PEOPLE OF MI V GLENN GOLDSTON
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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
1963,
art
1,
§
search
11.
and
seizure
Indeed,
provision,
records
of
Const
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.
therefore
adopt
the
exclusionary
rule
exclusionary
rule
in
is
purpose would not be
good-faith
Michigan.
to
deter
exception
The
police
to
purpose
of
misconduct.
We
the
the
That
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.
helmet and jacket.
He also carried a firefighter’s
Defendant told a police officer that he
was collecting money for the firefighters in New York, but
denied
being
a
firefighter
2
himself.
The
officers
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
firearm, and marijuana.
with
being
a
felon
firefighter
paraphernalia,
a
The prosecutor charged defendant
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
soliciting
date
money.
that
The
the
police
court
thus
observed
defendant
concluded
that
the
affidavit did not establish probable cause for the issuance
3
of a warrant and dismissed the felon in possession, felonyfirearm, 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.
that
because
the
Fourth
Amendment
The Court reasoned
right
is
enforceable
against the states by virtue of the Due Process Clause of
the
Fourteenth
exclusion
of
Amendment,
illegally
the
obtained
same
sanction,
evidence,
i.e.,
must
apply
state prosecutions as well as to federal prosecutions.
the
to
Id.
at 655, 660.
In
Leon,
the
Supreme
Court
exception to the exclusionary rule.
adopted
a
good-faith
In that case, the
Court rejected the notion that “the exclusionary rule is a
necessary corollary of the Fourth Amendment.”
at 905-906.
Leon, supra
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.
of
rule
the
exclusionary
is
that
The primary benefit
it
deters
official
misconduct by removing incentives to engage in unreasonable
searches
and
preventing
trustworthy
seizures.
the
use
in
evidence
The
the
costs,
however,
prosecutor’s
obtained
in
case-in-chief
reliance
warrant subsequently found to be defective.
include
on
a
of
search
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
6
of
the
criminal
justice
system”
and
breeds
contempt
administration of justice.
for
the
law
and
Id. at 907-908.
the
Thus, the
Court recognized the potential for the exclusionary rule to
impede
the
resulting
truth-seeking
in
guilty
function
parties
of
judiciary,
evading
either
the
punishment
altogether or receiving favorable plea bargains.
concluded
that
“the
marginal
or
The Court
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.
opined
that
no
deterrence
occurs
when
The Court
police
rely on a warrant later found to be deficient.
reasonably
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
7
the
scope
of,
and
in
objective,
obtained
good-faith
from
a
reliance
judge
or
on,
a
search
magistrate.
warrant
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.
The
Court
could
discern
no
basis
for
Id. at 916.
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
exclusion
would
misconduct.
officer’s
on
a
case-by-case
further
the
basis
purpose
of
and
only
where
deterring
police
The Court emphasized, however, that a police
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.
that
the
good-faith
exception
Further, the Court stated
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
exclusionary rule.
Mapp
Court
rule,
exclusionary
rule
follow
Id. at 568-574.
required
exclusionary
would
the
this
in
states
Court
federal
Thus, long before the
to
follow
elected
Michigan.
the
This
the
Weeks
to
follow
the
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
constitutional provisions.
followed
4
the
exclusionary
seized
in
Rather, the
rule
as
a
violation
of
Marxhausen
matter
of
Court
policy
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
our
preference in favor of the federal law.5
the
Weeks
exclusionary
rule,
our
Thus, similar to
exclusionary
rule
in
of
the
Michigan is purely a common-law, judge-made rule.
Notwithstanding
the
Leon
Court’s
adoption
federal good-faith exception to the exclusionary rule, to
date,
this
exception.
5
Court
has
not
recognized
a
similar
state
The United States Supreme Court has stated,
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
standards
on
the
states
searches
Amendment requires.
are
and
free
seizures
to
impose
than
the
higher
Fourth
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
United
States
identical.7
767
(2003).
Constitution
6
States
Supreme
Court’s
Constitution,
even
interpretation
where
the
of
language
the
is
Harvey v Michigan, 469 Mich 1, 6 n 3; 664 NW2d
Conversely,
consistent
we
are
free
to
with
the
United
interpret
States
our
Supreme
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;
reason’
506
NW2d
should
conclusive
209
not
(1993),
be
however,
understood
presumption
as
artificially
a
“‘compelling
establishing
linking
constitutional interpretation to federal law.”
a
state
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
intent
factors
of
the
are
also
ratifiers
helpful
with
in
respect
determining
to
our
the
state
constitutional provisions.
In People v Nash, 418 Mich 196; 341 NW2d 439 (1983)
(opinion
by
BRICKLEY,
J.),
13
this
Court
examined
the
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
constitutional
stringent
is
clear
convention
search
and
from
that
seizure
the
the
records
people
protections
under the Fourth Amendment at that time.
of
the
favored
less
than
required
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
consistent
intended
of
with
to
Const
the
retreat
1963,
above
from
art
1,
§
conclusion
the
11
that
exclusionary
itself
is
the
people
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
constrain
enumerated
this
items.
Court’s
authority
This
clause
regarding
specifically enumerated in the provision.
does
not
items
not
In other words,
the directive of the people that this Court may not exclude
certain
other
evidence
evidence.
does
The
not
require
the
antiexclusionary
exclusion
proviso
of
all
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.
the
proviso
does
not
restrict
this
Court’s
Because
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
modify,
or
the
above
retreat
authority,
from
are
free
to
Marxhausen
the
we
retain,
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
exclusionary rule announced in Marxhausen.
created
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).
be
Thus, the goal of the exclusionary rule would not
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
18
designed
to
deter
police
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.”
918.
Thus,
in
determining
whether
to
Id. at
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
requires.
than
the
Fourth
Amendment
In fact, examination of the 1961 Constitutional
Convention
stringent
time,
provision
reveals
that
application
but
felt
of
the
delegates
the
exclusionary
constrained
by
Mapp
favored
a
less
at
that
limit
the
rule
to
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 906907.
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
paraphernalia.
the
The
marijuana,
police
firearm,
officers’
and
firefighter
reliance
on
the
district judge’s determination of probable cause and on the
technical sufficiency of the search warrant was objectively
reasonable.
or
The information in the affidavit was not false
misleading,
and
the
issuing
abandon[]” her judicial role.
judge
did
not
“wholly
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 3537-4-5), 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 caseby-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
defendant.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
25
against
S T A T E
M I C H I G A N
O F
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 goodfaith
exception
recognized
by
separately
only
to
the
in
the
exclusionary
United
States
order
to
rule,
Supreme
respond
an
exception
Court.
more
I
fully
write
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
1
Post
at
1,
4,
5,
10.
It
must
be
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,
Constitution
or
the
United
States
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
firearm
basement
under
did
the
not
sofa
exist,
was
as
never
though
really
the
illegal
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
citizens
defendant's
brought
exercising
their
peers—a
together
judgment
jury
for
and
comprised
the
sole
common
sense
of
twelve
purpose
in
of
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
gives
urging
little
such
a
justice
consideration
to
system,
the
the
effect
dissent
that
also
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
determined
verdicts
in
inaccurately.
which
The
guilt
or
dissent's
innocence
is
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.
these
jurors,
as
well
as
the
The attitude of
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
exclusionary
"managed
rule
and
to
exist
for
our
streets
decades
have
yet
with
to
the
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
have, in fact, grown enormously over recent decades.3
3
crime
Had
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%.
<http://
(continued . . . .)
5
our parents and grandparents, at the time of the inception
of an exclusionary rule in Michigan lacking a good-faith
exception, been able to look into their future and compared
levels of violent crime then and now, it is quite certain
that they would have viewed many of our streets today as
"teeming" with crime.
Doubtlessly, however, the people of
Michigan will continue to "manage to exist" at whatever
levels of crime are contributed to by individual criminal
justice decisions of the courts.4
www.disastercenter.com/crime/micrime.htm> (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
exclusionary rule has been adopted.5
exception
to
the
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,
5
have
been
convicted
of
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, 257258; 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
exception.
exist"
More
despite
the
accurately,
absence
my
of
position
a
good-faith
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
8
is
that
the
dissent's
constitution is not that of James Madison,6 not that of the
United States Supreme Court, and not that ratified by the
people
of
Court
has
Michigan.
Rather,
made
that
clear
the
the
United
States
exclusionary
rule
Supreme
is
of
“quasi-constitutional” dimension and that its applicability
in
particular
contexts
is
a
function
pragmatic and balancing considerations.7
of
a
variety
of
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 1516 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
preventing
police
the
have
Amendment.
The
incrimination
violated
have
of
been
deterrent
those
whose
considered
values
of
rights
the
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
has
rule
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
Amendment.
But
method
it
of
does
not
effectuating
follow
that
the
Fourth
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.”
11.
13
Id. at 355 n
“[W]e
proceedings
conclude
of
that
evidence
exclusion
unlawfully
from
federal
seized
by
a
civil
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
[grudgingly]
function,
the
rule
taken,
medicament;
no
needed
to
the
combat
is
more
a
needed,
should
disease.
be
but
swallowed
Granted
that
than
so
is
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
14
by
Congress.’
Amsterdam,
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,
competing policies.”
they
must
be
evaluated
in
light
of
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.”
“In
these
Id. at 494-495.
circumstances
we
are
persuaded
that
the
Janis balance between costs and benefits comes out against
applying
the
exclusionary
hearings held by the INS.”
“As
with
exclusionary
any
rule
rule
properly
deportation
device,
has
been
restricted
those
Thus, in various circumstances, the Court has
rule's
deterrent
is
to
the
advanced.
the
purpose
of
in
whether
remedial
application
situations
examined
its
civil
Lopez-Mendoza, supra at 1050.
remedial
which
in
effectively
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
‘substantial social costs.’”
benefits
outweigh
its
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
invoked—and
it
in
which
did
not
it
tends
exist
to
for
be
many
most
regularly
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
constitution
is
Michigan
one
Supreme
that
Court.
ill-serves
the
responsible criminal justice system.12
deterrent
effect,
the
absolute
exclusionary
only
would
dissent's
interests
of
a
Given its lack of
consequence
rule
The
be
of
the
to
dissent's
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
M I C H I G A N
O F
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
expediency
we
into
may
be
forsaking
lured
our
by
the
temptations
commitment
individual liberty and privacy.”
to
of
protecting
United States v Leon, 468
US 897, 929-930; 104 S Ct 3405; 82 L Ed 2d 677 (1984)
(Brennan, J., dissenting).
to
ignore
Michigan’s
Today, the majority has chosen
history
against unreasonable searches.
of
protecting
our
citizens
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
constitution.1
than
that
provided
by
the
federal
I disagree with the majority that Michigan
must have a compelling reason to provide greater protection
to
our
citizens
constitution.
than
Instead,
that
I
provided
believe
by
this
the
Court
federal
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
Marxhausen,
the
204
exclusionary
Mich
559,
573-574;
rule
171
in
NW
People
557
v
(1919).
“[T]his Court created a body of state constitutional search
and
seizure
law
and
adopted
an
exclusionary
rule,
before either was subject to a federal floor.”
all
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
linking
law.”
state
a
conclusive
constitutional
presumption
interpretation
artificially
to
federal
Sitz v Dep’t of State Police, 443 Mich 744, 758; 506
NW2d
209
(1993).
compelling
ignores
the
The
reason
test
majority’s
disregards
jurisprudential
rule in this Court.
history
application
this,
of
the
of
the
however,
and
exclusionary
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
2
This Court is “not
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
exception,
is
more
decision
than
not
to
sufficient
adopt
to
a
good-faith
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.
1963,
the
United
States
Supreme
Court
had
adopted
In
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.”
759.
Sitz, supra at
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
documented purpose of the exclusionary rule.
other
well-
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;
serves
to
20
L
deter
Ed
2d
police
889
(1968)
misconduct
(The
and
exclusionary
preserve
rule
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.”
supra at 13.
Terry,
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
inestimable human liberties . . . .”
charter
of
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, <http://douglasarchives.org/otis_a34.
htm> (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
Constitution
as
decision,
an
the
impediment
majority
that
courts
around for the justice system to work.
treats
must
our
maneuver
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.
to
issue
a
search
warrant
exists
“Probable cause
where
there
is
a
‘substantial basis’ for inferring a ‘fair probability’ that
contraband
or
evidence
particular place.”6
of
a
crime
will
be
found
in
a
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
concedes the finding of lack of probable cause.
10
to
Leon,
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.
e.g., Leon, supra at 904.
See,
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
that
good-faith
the
law
reasonable
exception
enforcement
officer
circumstances.’”
would
Leon,
is
premised
officer
and
supra
was
should
at
on
belief
“‘acting
act
920,
the
in
quoting
as
a
similar
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.”
Unlike
enforcement
the
majority,
officers
more
Id. at 920 n 20.
I
give
credit,
our
and
I
trained
law
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.
magistrate
would
have
directed
A neutral and detached
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
argue
rhetoric,”
that
the
yet
still
dissent’s
manage
to
approach
hysterically
leaves
criminal
defendants “on the streets to continue to prey upon their
communities . . . .”
an
allegedly
determining
quite
a
dissent
our
marvel
for
Ante at 1, 7.
increased
citizens’
to
crime
rate
is
constitutional
watch
the
attempting
to
constitutional liberties.9
While I am unclear how
concurrence
protect
relevant
rights,
it
criticize
our
in
is
the
citizens’
At its core, the concurrence
9
Notably, crime rates have actually been going down.
See, e.g.,<http://www.ojp.usdoj.gov> and <http://www.fbi.
gov> (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
view
indicates
the
fundamental
of
our
citizens’
majority
and
concurrence’s
difference
constitutional
views.
between
my
liberties
and
the
believe
that
the
I
Constitution exists to protect all citizens, and the Bill
of
Rights,
the
first
ten
amendments,
to
protect
citizens from unlawful acts by the government.
all
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
enforcement
knowledge
to
officers
that
even
argue
will
that
not
“mistakes”
the
be
that
actions
of
law
influenced
by
the
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.
our state.
I have much more faith in the people of
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
constitutional
not
have
liberties
to
and
make
a
choice
justice.
I
between
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.
citizens’
The concurrence indicates its belief that our
constitutional
liberties
because it will make us “safer.”
should
be
discarded
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
face.
this
Court
should
resolutely
set
its
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,
justices . . . .”
unrecognizable
to
as
well
as
Ante at 19-20.
the
to
generations
of
framers
I believe what would be
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.
legacy.
History
will
be
our
Our decisions are our
judge,
and
I
welcome
its
review.
When
our
constitutional
courts.
government
rights,
it
violates
should
find
our
no
citizens’
refuge
in
our
Today, the majority disregards decades of reasoned
19
and
sound
citizens
jurisprudence
against
by
this
unreasonable
Court
searches.
protecting
Therefore,
respectfully dissent.
Michael F. Cavanagh
Marilyn Kelly
20
our
I
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