Michigan Criminal Attorneys Blog
The Fourth Amendment to the United States and Michigan Constitutions, Michigan Statutory law, and case law govern the use and legality of search warrants in Michigan for State court proceedings. The 4th Amendment to the United States Constitution provides for “[t]he 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”. The remedy for an improper search is the exclusion of evidence. Mapp v. Ohio, 367 US 643 (1961). There are a number of exceptions to the search warrant requirement that sometimes justify warrantless searches to occur (for example: consent, plain view; exigent circumstances, automobile, search to lawful arrest, searches at the boarder or airport, the Patriot Act, etc.). The applicability of these exceptions depends upon the facts of the particular case. With regard to any criminal law issue that may pertain to you – seek the assistance of an experienced criminal lawyer such as the lawyers at Hilf & Hilf, PLC.
Obtaining a Search Warrant
Search warrants are issued by either District Court Judges or magistrates that are authorized by a District Court Judge to issue search warrants to law enforcement. A District Court Judge or magistrate may issue a search warrant for anywhere in the State of Michigan, and is not limited by the District Court’s jurisdiction where the Judge is seated. People v. Fiorillo, 195 Mich App 701 (1992). The standard of proof for the issuance of search warrants is probable cause. A District Court Judge or magistrate needs to find that there is a “fair probability” that the evidence seized will be at the location to be searched. People v. Russo, 439 Mich 584 (1992). Probability is not a prima facie showing, nor a preponderance of the evidence. Illinois v. Gates, 103 S Ct 2317 (1983). It is permissible for law enforcement to obtain a search warrant that anticipates that evidence will be found at a particular location as long as the search warrant indicates that there is probable cause that the item described is likely to be found in the place described. For example, a seizure of drugs from a traffic stop that suggest drug distribution may lead to a search warrant of the home of the vehicle occupant. United States v. Grubbs, 126 S Ct 1494 (2006); People v. Kaslowski, 239 Mich App 320 (2000). The search warrant can contain multiple locations to search if the allegations in the affidavit for search warrant satisfy the requisite finding of probable cause. People v. Cyr, 113 Mich App 213 (1982).
A warrant may be based upon the personal observation of a police officer, or on hearsay information from another officer. A warrant may also be based on information from an informant who does not need to be named. If the informant is named, the affidavit must show affirmative allegations that the informant spoke with personal knowledge. If the informant is unnamed, the affidavit must show affirmative allegations that the informant spoke with personal knowledge and facts from which the District Court Judge or magistrate can conclude that the informant is credible or the information is reliable. See MCL 780.653.
Pursuant to MCL 780.652 a search warrant may be obtained to search for the following: stolen or embezzled property; property designed and intended for use or which is or has been used as a means of committing crimes; property possessed, controlled, or used in violation of law; evidence of crime or criminal conduct; contraband; bodies; people or animals who may be victims of crime; whenever permitted by separate statute.
A search warrant must specify the items anticipated to be found. However, if the police officer comes across another incriminating item in plain view, the officer may seize the item. The incriminating nature of the item must be immediately apparent. People v. Secrest, 413 Mich 521 (1982). A search warrant for premises authorizes the search of any contained which might contain the items sought (for example, a safe). People v. Daughenbaugh, 193 Mich App 506 (1992).
The warrant must also specify the place to be searched. But a search warrant for the entire premises at a particular location may also include the search of cars found on the premises in which the items could be located. People v. Jones, 249 Mich App 131 (2002).
Executing a Search Warrant
A police officer must knock and announce for both a search warrant (MCL 780.656) and an arrest warrant (MCL 764.21) under Michigan statutory law. This is also a requirement under the United States Constitution that the search is reasonable. Wilson v Arkansas, 115 S Ct 1914 (1995). However, a violation of the knock and announce rule does not lead to suppression of evidence when there is no causal connection shown between the violation and the ultimate discovery of the evidence (People v. Stevens, 460 Mich 626 (1999), when notice is otherwise provided (People v. Fetterley, 229 Mich App 511 (1998), and the existence of exigent circumstances (People v. Williams (after remand), 198 Mich App 537 (1993). The reasonableness of the entry is to be judged by the facts present at the time of the entry, which facts may provide exigent circumstances to excuse compliance with the knock and announce requirement. Richards v Wisconsin, 117 S Ct 1416 (1997).
A search warrant for premises does not authorize the search of persons found on the premises, unless probable cause is also established in the warrant or those particular persons. Ybarra v Illinois, 100 S Ct 338 (1979). However, the persons found on the premises may be searched on an independent basis. For example, if the premises in question being searched was an alleged drug house and a person on the premises was allegedly loitering in that drug house (which is a criminal offense), that person could be searched incident to arrest. People v Arterberry, 431 Mich 381 (1988). A search warrant for contraband carries with it the implicit authority to detain all persons present on or in the immediate vicinity of the premises until the search is completed. Michigan v Summers, 101 S Ct 2587 (1981); Bailey v United States, 133 S Ct 1031 (2013).
A police officer is required to serve a copy of the search warrant on a person on the premises searched, or leave a copy of the warrant at the scene, but the officer is not required to leave a copy of the affidavit on the scene. MCL 780.655(1). The police officer shall file an accurate tabulation of the property and things that were seized with the District Court Judge or magistrate. The tabulation may be suppressed from public view by order of the District Court Judge or magistrate until the final disposition of the case. The property and things that were seized shall be safely kept by the police officer so long as necessary for the purpose of being produced or used as evidence in any trial. MCL 780.655(2). As soon as practicable, stolen or embezzled property shall be restored to the owner of the property. Other things seized under the warrant shall be disposed of under the direction of the Judge or District Court magistrate, except that money and other useful property shall be turned over to the State, county, or municipality, the officers of which seized the property under the warrant. Money turned over to the State, county, or municipality shall be credited to the general fund of the State, county, or municipality. MCL 780.655(3).
Search Warrants versus Arrest Warrants
An arrest warrant carries with it the right to enter the suspect’s house to make an arrest. It does not give the right to conduct a general search, but the search of the immediate area around the suspect is proper as a search incident to a lawful arrest, and anything seen in plain view may be seized. The police officer must have reason to believe that the person sought is on the premises. The right to enter is only to the suspect’s residence; an arrest warrant does not authorize a police officer to enter a third party’s home for the purpose of effectuating an arrest. For that to occur, a separate search warrant must be obtained, or there must be the existence of a legal exception to the warrant requirement (consent, exigent circumstances, etc). The right to enter a home pursuant to an arrest warrant is only to arrest. Although the police are allowed to perform a limited protective sweep of the premises, the arrest warrant is not a search warrant and does not permit a warrantless search of the premises. Steagold v United States, 101 S Ct 1642 (1981); People v Johnson, 146 Mich App 705 (1985).
Attacking a Search Warrant
A Defendant’s attack on a search warrant affidavit must make specific allegations of either deliberate falsehood or a reckless disregard for the truth on the part of the affiant, together with an offer of proof. If the Defendant meets this standard, but the search warrant even without the challenged portions still provides probable cause, the warrant is valid. Franks v. Delaware, 98 S Ct 2674 (1978); People v Pointdexter, 90 Mich App 599 (1979); People v. Charles Williams, 240 Mich App 316 (2000). Even if a portion of the warrant is invalid because there is not probable cause to justify the search in its entirety, or a false statement is contained in the affidavit, the valid portions of the warrant may be severed and the evidence under the portions supported by probable cause will be validly seized. See People v. Mlotik, 221 Mich App 190 (1997) and People v. Kolniak, 175 Mich App 16 (1989). The passage of time can, but does not always prevent a finding of probable cause. People v. Russo, 439 Mich 584 (1992). If the legality of a search warrant is an issue, the presiding Judge usually conducts an evidentiary hearing to make a determination.
The failure of the affiant to sign a search warrant affidavit makes it presumptively invalid, but this is a presumption that may be rebutted by a showing that the facts were presented under oath to the District Court Judge or magistrate. People v. Mitchell, 428 Mich 364 (1987). However, if the District Court Judge or magistrate fails to sign the search warrant, that defect is fatal. People v. Locklear, 177 Mich App 331 (1989).
An error in the description of the premises does not require suppression of the warrant as long as the warrant was based upon objective facts known to the officer at the time of the warrant. Maryland v. Garrison, 107 S Ct 1013 (1987).
Evidence obtained in good faith reliance on the District Court Judge or Magistrate’s issuance of a search warrant is admissible even if the warrant affidavit does not technically establish probable cause. United States v Leon, 104 S Ct 3405 (1984). An error to the address of a place to be searched does not in itself make the warrant invalid. Where the description of the premises was correct, the right premises were in fact searched, and the police made reasonable inquiry into the right address before obtaining and executing the search warrant made the search valid. People v. Westra, 445 Mich 284 (1994).