Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan
O pinion
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED MAY 1, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 115890
MICHELLE ANN SOBCZAK-OBETTS,
Defendant-Appellee.
___________________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
We granted leave in this case to consider whether
firearms found in defendant’s home, upon execution by federal
and state police officers of a federal search warrant, were
properly excluded from evidence in a state prosecution. The
firearms were suppressed on the ground that a copy of the
affidavit in support of the search warrant was not provided,
as required by statute, to defendant at the time the warrant
was executed. Because we are unable to conclude that the
Legislature intended the exclusionary rule to apply to the
procedural violation of Michigan’s statutory warrant
requirements at issue in this case, we reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant and her husband, Timothy Obetts, were co-owners
of Pro Temp One Incorporated,1 a Michigan corporation that
provided skilled and semiskilled health care workers to
hospitals, nursing homes, and private homes. In May 1997, the
Michigan Accident Fund, Pro Temp One’s worker’s compensation
carrier, received a call on its fraud hotline indicating that
defendant, Obetts, and Pro Temp One had misrepresented
worker’s compensation employee classifications to the fund.
After gathering information from associates and former
employees of Pro Temp One, a fraud investigator from the fund
contacted Michigan State Police Sergeant Jack Vanderwal, who
initiated a criminal investigation. Vanderwal contacted the
Federal Bureau of Investigation after determining that
defendant and Obetts may have obtained bank loans by use of
fraud in addition to defrauding the fund of worker’s
compensation premiums.
Special Agent David Smith of the FBI interviewed two
former employees of Pro Temp One and a personal friend of
defendant.2 On the basis of the information provided by these
1
Pro Temp One also conducted business as First Agency
Professionals Incorporated and Agency Professionals
Incorporated.
2
It appears from the record that the two former employees
had been fired by defendant, and that at least one of them was
(continued...)
2
three sources, Smith sought a federal search warrant to search
the private residence of defendant and Obetts. Smith’s
affidavit in support of the search warrant referred to the
three sources as “Source One,” “Source Two,” and “Source
Three.” On October 30, 1997, a federal magistrate issued the
requested search warrant.3 The magistrate ordered that the
affidavit in support of the warrant be sealed, apparently to
protect the sources.
On October 31, 1997, the federal search warrant was
executed at the residence of defendant and Obetts by one or
more FBI agents and one or more Michigan State Police
officers. While searching the basement of the home, two of
the FBI agents came upon a locked safe. The agents asked
defendant about the contents of the safe, and she replied that
it contained weapons. Defendant then unlocked the safe, and
the agents seized two handguns from it. In accordance with
federal procedure, when the search was completed, defendant
was given a copy of the search warrant and a tabulation of the
items seized. Notably, defendant was not provided with a copy
of the sealed affidavit. Defendant was subsequently charged
by the Kent County Prosecutor with possession of a firearm by
2
(...continued)
involved in litigation with defendant.
3
The magistrate also issued a warrant to search the
business premises of Pro Temp One. This warrant was executed
simultaneously with the warrant to search the private
residence.
3
a person convicted of a felony. MCL 750.224f; MSA 28.421(6).4
At defendant’s preliminary examination, defense counsel
requested a copy of the affidavit in support of the search
warrant. The assistant prosecutor indicated that the federal
magistrate would be petitioned to unseal the affidavit for
purposes of the state proceedings. The district court judge
presiding over the preliminary examination stated that he
would bind defendant over for trial after defendant received
a copy of the affidavit. Within two weeks following the
preliminary examination, the affidavit was unsealed and
provided to defendant, and she was bound over for trial.
Defendant moved to exclude the firearms from evidence on
various grounds, including that the police did not comply with
Michigan statutory requirements regarding warrant execution.
Following two hearings on the motion to suppress, the trial
court held that the motion had to be granted on the ground
that defendant was not provided with a copy of the affidavit
in support of the search warrant at the time of the search in
contravention of MCL 780.654; MSA 28.1259(4). The trial court
noted that the issuance and execution of the search warrant
were “perfectly legitimate” under federal law. However, the
court held that precedent from this Court required that
evidence seized in the absence of full compliance with
Michigan’s statutory warrant provisions be suppressed in a
state prosecution. Accordingly, the trial court entered an
4
Defendant was not charged with any federal offense or
with worker’s compensation fraud as a result of the search.
4
order suppressing the firearms and dismissing the case.
A divided panel of the Court of Appeals affirmed. 238
Mich App 495, 496-504; 606 NW2d 658 (1999). In the lead
opinion, Judge Hoekstra noted first that, pursuant to People
v Paladino, 204 Mich App 505, 507-508; 516 NW2d 113 (1994), in
a joint operation between the state and federal governments,
state law governs the validity of a search warrant in state
court proceedings. Judge Hoekstra next opined that, although
two panels of the Court of Appeals had recently held that a
failure by law enforcement officers to comply with the
statutory requirement to attach a copy of the affidavit to the
copy of the warrant provided to the defendant does not require
suppression of evidence seized pursuant to the warrant,5 those
decisions conflicted with this Court’s holding in People v
Moten, 233 Mich 169; 206 NW 506 (1925).6 Judge Hoekstra
concluded that, because Moten had not been overturned, the
Court of Appeals was constrained to hold that, where a warrant
relies on an attached affidavit for its statement of probable
cause and that affidavit is not attached to the warrant as
statutorily required, the evidence seized pursuant to the
warrant is inadmissible. However, Judge Hoekstra indicated
5
People v Garvin, 235 Mich App 90, 99; 597 NW2d 194
(1999); People v Pipok (After Remand), 191 Mich App 669, 673;
479 NW2d 359 (1991).
6
In Moten, this Court held that, where the face of the
search warrant did not recite all the material facts alleged
in the supporting affidavit as required by the then-applicable
search warrant statute, the warrant was invalid, and the
evidence seized pursuant thereto must be suppressed. Id. at
174.
5
his disagreement with the Moten holding:
While this particular statutory provision
generally relates to a constitutional right, the
specific portion of the statute requiring a
recitation of the basis for probable cause or the
attachment of the affidavit only barely relates to
the substantive right the Legislature is seeking to
protect. The requirement is more of a ministerial
duty than a right. Consequently, were I able, I
would hold that defendant must show some prejudice
before the trial court suppresses the evidence
seized using a statutorily defective warrant. In
this case, for example, defendant was eventually
afforded a chance to contest the basis for the
warrant. I am unable to see how defendant was put
at a disadvantage by being forced to delay her
arguments until the parties obtained a copy of the
federal affidavit. I think it is especially
important that defendant be forced to show some
level of prejudice given that the warrant met all
the requirements of the federal warrant statute.
Here, I find it necessary to exclude the evidence
in question because the state warrant requirements
differ from federal warrant requirements. Neither
party has argued that the federal warrant
requirements are unconstitutional, so it seems that
I am forced to declare a search invalid because the
ministerial duties associated with executing a
federal warrant differ from those associated with
executing a state warrant, a result I hope our
Supreme Court will find equally unsettling. [238
Mich App 503-504.]
Judge Cavanagh concurred only in the result. 238 Mich App
504.
Judge Gage dissented, opining that the Court of Appeals
decisions in People v Garvin, 235 Mich App 90; 597 NW2d 194
(1999), and People v Pipok (After Remand), 191 Mich App 669;
479 NW2d 359 (1991), controlled this case, and that this case
was distinguishable from Moten. While the statute in effect
at the time Moten was decided required that the search warrant
itself contain a recitation of the affidavit’s statement of
probable cause, Judge Gage noted, the current statute allows
6
instead the attachment of the affidavit to the search warrant.
In light of this statutory amendment, Judge Gage stated she
would hold that Moten was not controlling, and that
suppression of the firearms in this case was not required
because defendant had failed to demonstrate that she was
prejudiced as a result of the “technical, nonconstitutional”
statutory violation. 238 Mich App 504-508.
We granted the prosecution’s application for leave to
appeal,7 and we now reverse.
II. STANDARD OF REVIEW
This Court reviews a trial court's ruling regarding a
motion to suppress for clear error. People v Stevens (After
Remand), 460 Mich 626, 631; 597 NW2d 53 (2000); People v
Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). However,
questions of law relevant to the suppression issue are
reviewed de novo. Stevens, supra at 631; see also People v
Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998).
Where violation of a state statute is involved,
“‘[w]hether suppression is appropriate is a question of
statutory interpretation and thus one of legislative intent.’”
Stevens, supra at 644, quoting People v Wood, 450 Mich 399,
408; 538 NW2d 351 (1995) (BOYLE , J., concurring). “‘Because
our judicial role precludes imposing different policy choices
than those selected by the Legislature, our obligation is, by
examining the statutory language, to discern the legislative
7
462 Mich 912 (2000).
7
intent that may reasonably be inferred from the words
expressed in the statute.’” People v McIntire, 461 Mich 147,
152; 599 NW2d 102 (1999), quoting 232 Mich App 119 (YOUNG ,
P.J., concurring in part and dissenting in part). “‘When a
statute is clear and unambiguous, judicial construction or
interpretation is unnecessary and therefore, precluded.’”
Stevens, supra at 644, quoting Lorencz v Ford Motor Co, 439
Mich 370, 376; 483 NW2d 844 (1992).
III. ANALYSIS
A. STATUTORY WARRANT REQUIREMENTS
In support of her motion to suppress the weapons,
defendant contended that MCL 780.655; MSA 28.1259(5)–by
reference to MCL 780.654; MSA 28.1259(4)–required the officers
executing the federal search warrant to provide her with a
copy of the affidavit in support of the warrant. Because the
officers provided only the warrant itself and not the
affidavit, defendant argued that the search was defective and
the handguns had to be suppressed. The trial court agreed.
MCL 780.654; MSA 28.1259(4) provides as follows:
A search warrant shall be directed to the
sheriff or any peace officer, commanding such
officer to search the house, building or other
location or place, where any property or other
thing for which he is required to search is
believed to be concealed. Each warrant shall
designate and describe the house or building or
other location or place to be searched and the
property or thing to be seized. The warrant shall
also state the grounds or the probable or
8
reasonable cause for its issuance, or in lieu
thereof, a copy of the affidavit may be attached
thereto. [Emphasis supplied.]
The requirement that the warrant be left at the scene or
otherwise given to the premises owner is found in MCL 780.655;
MSA 28.1259(5), which provides as follows in pertinent part:
When an officer in the execution of a search
warrant finds any property or seizes any of the
other things for which a search warrant is allowed
by this act, the officer, in the presence of the
person from whose possession or premises the
property or thing was taken, if present, or in the
presence of at least 1 other person, shall make a
complete and accurate tabulation of the property
and things so seized. The officer taking property
or other things under the warrant shall forthwith
give to the person from whom or from whose premises
the property was taken a copy of the warrant and
shall give to the person a copy of the tabulation
upon completion, or shall leave a copy of the
warrant and tabulation at the place from which the
property or thing was taken. [Emphasis supplied.][8]
B. APPLICATION OF THE EXCLUSIONARY RULE
1. INTRODUCTION
8
We note that § 5 does not explicitly require that the
affidavit in support of the search warrant, if attached to the
warrant pursuant to § 4, be provided to the premises owner at
the time of the seizure. However, the prosecution concedes
that § 5 was violated by the officers’ failure to provide
defendant with a copy of the search warrant affidavit at the
time the handguns were seized. This is consistent with the
holdings of the Court of Appeals in People v Chapin, 244 Mich
App 196; ___ NW2d ___ (2000), and Garvin, supra (where the
affidavit is attached to the warrant pursuant to § 4, the
affidavit becomes part of the “warrant” that must be provided
or left at the premises pursuant to § 5); but see Chapin,
supra at 208 (HOOD , J., dissenting) (the plain language of §
5 requires only that the search warrant itself be provided or
left at the premises). We agree with Chapin and Garvin and
hold that, where an affidavit is attached to the warrant as
permitted by § 4 in lieu of a statement of probable cause in
the warrant itself, the affidavit is part of the “warrant”
referred to in § 5.
9
The prosecution argues that, where the only defect in the
search and seizure was a technical violation of Michigan’s
statutory warrant requirements, and where there has been no
violation of defendant’s constitutional rights under the
Fourth Amendment, the exclusionary rule should not be
applied.9 Defendant–who makes no argument that her
constitutional rights were violated by the officers’
actions–contends that suppression of evidence is the proper
remedy for a statutory violation of this kind, and that
suppression is indeed required pursuant to this Court’s
holding in Moten and its progeny. Because we conclude that
Moten is distinguishable from the case at bar, and because we
do not discern any legislative intent that the exclusionary
rule be applied to a violation of MCL 780.655; MSA 28.1259(5),
we hold that suppression of the evidence in this case was not
appropriate.
2. PEOPLE V MOTEN
In a trilogy of prohibition-era cases, this Court
suppressed evidence obtained pursuant to search warrants that
were violative of the search warrant requirements set forth in
§ 27 of Michigan’s “liquor law,” 1922 CL 7079(27), which
9
There is no federal counterpart to the Michigan
statutory requirement that the search warrant state on its
face the grounds or cause for its issuance or have the
affidavit attached. MCL 780.654; MSA 28.1259(4). See 18 USC
3101 et seq.; FR Crim P 41(c). Defendant did not, and does
not now, claim any deprivation of constitutional rights with
respect to the procedure utilized by the federal magistrate in
issuing the search warrant or in sealing the affidavit, or by
the federal and state officers in executing the warrant.
10
provided in relevant part as follows:
No warrant for search shall be issued until
there has been filed with the magistrate an
affidavit describing the house or place to be
searched, the things to be searched for, and
alleging substantially the offense in relation
thereto, and that affiant believes, and has good
cause to believe that such liquor is there
concealed: Provided, however, That any description
that will enable the officer to find the house or
place to be searched shall be deemed sufficient.
The warrant for search shall be directed to the
proper officer and shall recite all of the material
facts alleged in the affidavit, and describe the
things to be searched for and the place to be
searched. A warrant for search and seizure
substantially in the following form shall be
sufficient:
“. . . Whereas there has been filed with the
undersigned an affidavit (here set out the material
facts alleged in the affidavit) . . . .” [Emphasis
supplied.]
In Moten, this Court held that § 27 of the liquor law had been
violated where the search warrant did not contain a recitation
of the facts alleged in the affidavit. As a result of this
statutory violation, the Moten Court held,
[t]he warrant is invalid, and the evidence procured
thereunder inadmissible. “With such evidence out,
defendant should have been discharged.” People v
Knopka, 220 Mich 540 [190 NW 731 (1922)].[10]
10
The search warrant at issue in Knopka was held to be
violative of both § 27 of the liquor law and the Michigan
Constitution’s probable cause requirement, Const 1908, art 2,
§ 10. Id. at 545. The Knopka Court concluded: “It not
appearing that the search warrant was issued upon the
constitutional and statutory showing of probable cause, it
must be held that the evidence procured by it was inadmissible
and should have been suppressed and that, with such evidence
out, defendant should have been discharged. See People v De
La Mater, [213 Mich 167; 182 NW 57 (1921)]; People v Mayhew,
[214 Mich 153; 182 NW 676 (1921)]; People v Halveksz, [215
Mich 136; 183 NW 752 (1921)].” Knopka, supra at 545. The
cases cited by the Knopka Court as authority for suppressing
(continued...)
11
The conviction must therefore be set aside and
defendant discharged. [Moten, supra at 174.]
In People v Bules, 234 Mich 335; 207 NW 818 (1926), the
search warrant suffered from the same deficiency as that in
Moten: It failed to recite the facts set forth in the
supporting affidavit as required by § 27 of the liquor law.
Because the statute had been violated, this Court held, “[the]
warrant was void on its face” and the evidence had to be
suppressed:
The mandate of the statute is clear, that the
material facts alleged in the affidavit for the
warrant shall be recited in the warrant, and the
legislature even took the pains to set out a form,
in which it directed the user to (“Here set out the
material facts alleged in the affidavit”). . . .
The law cannot be made plainer, and is but
expressive of long time precedent established to
prevent abuse. We deplore the carelessness
evidenced here and so inexcusable if the statute
was read, but we are bound to correct here such a
palpable blunder. The evidence seized on the so
called search warrant should have been suppressed.
[Bules, supra at 336.]
Likewise, in People v Galnt, 235 Mich 646; 209 NW 915
(1926), the search warrant failed to recite the material facts
alleged in the affidavit, contrary to § 27 of the liquor law.
Accordingly, this Court held, the warrant was “void,” and “the
search [was] unlawful, a violation of [the defendant’s]
constitutional right [Const 1908, art 2, § 10] that his house
10
(...continued)
the evidence and dismissing the case (De La Mater, Mayhew, and
Halveksz) concern searches that were held to be
constitutionally deficient. Moten appears to be the first
case of this Court requiring suppression of evidence as a
remedy for a purely statutory search warrant defect, and it
does not appear that the Court considered this distinction in
reaching its decision.
12
shall be secure from unreasonable searches and seizures.” Id.
at 648 (emphasis supplied). Thus, what had been characterized
in Moten and Bules as a purely statutory imperfection was in
Galnt characterized as being of constitutional magnitude.
3. COURT OF APPEALS CASES APPLYING MOTEN
In recent years, the Court of Appeals has addressed the
Moten-Bules-Galnt trilogy in the context of Michigan’s modern
search warrant statutes.11 In Pipok, supra, a federal search
warrant was executed by state and federal officers. The
search warrant was issued pursuant to federal law, and it did
not comply with Michigan’s requirement set forth in MCL
780.654; MSA 28.1259(4) that a search warrant provide on its
face or in an attached affidavit the grounds on which the
warrant was issued. Relying on the Moten trilogy, the
defendants contended that the noncompliance with § 4 rendered
the search warrant invalid, and that the evidence seized
pursuant to the warrant must be suppressed. The panel,
finding Moten to be distinguishable, held that the statutory
violation12 did not require suppression of the evidence:
11
We note that the warrant statute at issue in Moten,
Bules, and Galnt, § 27 of the liquor law, was not a precursor
of Michigan’s current search warrant statutes, contrary to the
assumptions of some members of the various Court of Appeals
panels that have addressed Moten’s application to the current
statutes. Rather, general search warrant statutes existed
contemporaneously with the warrant provision contained in the
liquor law. See, e.g., 1915 CL 15879-15883. 1915 CL 15881 is
a precursor of the present-day MCL 780.654; MSA 28.1259(4).
12
The Pipok panel stated, in dicta, that “when evidence
(continued...)
13
The Moten Court . . . found the recital [of
material facts alleged in the affidavit] to be an
“essential requirement” of a valid warrant and held
that evidence seized pursuant to a warrant lacking
such a recital must be suppressed.
Since the court’s decision in Moten, statutory
law in this state has changed to permit a
supporting affidavit to be attached to the warrant
in place of stating the material facts, or grounds
for issuance, on the warrant itself. Again, the
provision is designed to guarantee that a record of
probable cause is established. The Legislature has
apparently recognized that the affidavit alone is
sufficient to establish a record of probable cause
12
(...continued)
challenged in a state prosecution is obtained in a search
involving the joint activity of state and federal officers,
the search is scrutinized under state standards.” Id. at 671.
This proposition was reiterated by a different Court of
Appeals panel, again in dicta, in Paladino, supra at 507-508
(noting that “[t]his ruling was based on the need to preserve
state court integrity and to govern the conduct of state
officers”). The prosecution in the present case urges us to
abrogate the Court of Appeals “joint activity” rule and to
hold that Michigan’s statutory warrant requirements do not
apply to a federal search warrant or to its execution by
federal and state officers.
Because we hold that the statutory violation at issue in
this case does not require suppression of evidence in any
event, we need not address the propriety of the “joint
activity” rule enunciated by the Court of Appeals.
Nevertheless, we take this opportunity to note our disapproval
of the dicta in Pipok and Paladino suggesting that state
warrant requirements apply to joint federal and state
execution of state warrants. Michigan statutory provisions
governing issuance and execution of search warrants, on their
face, and as a matter of the legislative power of this state,
address only search warrants (which are judicial orders)
issued by judicial officers of Michigan. See United States
Const, art VI, cl 2 (“The Constitution, and the Laws of the
United States which shall be made in Pursuance thereof . . .
shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding”); Const
1963, art 4, § 1 (“The legislative power of the State of
Michigan is vested in a senate and a house of
representatives”) (emphasis added). The United States of
America is a sovereign entity; it does not require officers to
provide an affidavit underlying a federal warrant following
execution.
14
and that it is not necessary to transcribe the
material facts from the affidavit onto the warrant.
[Id. at 672-673.]
The Pipok panel noted that the federal magistrate’s
determination of probable cause was based on an affidavit,
that the defendants did not articulate any prejudice
resulting from the noncompliance with § 4, and that the
defendants were eventually provided with copies of the
affidavit and given the opportunity to challenge the probable
cause determination. The panel thus concluded that “the
failure of the warrant to state the grounds for issuance or
to have the supporting affidavit attached did not abrogate
the purpose of the statute and that the error was one of
procedure not requiring suppression of the evidence.” Id. at
673.
In Garvin, supra, the Court of Appeals again addressed
a defendant’s contention that Moten required suppression of
evidence, this time for a violation of MCL 780.655; MSA
28.1259(5). Officers from the Pontiac Police Department
executed a search warrant at defendant Garvin’s residence,
seizing evidence implicating Garvin in a number of crimes.
After completing the search of the house, the officers either
provided a copy of the search warrant to Garvin or left it at
his residence; however, the officers detached from the copy
of the warrant provided to Garvin the affidavit in support of
the warrant. The trial court granted Garvin’s motion to
suppress the seized evidence on the basis that § 5 had been
violated by the officers’ failure to provide Garvin with a
15
copy of the affidavit.
The Court of Appeals reversed, holding that the
officers’ failure to provide Garvin with a copy of the
affidavit did not require suppression of evidence seized
pursuant to the warrant. The panel noted that in Pipok,
supra, the Court had refused to suppress evidence on the
basis that § 4 had been violated, where there were no
allegations that the search warrant was constitutionally
defective or that the defendants had suffered any prejudice.
Likewise, the Garvin panel concluded, suppression was not
required as a remedy for a violation of § 5:
[I]t follows [from Pipok] that the failure of
the police to provide or leave a copy of the
affidavit as part of the copy of the warrant does
not provide a basis for suppression of evidence,
because Garvin ultimately has the opportunity to
challenge probable cause supporting the warrant and
because the requirement is merely procedural.
* * *
We strongly agree with the pertinent holding
by the Pipok Court. It is one thing, under certain
circumstances, to order the drastic remedy of
suppressing highly relevant evidence to enforce the
fundamental constitutional guarantees against
unreasonable searches and seizures of US Const, Am
IV and Const 1963, art 1, § 11. It is quite
another to extend the exclusionary rule to a
technical deficiency, such as failing to provide or
leave a copy of an affidavit in connection with the
exercise of a reasonable search in which the law
enforcement officers executing the search provide
a copy of the search warrant itself, thereby
providing notice that the search has been
judicially authorized. [Id. at 99-101.]
More recently, a panel of the Court of Appeals has
retreated from the holding of Garvin that suppression is not
required for a violation of § 5. In People v Chapin, 244
16
Mich App 196; ___ NW2d ___ (2000), a search warrant was
executed at the defendant’s home. Upon completion of the
search, a copy of the search warrant was left at the home.
A copy of the affidavit was available; however, it was not
left at the home, because the prosecutor had specifically
requested that the officers not leave a copy of the
affidavit. The defendant moved for suppression of marijuana
and other incriminating evidence seized, arguing that § 5 had
been violated and that suppression was required pursuant to
Moten.
The Chapin majority, after determining that the
statutory requirements of § 4 were “incorporated” within the
provisions of § 5,13 held that the violation of § 5 required
suppression of the seized evidence. The majority opined
that, although § 4 had been “amend[ed]” since the time Moten
was decided,14
[u]nder both versions of the statute, the
requirement exists that the warrant, whether in the
body of the warrant itself or by affidavit attached
13
The defendant in Chapin argued that, although § 5
requires only that “a copy of the warrant” be provided to the
person from whom or from whose premises property was taken,
the “warrant” referred to in § 5 must include the affidavit if
one is attached as permitted by § 4 (in lieu of a statement of
probable cause in the warrant itself). The Chapin majority
agreed, citing Garvin, supra at 98-99. Judge Hood,
dissenting, disagreed and would have held that, “[p]ursuant to
the plain language of this statute, the officer is only
required to leave a copy of the search warrant itself . . . .”
Chapin, supra at 208 (emphasis supplied).
14
We note again that the liquor law search warrant
provision at issue in Moten and its prohibition-era progeny
was not a predecessor of MCL 780.654; MSA 28.1259(4). See n
12.
17
thereto, must state the grounds or the probable
cause for its issuance.
* * *
Thus, despite recodification of the statute,
[the holding in Garvin that, where a supporting
affidavit is used in lieu of a statement of
probable cause in the warrant pursuant to § 4, a
copy of the affidavit becomes part of the “copy of
the warrant” that must be provided to the defendant
pursuant to § 5] is consistent with the Supreme
Court’s pronouncement in Moten, Bules, and Galnt
that the material facts in support of the issuance
of a search warrant must be included with the
search warrant. [Id. at 201-203.]
Moving on to the question of the proper remedy for a
violation of § 5, the Chapin majority declined to follow the
holdings of Garvin and Pipok that suppression was not
required:
[I]n Garvin the Court held that the failure of
law enforcement officers to comply with the
statutory requirement to attach a copy of the
affidavit to the copy of the warrant provided or
left does not require suppression of the evidence
seized pursuant to the warrant because the
requirement is merely procedural. See also [Pipok,
supra]. However, Garvin’s holding is inconsistent
with the Supreme Court’s pronouncement in Moten,
Galnt, and Bules that violation of the statutory
requirement that the search warrant state the
grounds or probable cause for issuance of the
search warrant renders the warrant invalid and
requires suppression of the evidence. Because
Moten, Galnt, and Bules remain good law, we must
follow their precedent. Thus, because officials
left the warrant at defendant’s home without the
supporting affidavit, and the warrant itself did
not state the probable cause grounds, the circuit
court properly suppressed the evidence. See [238
Mich App 498]. [Chapin, supra at 203-204.]
Judge Hood dissented, opining that Moten was
distinguishable because it addressed a statutory violation
different from the violation at issue in Chapin:
18
Review of the statutes at issue reveals that
Moten, supra, does not govern this case. The issue
in Moten involved the statutory requirements that
must be contained within a search warrant, now
codified at MCL 780.654; MSA 28.1259(4). The
defendant in Moten never took issue with the
delivery of the search warrant that was left at the
home, but rather, took issue with the contents of
the search warrant itself.
* * *
In the present case, MCL 780.654; MSA
28.1259(4) provides that the search warrant must
contain the basis of probable cause within the
document or in lieu thereof, a copy of the
affidavit may be attached thereto. Defendant does
not dispute that at one time, the two documents,
the search warrant and the supporting affidavit,
were both available. . . . [Rather,] [d]efendant’s
challenge . . . involves MCL 780.655; MSA
28.1259(5). . . .
* * *
Once it is accepted that Moten is not
controlling, some perceived conflict with prior
decisions of this Court either does not exist or is
distinguishable. First, it should be noted that
[238 Mich App 495] is without precedential value
because a majority of the judges concurred in the
result only and did not concur in the rationale
underlying the decision. . . . Additionally, the
decision of [Pipok, supra] is not controlling
because it involved the statutory interpretation of
MCL 780.654; MSA 28.1259(4), not the statute at
issue here. Instead, this case is factually in
accordance with the decision of [Garvin, supra].
Both cases address the issue of an alleged
technical failure to comply with MCL 780.655; [MSA
28.1259(5)], and the Garvin Court concluded that
that failure did not require suppression of the
evidence. The Garvin decision was criticized and
deemed wrongly decided for its failure to address
the Moten decision. [238 Mich App] 502-503.
However, as indicated, when the actual language of
the statute addressed in Moten is traced, one
concludes that the statute was recodified at MCL
780.654; MSA 28.1259(4). The issue before this
panel and the Garvin Court [involves] MCL 780.655;
MSA 28.1259(5), a statute not addressed by [the]
Moten Court. Accordingly, the precedent of Moten
would not be disregarded in reaching this holding.
19
[Id. at 206-210.]
4. APPLICATION OF MOTEN TO A VIOLATION OF § 5
We agree with much of Judge Hood’s dissenting analysis
in Chapin with respect to the precedential value of Moten and
its progeny in the context of a violation of MCL 780.655; MSA
28.1259(5). Moten, Bules, and Galnt did not address the
statutory violation present in Chapin and in this case.
Accordingly, these decisions are simply not controlling here.
We first note that defendant in the case at bar makes no
claim that § 4 was violated,15 that the search warrant itself
was otherwise invalid, or that her constitutional rights were
in any way violated by the issuance or execution of the
search warrant. Rather, her claim is that § 5 was violated
because the officers failed to provide her with a copy of the
affidavit at the time of the execution of the warrant. It is
on this basis that defendant contends that the seized
firearms must be suppressed.
The statutory violation at issue in Moten, Bules, and
Galnt is not comparable to the statutory violation at issue
in the case at bar. It is possible to analogize 1922 CL
7079(27)–the liquor law search warrant provision at issue in
Moten–to § 4 of the current statutory warrant scheme, because
15
Defendant has never claimed that the warrant itself was
invalid; nor has she ever claimed that the original search
warrant issued by the federal magistrate did not include an
affixed copy of the affidavit. Indeed, we note that the face
of the search warrant states: “See attached
affidavit–continued on the attached sheet and made a part
hereof.” [Emphasis supplied.]
20
both those statutes pertain to the warrant form. Where the
form of the warrant is deficient, the resulting search may be
constitutionally defective.16 In contrast, § 5 of Michigan’s
present statutory warrant scheme sets forth procedural
requirements that are to be followed by the police during and
after the execution of an otherwise facially valid search
warrant. A violation of § 5, therefore, does not render the
warrant itself invalid, or the search unreasonable.
We leave for another day the question of the proper
remedy for a violation of the requirement of § 4 that the
warrant either recite the probable cause grounds or, in lieu
of such a recitation, incorporate the affidavit by
attachment. Because Moten did not address a violation of a
statutory prescription regarding procedural measures to be
taken by the police in their execution of an otherwise valid
search warrant, we find it to be inapposite to this case.
5. LEGISLATIVE INTENT
Having determined that Moten provides no guidance with
respect to the issue before us–whether a technical violation
of MCL 780.655; MSA 28.1259(5) requires application of the
16
US Const, Am IV (“no Warrants shall issue, but upon
probable cause, . . . particularly describing the place to be
searched, and the persons or things to be seized”); Const
1963, art 1, § 11 (“[n]o warrant to search any place or to
seize any person or things shall issue without describing
them”). See, e.g., Galnt, supra (where search warrant did not
recite the material facts alleged in the affidavit as required
by § 27 of the liquor law, the warrant was “void” and,
therefore, the search violated the defendant’s constitutional
right under Const 1908, art 2, § 10, to be free from
unreasonable searches and seizures).
21
exclusionary rule–we turn to the statute itself.
We have recently had occasion to consider whether
evidence obtained during the execution of a search warrant
must be excluded where the executing officers violated our
“knock and announce” statute, MCL 780.656; MSA 28.1259(6).17
In Stevens, supra, we held that the Court of Appeals erred in
holding that the exclusionary rule applied to a violation of
§ 6, where the search was of proper scope under a valid
warrant.18 We first noted that whether suppression is
required for a violation of a statute is a question of
statutory interpretation, and that our focus must be on
legislative intent. Id. at 644. Finding that nothing in the
language of the “knock and announce” statute indicated that
the Legislature intended that the exclusionary rule be
applied to a violation of the statute, we “decline[d] to
infer such a legislative intent,” because “[t]o do otherwise
would be an exercise of will rather than judgment.” Id. at
645 (emphasis in original).
17
The officer to whom a warrant is directed, or
any person assisting him, may break any outer or
inner door or window of a house or building, or
anything therein, in order to execute the warrant,
if, after notice of his authority and purpose, he
is refused admittance, or when necessary to
liberate himself or any person assisting him in
execution of the warrant.
18
We also held in Stevens that the Fourth Amendment
violation in that case did not require application of the
exclusionary rule, primarily because of the lack of any causal
connection between the constitutional knock and announce
violation and the evidence seized. Stevens, supra at 635-643.
As stated, defendant in this case makes no claim that her
Fourth Amendment rights were violated.
22
In holding that suppression was not an appropriate
remedy for the violation of “knock and announce” principles
in Stevens, we noted that the exclusionary rule “is not meant
to put the prosecution in a worse position than if the police
officers’ improper conduct had not occurred, but, rather, it
is to prevent the prosecutor from being in a better position
because of that conduct.” Id. at 640-641, citing Nix v
Williams, 467 US 431, 443; 104 S Ct 2501; 81 L Ed 2d 377
(1984). We additionally found persuasive the fact that the
“knock and announce” requirement “does not control the
execution of a valid search warrant; rather, it only delays
entry.” Stevens, supra at 645. Where it was the authority
of the valid search warrant that led to the discovery of the
evidence, not the means of entry, there was simply no causal
relationship between the violation and the seizing of the
evidence. Because the discovery of the evidence was
independent of the officers’ failure to comply with the
statutory “knock and announce” requirement, we found that
suppression of the evidence was not warranted. Id. at 646
647.
As in Stevens, we now hold that suppression of the
evidence seized in this case is not an appropriate remedy for
the statutory violation at issue. Nothing in the language of
§ 5 provides any basis to infer that it was the legislators’
intent that the drastic remedy of exclusion be applied to a
violation of the statute. Furthermore, the exclusionary rule
“‘forbids the use of direct and indirect evidence acquired
23
from governmental misconduct, such as evidence from an
illegal police search.’” Stevens, supra at 636, quoting
People v LoCicero (After Remand), 453 Mich 496, 508-509; 556
NW2d 498 (1996) (citations omitted; emphasis supplied). The
requirements of § 5 are ministerial in nature, and do not in
any way lead to the acquisition of evidence; rather, these
requirements come into play only after evidence has been
seized pursuant to a valid search warrant. Because the
exclusionary rule pertains to evidence that has been
illegally seized, it would not be reasonable to conclude that
the Legislature intended to apply the rule to a violation of
the postseizure, administrative requirements of § 5. Just as
there was no causal relationship between the violation of the
“knock and announce” statute and the seizing of the evidence
at issue in Stevens, there is in the instant case no causal
relationship between the officers’ failure to provide
defendant with a copy of the search warrant affidavit and the
seizure of the firearms.
We note further that the deterrent purpose19 of the
exclusionary rule would not be served by ordering suppression
of the evidence in this case. The officers were executing a
valid federal warrant that complied with all federal
requirements. The federal magistrate had ordered that the
19
“‘The core rationale consistently advanced . . . for
extending the exclusionary rule to evidence that is the fruit
of unlawful police conduct has been that this admittedly
drastic and socially costly course is needed to deter police
from violations of constitutional and statutory protections.’”
Stevens, supra at 637, quoting Nix, supra at 442-443.
24
affidavit be sealed. Defendant does not argue that this
procedure violated her constitutional rights or that it ran
afoul of any federal requirements concerning the validity of
search warrants. Defendant’s sole contention is that the
failure to leave a copy of the affidavit at her residence or
to otherwise “forthwith” provide her with the affidavit
violated MCL 780.655; MSA 28.1259(5). The officers cannot be
faulted for their inability to provide a copy of the
affidavit, since the affidavit was under seal by direction of
a federal magistrate. Because there was no police
“misconduct” in this case, the deterrent purpose of the
exclusionary rule would not be served by applying it under
these circumstances. Moreover, because the police would have
recovered the weapons irrespective of the alleged statutory
violation, suppression of the evidence in this case would
“undermine the adversary system by putting the prosecution in
a worse position” than if the violation of § 5 had not
occurred. Stevens, supra at 637, citing Nix, supra at 447.
Application of the exclusionary rule would be
particularly inappropriate in the case of a valid federal
warrant. Were we to use the exclusionary rule in this case
to deter officers from "violating" a state warrant execution
provision, we would effectively encourage officers to violate
a federal magistrate's order sealing an affidavit. While our
statutes do not govern federal warrants, Michigan may, of
course, prescribe its own rules for the admission or
exclusion of evidence. Our Legislature has not, however,
25
expressed an intent to require suppression even when officers
executing a Michigan search warrant violate § 5; it certainly
has not mandated suppression when evidence was obtained
through a valid federal warrant.
V. CONCLUSION
The police officers in this case were acting under a
valid search warrant and within the scope of that warrant.
Defendant’s constitutional rights were in no way infringed.
There is no causal connection between the seizure of the
firearms and the officers’ failure, after the execution of
the warrant, to provide defendant with a copy of the search
warrant affidavit.
We are unable to discern any legislative intent that a
violation of the technical requirements of MCL 780.655; MSA
28.1259(5) result in the suppression of evidence obtained
pursuant to a valid search warrant. Moreover, such a result
would be particularly unwarranted in the instant case, where
there has been no police misconduct and where, therefore, the
deterrent purpose of the exclusionary rule would not be
served. We therefore hold that the trial court and the Court
of Appeals erred in applying the exclusionary rule as a
remedy for this statutory violation. The evidence should not
have been suppressed, and the case should not have been
dismissed, for a violation of the procedural requirements of
§ 5. Accordingly, we reverse and remand this matter to the
trial court for further proceedings consistent with this
26
opinion.20
CORRIGAN , C.J., and TAYLOR , and MARKMAN , JJ., concurred with
YOUNG , J.
20
We note that, in addition to the statutory violation,
defendant raised before the trial court several other grounds
in support of her motion to suppress evidence. On remand, the
trial court shall address any grounds raised in support of the
motion to suppress that were not disposed of in the trial
court’s oral opinion of September 9, 1998.
27
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. 115980
MICHELLE ANN SOBCZAK-OBETTS,
Defendant-Appellee.
____________________________________
WEAVER , J. (concurring).
I concur in the result, but write separately because I
believe that the first step in resolving this matter is
determining whether the state warrant requirements should be
applied to a federal search warrant executed during a search
conducted jointly by federal and state authorities. In my
opinion, the state warrant requirements should not apply in
this situation, and People v Pipok (After Remand), 191 Mich
App 669, 671; 479 NW2d 359 (1991), was wrongly decided.1
Because the state warrant requirements should not apply to
these facts, the firearms found in defendant’s home should
not have been suppressed.
Because I would decline to apply the state warrant
requirements to these facts, I express no opinion concerning
1
People v Paladino, 204 Mich App 505; 516 NW2d 113
(1994), a case in which I participated at the Court of
Appeals, cited the Pipok holding in its analysis. Pipok was
binding authority on the Court of Appeals when Paladino was
decided. Thus, Paladino did not address whether Pipok was
correctly decided.
whether the exclusionary rule would apply to a procedural
violation of the state requirements.
2
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. 115890
MICHELLE ANN SOBCZAK-OBETTS,
Defendant-Appellee.
________________________________
CAVANAGH, J. (dissenting).
Because I disagree with the majority’s decision to admit
the challenged evidence, I respectfully dissent. I would
affirm the judgment of the Court of Appeals, and, further, I
would not disavow the Court of Appeals decision in People v
Chapin, 244 Mich App 196; _ NW2d _ (2001).
First, I cannot agree that this Court’s decision in
People v Moten, 233 Mich 169; 206 NW 506 (1925), is not
applicable to this case. There, this Court had to decide
whether evidence gathered under a warrant that did not recite
the basis for its issuance, as required by statute, had to be
excluded. Id. at 174. Analyzing this question, the Court
quoted approvingly from United States v Kaplan, 286 F 963,
968 (SD Ga, 1923), which stated that such warrant
requirements ensure “that the accused may promptly know what
is the accusation against him, upon what it is based . . . .”
The Moten Court concluded that the warrant was not complete
and in violation of the statute. Thus, the Court concluded
that the accused did not “promptly know” the accusation
against him or its basis, and it excluded the evidence
gathered under the warrant. See Moten, supra at 173-174.
The majority distinguishes Moten, concluding that Moten may
require exclusion of evidence gathered under a warrant that
does not have the proper statutory form, but does not require
exclusion when the asserted statutory shortcoming deals only
with the procedure of executing the warrant. It
characterizes defendant’s complaint as only procedural, and
not within Moten. See slip op at 26-27.
However, the offered distinction does not account for
the Moten Court’s reasoning. There, the warrant did not
recite the basis for its issuance, depriving the defendant of
notice of the reasons for the search, and this Court excluded
the evidence. In this case, even though the warrant may at
some prior time have had an affidavit attached to it, see
slip op at 25, n 15, when it was delivered to defendant, it
did not. In fact, defendant was not informed of the
affidavit’s contents until some four months after the search.
Thus, defendant did not have notice of the reasons for the
search; she could not “‘promptly know what [was] the
accusation against [her], upon what it [was] based . . . .’”
Moten, supra at 173, quoting Kaplan, supra. Regardless of
whether the instant warrant ever had an affidavit reciting
its basis, like the warrant that was delivered in Moten, the
2
instant warrant did not state its basis when it was delivered
to defendant. Like the defendant in Moten, then, the instant
defendant should not have the evidence gathered under such a
warrant admitted against her.
Second, I fear that the majority’s search for
legislative intent effectively upends the intent that is most
clear. Though MCL 780.655; MSA 28.1259(5) does not provide
on its face for any remedy, it clearly indicates the
Legislature’s policy of requiring officers to leave a copy of
the warrant, which must recite the basis for its issuance,
with the searched party or at the searched premises. Under
the decision in this case, however, there is no consequence
for a failure to do so.1 Further, under the majority’s
reasoning, there would similarly be no consequence for a
failure to tabulate the property seized, leave a copy of the
tabulation with the searched party or at the searched
premises, file that tabulation, or safely keep the property
seized.2 Each of these requirements is ministerial in nature
and occurs after the search, but each is required by this
statute. Although I would not anticipate police misconduct,3
1
Notably, the majority has not relied on the search
warrants act’s penalty provision, MCL 780.657; 28.1259(7), as
it did, erroneously in my view, in People v Stevens (After
Remand), 460 Mich 626, 641; 597 NW2d 53 (1999), as a reason
not to apply the exclusionary rule in this case.
2
Indeed, this Court has already indicated that police
may destroy seized items without actually running afoul of
this statute. See People v Jagotka, 461 Mich 274, 279-280;
622 NW2d 57 (1999); see also id. at 282-283 (CAVANAGH , J.,
dissenting).
3
Whatever the role of the federal actors in this case,
(continued...)
3
even if officers did purposefully ignore this statute’s
requirements, it apparently would make no difference. Rather
than leave the Legislature’s policy of requiring police to
provide a warrant stating its basis so doubtful, I would
exclude the challenged evidence to ensure that the policy is
observed.
In closing, in People v Sloan, 450 Mich 160, 184, n 18;
538 NW2d 380 (1995), this Court stated that excluding
evidence as a remedy for a statutory violation was not a “new
phenomenon.” It apparently has now become the old
phenomenon, though, as the Court continues the trend it began
in People v Stephens (After Remand), 460 Mich 626, 641; 597
NW2d 53 (1999), and continues in this case, toward admitting
evidence despite statutory violations. In my view, this is
an erroneous course, so I continue to be unable to join this
trend. I would exclude the challenged evidence, affirm the
Court of Appeals, and would not disapprove of the Court of
Appeals decision in Chapin, supra. Therefore, I must
respectfully dissent.
KELLY , J., concurred with CAVANAGH , J.
3
(...continued)
the prosecution has conceded that state law applies.
4
People v. Sobczak-Obetts
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