118 S Ct 2014; 141 L Ed 2d 344 (1998).

9

is entitled to its view that the rule should be applied

more broadly, and contain fewer exceptions, the dissent

should not confuse its own views with those of either the

United States Constitution or the Michigan Constitution.

Among other limitations on the exclusionary rule, the

United States Supreme Court has concluded that the rule

does not apply retroactively unlike most rules that are

constitutional, Linkletter v Walker, 381 US 618; 85 S Ct

1731; 14 L Ed 2d 601 (1965); the rule does not apply to

those lacking standing, Alderman v United States, 394 US

165; 89 S Ct 961; 22 L Ed 2d 176 (1969); the rule does not

apply to grand jury proceedings, United States v Calandra,

414 US 338; 94 S Ct 613; 38 L Ed 2d 561 (1974); the rule

does not apply to civil proceedings, United States v Janis,

428 US 433; 96 S Ct 3021; 49 L Ed 2d 1046 (1976); the rule

does not apply to deportation proceedings, Immigration &

Naturalization Service v Lopez-Mendoza, 468 US 1032; 104 S

Ct 3479; 82 L Ed 2d 778 (1984); the rule does not apply

where the unlawfully seized evidence is used against a

parolee in parole revocation hearings, Pennsylvania Bd of

Probation v Scott, 524 US 357; 118 S Ct 2014; 141 L Ed 2d

344 (1998); the rule does not apply where evidence is used

to impeach a defendant in a criminal proceeding, James v

Illinois, 493 US 307; 110 S Ct 648; 107 L Ed 2d 676 (1990);

10

the rule does not apply in the context of habeas corpus

relief where the state has provided an opportunity for full

and fair litigation of the Fourth Amendment claim, Stone v

Powell, 428 US 465; 96 S Ct 3037; 49 L Ed 2d 1067 (1976);

the rule does not apply where the police have acted in

objectively reasonable reliance upon a statute that is

subsequently declared unconstitutional, Illinois v Krull,

480 US 340; 107 S Ct 1160; 94 L Ed 2d 364 (1987); the rule

does not apply if the government can be said to have also

discovered the evidence through independent means,

Silverthorne Lumber Co v United States, 251 US 385; 40 S Ct

182; 64 L Ed 319 (1920); the rule does not apply if the

connection between the illegality and the seizure has

become so attenuated as to dissipate the taint, Nardone v

United States, 308 US 338; 60 S Ct 266; 84 L Ed 307 (1939);

the rule does not apply where the evidence would at some

future time likely have been discovered, Nix v Williams,

467 US 431; 104 S Ct 2501; 81 L Ed 2d 377 (1984); the rule

does not apply where the police have in good faith relied

upon a defective warrant, United States v Leon, 468 US 897;

104 S Ct 3405; 82 L Ed 2d 677 (1984); Massachusetts v

Sheppard, 468 US 981; 104 S Ct 3424; 82 L Ed 2d 737 (1984);

and the rule does apply, even with respect to substantial

and deliberate violations of the Fourth Amendment, only "in

11

the absence of a more efficacious sanction . . . ." Franks

v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667

(1978).

“Neither [these] cases nor any others hold that

anything which deters illegal searches is thereby commanded

by the Fourth Amendment. The deterrent values of

preventing the incrimination of those whose rights the

police have violated have been considered sufficient to

justify the suppression of probative evidence even though

the case against the defendant is weakened or destroyed.

We adhere to that judgment. But we are not convinced that

the additional benefits of extending the exclusionary rule

to other defendants would justify further encroachment upon

the public interest in prosecuting those accused of crime

and having them acquitted or convicted on the basis of all

the evidence which exposes the truth.” Alderman, supra at

174-175.

“Despite its broad deterrent purpose, the exclusionary

rule has never been interpreted to proscribe the use of

illegally seized evidence in all proceedings or against all

persons. As with any remedial device, the application of

the rule has been restricted to those areas where its

remedial objectives are thought most efficaciously served.”

Calandra, supra at 348.

12

 “In deciding whether to extend the exclusionary rule

to grand jury proceedings, we must weigh the potential

injury to the historic role and functions of the grand jury

against the potential benefits of the rule as applied in

this context. It is evident that this extension of the

exclusionary rule would seriously impede the grand jury.”

Id. at 349.

“Against this potential damage to the role and

functions of the grand jury, we must weigh the benefits to

be derived from this proposed extension of the exclusionary

rule. Suppression of the use of illegally seized evidence

against the search victim in a criminal trial is thought to

be an important method of effectuating the Fourth

Amendment. But it does not follow that the Fourth

Amendment requires adoption of every proposal that might

deter police misconduct.” Id. at 350.

“‘Illegal conduct’ is hardly sanctioned, nor are the

foundations of the Republic imperiled, by declining to make

an unprecedented extension of the exclusionary rule to

grand jury proceedings where the rule's objectives would

not be effectively served and where other important and

historic values would be unduly prejudiced.” Id. at 355 n

11.

13

 “[W]e conclude that exclusion from federal civil

proceedings of evidence unlawfully seized by a state

criminal enforcement officer has not been shown to have a

sufficient likelihood of deterring the conduct of the state

police so that it outweighs the societal costs imposed by

the exclusion. This Court, therefore, is not justified in

so extending the exclusionary rule.” Janis, supra at 454.

“‘[It] will not do to forget that the [Weeks] rule is

a rule arrived at only on the nicest balance of competing

considerations and in view of the necessity of finding some

effective judicial sanction to preserve the Constitution's

search and seizure guarantees. The rule is unsupportable

as reparation or compensatory dispensation to the injured

criminal; its sole rational justification is the experience

of its indispensability in '[exerting] general legal

pressures to secure obedience to the Fourth Amendment on

the part of federal law-enforcing officers.' As it serves

this function, the rule is a needed, but [grudgingly]

taken, medicament; no more should be swallowed than is

needed to combat the disease. Granted that so many

criminals must go free as will deter the constables from

blundering, pursuance of this policy of liberation beyond

the confines of necessity inflicts gratuitous harm on the

public interest as declared by Congress.’ Amsterdam,

14

Search, Seizure, and Section 2255: A Comment, 112 U. Pa. L.

Rev. 378, 388-389 (1964).” Janis, supra at 454 n 29.

“[T]he policies behind the exclusionary rule are not

absolute. Rather, they must be evaluated in light of

competing policies.” Stone, supra at 488.

“The answer is to be found by weighing the utility of

the exclusionary rule against the costs of extending it to

collateral review of Fourth Amendment claims.” Id. at 489.

“[T]he contribution of the exclusionary rule, if any,

to the effectuation of the Fourth Amendment is minimal and

the substantial societal costs of application of the rule

persist with special force.” Id. at 494-495.

“In these circumstances we are persuaded that the

Janis balance between costs and benefits comes out against

applying the exclusionary rule in civil deportation

hearings held by the INS.” Lopez-Mendoza, supra at 1050.

“As with any remedial device, application of the

exclusionary rule properly has been restricted to those

situations in which its remedial purpose is effectively

advanced. Thus, in various circumstances, the Court has

examined whether the rule's deterrent effect will be

achieved, and has weighed the likelihood of such deterrence

against the costs of withholding reliable information from

the truth-seeking process.” Krull, supra at 347.

15

 “[T]o the extent that application of the exclusionary

rule could provide some incremental deterrent, that

possible benefit must be weighed against the ‘substantial

social costs exacted by the exclusionary rule.’ When we

indulge in such weighing, we are convinced that applying

the exclusionary rule in this context is unjustified.” Id.

at 352-353 (citation omitted).

“[B]ecause the rule is prudential rather than

constitutionally mandated, we have held it to be applicable

only where its deterrence benefits outweigh its

‘substantial social costs.’” Pennsylvania Bd of Probation,

supra at 363.8

It is for these reasons that there are a variety of

considerations—extending far beyond those that the dissent

would assess—that are fully relevant in determining whether

the exclusionary rule is applicable in a particular

instance, and that explain why the rule is not as broad or

as absolute as the dissent would prefer.

Further, it must be recognized—and the majority

opinion addresses this point, see ante at 14 n 8—that as

8
“The history of Const 1963, art 1, § 11, and its
plain import, however, suggest that its further expansion,
with the concomitant expansion of the exclusionary rule to
enforce it, should occur only when there is a compelling
reason to do so.” People v Nash, 418 Mich 196, 214; 341
NW2d 439 (1983).

16

far back as 1936, the Michigan Constitution exempted from

the exclusionary rule "any narcotic drug or drugs, any

firearm, rifle, pistol, revolver, automatic pistol, machine

gun, bomb, bomb shell, explosive, blackjack, slingshot,

billy, metallic knuckles, gas-ejecting device, or any other

dangerous weapon or thing, seized by any peace officer

outside the curtilage of any dwelling house in this state."9

That is, the Michigan Constitution from 1936 until 1961,

when Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081

(1961), introduced a uniform national rule, imposed a

limitation on the exclusionary rule that was considerably

more restrictive than its federal counterpart. See, e.g.,

People v Gonzales, 356 Mich 247; 97 NW2d 16 (1959); People

v Winkle, 358 Mich 551, 556; 100 NW2d 309 (1960).10

Moreover, this relationship was sought to be continued by

the 1963 constitution in which, two years after Mapp, its

9
In 1936, the people ratified an amendment of Const
1908, art 2, § 10, which added the above language, now
known as the anti-exclusionary clause.
10
See also People v Winterheld, 359 Mich 467; 102 NW2d
201 (1960), which held that the exclusionary rule in
Michigan does not preclude application of the so-called
“silver platter” doctrine in which evidence, unlawfully
seized in a foreign jurisdiction, can be utilized by
Michigan police officers. "With respect to acts beyond its
borders, by officers of another State, such guarantees do
not extend to them and, hence, the reason for the rule in
that regard disappears and, with it, the rule." Id. at 471
(emphasis added).

17

drafters again limited the reach of the exclusionary rule

by inserting language substantially similar to that of

Const 1908, art 2, § 10 (exempting from the exclusionary

rule “any narcotic drug, firearm, bomb, explosive or any

other dangerous weapon, seized by a peace officer outside

the curtilage of any dwelling house in this state").

Thus, while the dissent cites the alleged "eighty

year" period during which the exclusionary rule that it

favors existed in unadulterated form in Michigan, post at

15, in truth the "heyday" of the exclusionary rule that the

dissent recalls did not exist for at least a quarter-

century preceding Mapp—because Michigan had substantially

limited the scope of the rule in precisely those areas of

criminal law in which it tends to be most regularly

invoked—and it did not exist for many years afterward

because the United States Supreme Court quickly made clear

that the exclusionary rule was merely a judicially created,

"prophylactic" remedy rather than a rule of absolute and

invariable constitutional dimension.11

11
See Calandra, supra at 348. It has consistently
been the constitutional law of Michigan that the “search
and seizure provision of the Michigan Constitution, Const
1963, art 1, § 11, affords defendant no greater rights upon
which to support the suppression than the Fourth
Amendment.” People v Chapman, 425 Mich 245, 252-253; 387
NW2d 835 (1986). “[A]rt 1, § 11 is to be construed to
provide the same protection as that secured by the Fourth
(continued . . . .)

18

 The dissent purports to create a constitutional regime

in Michigan in which it is able to pick and choose from

among what it views as the "best" rules of particular eras,

and combine them to create a constitutional regime that has

existed in the real world for only brief moments. The

dissent would combine an exclusionary rule that is broad in

its coverage, failing to exclude "narcotic drugs, firearms,

bombs, explosives [and] any other dangerous weapons," with

an exclusionary rule that is narrow in its exceptions, most

importantly lacking a good-faith exception. It is

seriously misleading for the dissent to suggest that its

position is a legitimate heir to "eighty years" of

constitutional understanding in our state.

In summary, the dissent's constitution is one that

would be unrecognizable to the framers of the United States

Amendment, absent ‘compelling reason’ to impose a different
interpretation.” People v Collins, 438 Mich 8, 25; 475
NW2d 684 (1991). “[T]he historical record
clearly indicates that the people of Michigan had no
intention of imposing more stringent restrictions upon law
enforcement than is mandated by the Fourth Amendment.” Id.
at 32-33. “There is no compelling reason to interpret
Const 1963, art 1, § 11 as affording greater protection for
this defendant than is provided under the Fourth
Amendment.” Id. at 40. It is the dissent, not the
majority, that is "ignor[ing] Michigan's history," post at
1, in failing to consider this statement of the traditional
relationship between the Fourth Amendment of the United
States Constitution and art 1, § 11 of the Michigan
Constitution.

19

Constitution or the Michigan Constitution, as well as to

generations of justices of both the United States Supreme

Court and the Michigan Supreme Court. The dissent's

constitution is one that ill-serves the interests of a

responsible criminal justice system.12 Given its lack of

deterrent effect, the only consequence of the dissent's

absolute exclusionary rule would be to raise an

extraordinarily costly obstacle in the way of effective law

enforcement.

Stephen J. Markman

12
Contrary to the dissent's intimations, the majority
is not unconcerned about even good-faith imperfections in
the investigative process. However, the issue before this
Court is only whether suppression of the evidence is an
appropriate remedy for a good-faith violation. There are
far more appropriate and finely tuned remedies for
violations of this kind, such as civil damages or tort
claim remedies against the government. One of the virtues
of enacting such alternative remedies is that they would
compensate not only persons with respect to whom evidence
of a crime has been discovered, but also those with respect
to whom no such evidence has been discovered but who have
nonetheless been the victims of Fourth Amendment
violations. By contrast, the exclusionary rule accords
benefit only to those with respect to whom evidence of a
crime has been discovered.

20

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

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 122364

GLENN GOLDSTON,

Defendant-Appellee.

_______________________________

CAVANAGH, J. (dissenting).

“[T]he task of combating crime and convicting the

guilty will in every era seem of such critical and pressing

concern that we may be lured by the temptations of

expediency into forsaking our commitment to protecting

individual liberty and privacy.” United States v Leon, 468

US 897, 929-930; 104 S Ct 3405; 82 L Ed 2d 677 (1984)

(Brennan, J., dissenting). Today, the majority has chosen

to ignore Michigan’s history of protecting our citizens

against unreasonable searches. As a result, in choosing to

adopt the good-faith exception to the exclusionary rule,

the majority has forsaken its commitment to our citizens

and failed to resist the lure of expediency. Therefore, I

must respectfully dissent.

The majority claims that there is no compelling reason

for Michigan to provide greater protection against
unreasonable searches than that provided by the federal

constitution.1 I disagree with the majority that Michigan

must have a compelling reason to provide greater protection

to our citizens than that provided by the federal

constitution. Instead, I believe this Court should be

required to show a compelling reason to depart from past

precedent. See People v Collins, 438 Mich 8, 50; 475 NW2d

684 (1991) (Cavanagh, C.J., dissenting). However, even if

this Court must demonstrate a compelling reason to offer

greater protection to our citizens, Michigan’s

jurisprudential history certainly meets this test.

Over forty years before the United States Supreme

Court extended the exclusionary rule to the states in Mapp

1
“The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures shall not be violated, and 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.”
US Const, Am IV.

“The person, houses, papers and possessions of every
person shall be secure from unreasonable searches and
seizures. No warrant to search any place or to seize any
person or things shall issue without describing them, nor
without probable cause, supported by oath or affirmation.
The provisions of this section shall not be construed to
bar from evidence in any criminal proceeding any narcotic
drug, firearm, bomb, explosive or any other dangerous
weapon, seized by a peace officer outside the curtilage of
any dwelling house in this state.” Const 1963, art 1,
§ 11.

2

v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961),

Michigan adopted the exclusionary rule in People v

Marxhausen, 204 Mich 559, 573-574; 171 NW 557 (1919).

“[T]his Court created a body of state constitutional search

and seizure law and adopted an exclusionary rule, all

before either was subject to a federal floor.” People v

Nash, 418 Mich 196, 214; 341 NW2d 439 (1983) (opinion of

Brickley, J.). In Marxhausen, supra at 563, this Court

wisely stated that it is “the essence of a free government

that the individual shall be secure in his person, his home

and his property from unlawful invasion, from unlawful

search, from unlawful seizure.”

This Court further articulated the importance of the

exclusionary rule in People v Halveksz, 215 Mich 136, 138;

183 NW 752 (1921).

Under a government of laws the security
afforded persons, houses and possessions against
search without a warrant, lawfully obtained, must
not be violated by officers of the law. The law
must point the way to legitimate search and
seizure and will tolerate none other. Officers
of the law must act within the law and if they
invade the security guaranteed individuals by the
Constitution, such invasion cannot bring to the
aid of justice the fruit of their violation. It
is the duty of courts, when attention is
seasonably called to a violation of a
constitutional right, in obtaining evidence in
criminal prosecutions, to vindicate the
protection afforded individuals by the
Constitution, and to suppress such evidence.
[Id.]

3

 The compelling reason test “should not be understood

as establishing a conclusive presumption artificially

linking state constitutional interpretation to federal

law.” Sitz v Dep’t of State Police, 443 Mich 744, 758; 506

NW2d 209 (1993). The majority’s application of the

compelling reason test disregards this, however, and

ignores the jurisprudential history of the exclusionary

rule in this Court. Those who have come before us have

dedicated themselves to upholding Michigan’s Constitution

and providing reasoned analysis. Not only did this Court

adopt the exclusionary rule before being required to do so,

it also declined to recognize a good-faith exception to the

exclusionary rule in People v Bloyd, 416 Mich 538, 556; 331

NW2d 447 (1982). Our state is not obligated to discard

decades of sound analysis and reasoned jurisprudence merely

because the United State Supreme Court has announced a

decision limiting citizens’ federal constitutional rights

contrary to Michigan jurisprudence.2 This Court is “not

2
Other jurisdictions have also rejected the good-faith
exception on state constitutional or statutory grounds.
See, e.g., State v Lacasella, 313 Mont 185, 194; 60 P3d 975
(2002); Dorsey v State, 761 A2d 807, 817, 820 (Del, 2000)
(“Without a constitutional remedy, a Delaware
‘constitutional right’ is an oxymoron that could unravel
the entire fabric of protections in Delaware’s two hundred
and twenty-five year old Declaration of Rights.”); Harvey v
State, 266 Ga 671, 672; 469 SE2d 176 (1996); State v
(continued . . . .)

4

obligated to accept what we deem to be a major contraction

of citizen protections under our constitution simply

because the United States Supreme Court has chosen to do

so.” Sitz, supra at 763. Our state is free to provide

more protections to its citizens than the United States

Constitution does. This Court’s adoption of the

exclusionary rule decades before being required to do so,

and its subsequent decision not to adopt a good-faith

exception, is more than sufficient to qualify as a

compelling reason.

Canelo, 139 NH 376, 382-383; 653 A2d 1097 (1995); State v
Gutierrez, 116 NM 431, 446-447; 863 P2d 1052 (1993)
(“Denying the government the fruits of unconstitutional
conduct at trial best effectuates the constitutional
proscription of unreasonable searches and seizures by
preserving the rights of the accused to the same extent as
if the government’s officers had stayed within the law.”);
State v Guzman, 122 Idaho 981, 989, 998; 842 P2d 660
(1992); Commonwealth v Edmunds, 526 Pa 374, 397-398, 402;
586 A2d 887 (1991); State v Oakes, 157 Vt 171, 173; 598 A2d
119 (1991); State v Marsala, 216 Conn 150, 151; 579 A2d 58
(1990); State v Carter, 322 NC 709, 710, 719-720; 370 SE2d
553 (1988) (The exclusionary rule is necessary “for the
sake of maintaining the integrity of the judicial branch of
government.”); State v Novembrino, 105 NJ 95, 153, 156-159;
519 A2d 820 (1987) (“By eliminating any cost for
noncompliance with the constitutional requirement of
probable cause, the good-faith exception assures us that
the constitutional standard will be diluted.”); State v
McKnight, 291 SC 110, 114; 352 SE2d 471 (1987);
Commonwealth v Upton, 394 Mass 363, 365-366; 476 NE2d 548
(1985); People v Bigelow, 66 NY2d 417, 422-423; 488 NE2d
451 (1985).

5

 Notably, those who framed and adopted the Constitution

were concerned about expanding the protection under

Michigan’s search and seizure provision beyond that of the

federal constitution as it was interpreted in 1963.

Collins, supra at 475; see also Nash, supra at 214. In

1963, the United States Supreme Court had adopted the

exclusionary rule, but had not yet adopted the good-faith

exception. Therefore, the 1963 ratification of our

Constitution cannot support the notion that our citizens

sought to have Michigan’s Constitution adopt the good-faith

exception as contained in the federal constitution, when it

would be over twenty years before this exception was indeed

recognized under the federal constitution. “[W]e may not

disregard the guarantees that our constitution confers on

Michigan citizens merely because the United States Supreme

Court has withdrawn . . . such protection.” Sitz, supra at

759. Unless the ratifiers were prescient, they could not

know how the United State Supreme Court might interpret the

federal constitution in future years. Therefore, it is

illogical to claim that the 1963 ratification essentially

foreclosed an interpretation of our Constitution that

differs from that of the federal constitution.

Remarkably, the majority claims that the only purpose

of the exclusionary rule is to deter police misconduct.

6

That claim is incomplete and ignores the other well-

documented purpose of the exclusionary rule. The United

States Supreme Court has stated that the purposes of the

exclusionary rule are to protect a person’s Fourth

Amendment guarantees by deterring lawless conduct by police

officers and to close the courthouse doors “to any use of

evidence unconstitutionally obtained.” Wong Sun v United

States, 371 US 471, 486; 83 S Ct 407; 9 L Ed 2d 441 (1963);

see also Brown v Illinois, 422 US 590, 599; 95 S Ct 2254;

45 L Ed 2d 416 (1975); Terry v Ohio, 392 US 1, 12-13; 88 S

Ct 1868; 20 L Ed 2d 889 (1968) (The exclusionary rule

serves to deter police misconduct and preserve judicial

integrity.); Elkins v United States, 364 US 206, 222; 80 S

Ct 1437; 4 L Ed 2d 1669 (1960).3

3
While the United States Supreme Court, after its Leon
decision, has primarily focused on the deterrence of police
misconduct in justifying the good-faith exception, it has
not failed to recognize that other purposes still exist.
In Illinois v Krull, 480 US 340, 347; 107 S Ct 1160; 94 L
Ed 2d 364 (1987), the Court refers to police deterrence as
the “‘prime purpose’ of the exclusionary rule,” but it does
not state that it is the sole purpose. (Citation omitted.)
While discussing the deterrent effects of the exclusionary
rule in James v Illinois, 493 US 307, 314; 110 S Ct 648;
107 L Ed 2d 676 (1990), the Court refers to the purposes of
the exclusionary rule. See also Colorado v Connelly, 479
US 157, 169; 107 S Ct 515; 93 L Ed 2d 473 (1986) (the
exclusionary rule is aimed at deterring lawless conduct by
the police and the prosecutor).

(continued . . . .)

7

 “Courts which sit under our Constitution cannot and

will not be made party to lawless invasions of the

constitutional rights of citizens by permitting unhindered

governmental use of the fruits of such invasions.” Terry,

supra at 13. The exclusionary rule “is directed at all

unlawful searches and seizures, and not merely those that

happen to produce incriminating material or testimony as

fruits.” Brown, supra at 601 (emphasis added). In Mapp,

supra at 648, the United States Supreme Court quoted Weeks

v United States, 232 US 383, 393; 34 S Ct 341; 58 L Ed 652

(1914), as follows:

“If letters and private documents can thus
be seized and held and used in evidence against a
citizen accused of an offense, the protection of
the Fourth Amendment declaring his right to be
secure against such searches and seizures is of
no value, and, so far as those thus placed are
concerned, might as well be stricken from the
Constitution. The efforts of the courts and
their officials to bring the guilty to
punishment, praiseworthy as they are, are not to
be aided by the sacrifice of those great

Even if one were to assume that the United States
Supreme Court has abandoned the concerns it expressed in
Mapp, supra at 659, about ensuring and maintaining judicial
integrity, I cannot agree that those concerns should be
abandoned. As stated in Mapp, supra at 659, “Nothing can
destroy a government more quickly than its failure to
observe its own laws, or worse, its disregard of the
charter of its own existence.” And as Justice Stevens
stated in his dissent in Arizona v Evans, 514 US 1, 18; 115
S Ct 1185; 131 L Ed 2d 34 (1995), “The [Fourth] Amendment
is a constraint on the power of the sovereign, not merely
on some of its agents.”

8

 principles established by years of endeavor and
suffering which have resulted in their embodiment
in the fundamental law of the land.”

As Justice Scalia also recently wrote in Crawford v

Washington, 541 US ___; 124 S Ct 1354, 1373; 158 L Ed 2d

177 (2004), the framers of the United States Constitution

“knew that judges, like other government officers, could

not always be trusted to safeguard the rights of the

people . . . .”4

Without the exclusionary rule, the assurance against

unreasonable searches and seizures would be “valueless and

undeserving of mention in a perpetual charter of

inestimable human liberties . . . .” Mapp, supra at 655.

The Constitution exists to protect us all. Hundreds of

years ago, our founders had the wisdom to recognize that

our government must be held to the highest standards.5 It

4
While Crawford dealt with the Confrontation Clause,
Justice Scalia’s words are most fitting in this case as
well.
5
In 1761, James Otis argued against the general writs
of assistance that allowed the British government to search
homes at any time of the day or night. Otis argued that
only special warrants, in which the complainant swore that
he suspected goods were located in a specific place, were
valid. The concern with writs of assistance is that “[a]
man is accountable to no person for his doings.” James
Otis, oral argument, Superior Court of Massachusetts,
February 24, 1761, (accessed February 27, 2004). Unfortunately, almost
(continued . . . .)

9

must be accountable to the people, for without the people,

government has no reason to exist.

In today’s decision, the majority treats our

Constitution as an impediment that courts must maneuver

around for the justice system to work. This is evident in

its zeal to adopt the good-faith exception in this case

when the search warrant at issue does not come close to

meeting the standards articulated in Leon. “Probable cause

to issue a search warrant exists where there is a

‘substantial basis’ for inferring a ‘fair probability’ that

contraband or evidence of a crime will be found in a

particular place.”6 People v Kazmierczak, 461 Mich 411,

417-418; 605 NW2d 667 (2000). Leon, supra at 914-915, 926,

held that the good-faith exception does not apply if the

magistrate abandoned his detached and neutral role, the

police officers were dishonest or reckless, or the police

officers could not have had an objectively reasonable

belief that probable cause existed.

This is not a case where there was a mere

typographical error that was not discovered until after the

250 years later, this same issue, albeit it in a slightly
different form, plagues us yet again.
6
The majority, of course, to even get to Leon,
concedes the finding of lack of probable cause.

10

warrant was carried out. See, e.g., Arizona v Evans, 514

US 1, 15-16; 115 S Ct 1185; 131 L Ed 2d 34 (1995) (a police

officer acted on incorrect computer data entered by a court

clerk). And this is certainly not a case where there was a

close call about the sufficiency of an affidavit. See,

e.g., Leon, supra at 904. We concur in the findings of the

trial court, which stated:

In order for the warrant to be sustained the
observations were made of a recent nature.
Examination of the affidavit in support of a
warrant, a search warrant, dues [sic, does]
nothing to enlighten anyone. It obtains no
reference as to when these contacts between
Officer Born and the defendant were had, was not
able to tell how close in time the contacts were
with respect to defendant’s alleged activities
posing as a firefighter, how close the time those
activities were to the date of the affidavit for
the warrant.

Also looking at the affidavit, I don’t find
anything in the affidavit connecting the location
of the dwelling, 29440 Hazelwood, Inkster,
Michigan, to this defendant for any information
stating why there is a request to search this
location.

It doesn’t have to be the defendant’s
residence but there has to be, in this Court’s
judgment, something connecting the defendant to
the location that was searched.

Whether it was somewhere he worked, whether
it was somewhere he was seen going in and out of.
Whether it was somewhere he lived, or someone saw
him going into after the incident, was it his
girlfriend or him being associated in some manner
with that location.

11

 And on the face of the affidavit I don’t
find anything connecting the defendant to that
location that was searched.

So therefore based on those findings by the
Court, I’m going to grant the motion. I don’t
think that the affidavit sufficiently established
the probable cause necessary so that the
magistrate could properly have issued the
warrant. So the motion is granted.

This is a case in which the affidavit offered

absolutely no information linking defendant to the address

on the warrant. It was not objectively reasonable for the

police officers to have relied on a warrant that did not

provide any information connecting defendant with the place

to be searched. The majority pointedly states that the

information provided was not false or misleading. And I

agree, but that is only because it is impossible for one to

find nonexistent information false or misleading.7

7
Remarkably, the majority refers to violating our
Constitution’s probable cause requirement, and therefore
our citizens’ constitutional rights, as a “technical
defect.” Ante at 21 n 9. I disagree. In this case,
conducting a search based on a warrant that does not
establish any connection between the place to be searched
and a defendant is not merely a technical violation. As
the United States Supreme Court recently held, when a
warrant does not describe the items to be seized at all,
the warrant was so obviously deficient that the search is
regarded as warrantless. Groh v Ramirez, 540 US ___; 124 S
Ct 1284, 1290; 157 L Ed 2d 1068 (2004). It was
unreasonable for a law enforcement officer to rely on a
warrant “so patently defective.” Id. at 1292. “[E]ven a
cursory reading of the warrant in this case—perhaps just a
simple glance—would have revealed a glaring deficiency that
(continued . . . .)

12

 The good-faith exception is premised on the belief

that the law enforcement officer was “‘acting as a

reasonable officer would and should act in similar

circumstances.’” Leon, supra at 920, quoting Stone v

Powell, 428 US 465, 539-540; 96 S Ct 3037; 49 L Ed 2d 1067

(1976)(White, J., dissenting). Leon even states, “We

emphasize that the standard of reasonableness we adopt is

an objective one. . . . The objective standard we adopt,

moreover, requires officers to have a reasonable knowledge

of what the law prohibits.” Id. at 920 n 20.

Unlike the majority, I give our trained law

enforcement officers more credit, and I believe law

enforcement officers know that when submitting an affidavit

in support of the issuance of a search warrant they must

include why they believe the area should be searched.

Because of the lack of any information linking defendant to

any reasonable police officer would have known was
constitutionally fatal.” Id. at 1294. Likewise, an
affidavit that provides no information linking a defendant
to the address to be searched, like the affidavit in this
case, is also a glaring deficiency that would be evident to
any reasonable law enforcement officer. While Groh dealt
with qualified immunity, the Court used the same standard
of objective reasonableness articulated in Leon.

13

the place to be searched, even under the Leon good-faith

exception, this warrant is insufficient.8

Further, the magistrate in this case did not review

the affidavit for issuance of a search warrant with neutral

and detached scrutiny. Id. at 913-914. The magistrate

authorized a search warrant that provided no information

linking the address with defendant. A neutral and detached

magistrate would have directed the police officers to

provide information linking the address to be searched with

defendant. There is simply no fact indicating a connection

between the address and defendant. There is no other term

for the magistrate’s approval in this case other than to

describe it as being a “rubber stamp for the police.” Id.

at 914.

The majority also argues “that the high cost of the

exclusionary rule exacts too great a toll on our justice

system.” Ante at 21 n 9. The exclusionary rule, grounded

in our Constitution, has been the rule of law in Michigan

for over eighty years. While it may be obvious, I note

that our state has managed to exist for decades with the

8
See, e.g., Figert v State, 686 NE2d 827, 832 (Ind,
1997) (the good-faith exception does not apply when the
affidavit does not sufficiently link the home to be
searched to criminal activity).

14

exclusionary rule and our streets have yet to become

teeming with criminals released on “technicalities.”

Finally, I am somewhat heartened by the fact that the

ever-sensitive concurrence has seen fit to attack my

dissent with a lengthy diatribe championing law and order.

I also applaud the concurrence’s ability to vigorously

criticize the dissent for its “overwrought language” and

“hyperbolic rhetoric,” yet still manage to hysterically

argue that the dissent’s approach leaves criminal

defendants “on the streets to continue to prey upon their

communities . . . .” Ante at 1, 7. While I am unclear how

an allegedly increased crime rate is relevant in

determining our citizens’ constitutional rights, it is

quite a marvel to watch the concurrence criticize the

dissent for attempting to protect our citizens’

constitutional liberties.9 At its core, the concurrence

9
Notably, crime rates have actually been going down.
See, e.g., and (accessed February 27, 2004). If crime rates are to
be considered in constitutional interpretation, as the
concurrence indicates, then the falling rates should give
the concurrence pause. Perhaps the concurrence will change
its notion if the rates continue to fall. Or, if the rates
unfortunately increase, the concurrence may argue for a
greater contraction of constitutional liberties. Either
way, the concurrence’s idiosyncratic method of
constitutional interpretation is certainly unique.
(continued . . . .)

15

clearly indicates the fundamental difference between my

view of our citizens’ constitutional liberties and the

majority and concurrence’s views. I believe that the

Constitution exists to protect all citizens, and the Bill

of Rights, the first ten amendments, to protect all

citizens from unlawful acts by the government. I do not

believe that requiring the government to follow the law,

while attempting to catch those who are allegedly breaking

it, is a radical notion so easily dismissed. If, as the

concurrence advocates, “[e]vidence is the lifeblood of the

criminal justice process,” ante at 4, then I believe that

the Constitution is the lifeblood of our democracy, and I

do not agree with attempts to violate it.

The concurrence argues that the exclusionary rule has

no effect in deterring even a single improper search. It

The concurrence’s distinctive ideas about
constitutional interpretation also extend to its recitation
of numerous federal cases dealing with the exclusionary
rule in various settings, such as deportation proceedings.
In citing the “balancing test” from United States v Janis,
428 US 433, 454; 96 S Ct 3021; 49 L Ed 2d 1046 (1976), the
concurrence apparently believes that the more law
enforcement officers disregard the exclusionary rule, the
less effective it is. Therefore, the lack of a deterrent
effect justifies the violation of citizens’ constitutional
rights. This very notion—that the government’s disregard
of constitutional rights justifies the government’s
continued and increased disregard of constitutional rights—
appears contrary to logic and, of course, our nation’s
history.

16

is disingenuous to argue that the actions of law

enforcement officers will not be influenced by the

knowledge that even “mistakes” that violate a citizen’s

constitutional rights are still admissible in a court of

law. The facts of this case indicate that the majority and

concurrence are willing to classify almost any conduct as a

“mistake.” The concurrence even goes so far as to rename

these constitutional violations “good-faith imperfections.”

Ante at 19 n 7.10 It is hard to take the arguments of the

majority and concurrence seriously when they argue, as they

do in this case, that a reasonable law enforcement officer

would make the “mistake” of submitting an affidavit in

support of a search warrant that provides no link between

the defendant and the place to be searched.

The majority and concurrence also argue that excluding

evidence seized in violation of our Constitution hinders

public confidence. I have much more faith in the people of

our state. I believe that public confidence is shattered

by a government that does not respect the constitutional

10
The concurrence also argues that people whose
constitutional rights have been violated could pursue a
civil damages lawsuit. However, governmental immunity will
preclude the vast majority of these lawsuits and,
therefore, it is not a realistic remedy. See, e.g., MCL
691.1401 et seq.

17

rights of its citizens. I believe the citizens of our

state understand that the Constitution protects us all and

that they do not have to make a choice between

constitutional liberties and justice. I believe our

citizens expect the government to follow the law, just as

they are required to do. No matter how “indispensable”

evidence may be, law enforcement officers are not given a

free pass merely because they are cloaked with governmental

authority. The concurrence indicates its belief that our

citizens’ constitutional liberties should be discarded

because it will make us “safer.” What a peculiar notion.

Contrary to the concurrence, I agree with the following

values, stated so eloquently by Justice Brandeis in his

dissenting opinion in Olmstead v United States, 277 US 438,

485; 48 S Ct 564; 72 L Ed 944 (1928):

Decency, security and liberty alike demand
that government officials shall be subjected to
the same rules of conduct that are commands to
the citizen. In a government of laws, existence
of the government will be imperilled if it fails
to observe the law scrupulously. Our Government
is the potent, the omnipresent teacher. For good
or for ill, it teaches the whole people by its
example. Crime is contagious. If the Government
becomes a lawbreaker, it breeds contempt for law;
it invites every man to become a law unto
himself; it invites anarchy. To declare that in
the administration of the criminal law the end
justifies the means—to declare that the
Government may commit crimes in order to secure
the conviction of a private criminal—would bring
terrible retribution. Against that pernicious

18

 doctrine this Court should resolutely set its
face.

In the future, I am confident that history will show

that the tactics used by the concurrence are flawed ones.

Our citizens’ concerns about safety should not be exploited

because the concurrence believes that it has some divine

notion about the Constitution’s meaning. If the

Constitution truly means what the concurrence argues, then

crime rates and public confidence have nothing to do with

the analysis. The concurrence claims that the “the

dissent’s constitution is one that would be unrecognizable

to the framers of the United States Constitution or the

Michigan Constitution, as well as to generations of

justices . . . .” Ante at 19-20. I believe what would be

unrecognizable to the framers and past generations of

justices would be the majority and concurrence’s insistence

on discarding the rights of our citizens for their new

version of a law and order society that these justices have

decided is best for the people. Our decisions are our

legacy. History will be our judge, and I welcome its

review.

When our government violates our citizens’

constitutional rights, it should find no refuge in our

courts. Today, the majority disregards decades of reasoned

19

and sound jurisprudence by this Court protecting our

citizens against unreasonable searches. Therefore, I

respectfully dissent.

Michael F. Cavanagh
Marilyn Kelly

20