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
People v. Goldston
Court: Michigan Supreme Court
Date filed: 2004-07-15
Citations: 682 N.W.2d 479, 470 Mich. 523
Copy CitationsCombined Opinion